DHARAM SINGH SURAIYA Vs. SATYENDRA LAL DUTT

JUDGEMENT

(1.) This is an appeal from a judgment and decree dated April 8, 1965, by which the Plaintiff -Appellant's suit for specific performance of an agreement of sale in respect of a property in Calcutta was dismissed by the learned trial Judge.

(2.) The facts out of which the appeal arises are as follows: On September 29, 1960, the Defendant through his Solicitor, S.K. Guha, offered to sell to the Plaintiff premises No. 63, Colutolla Street, Calcutta, free from all encumbrances at the price of Rs. 95,000. The offer was to remain open till October 4, 1960. On October 1, 1960, the Plaintiff wrote to S.K. Guha offering to purchase the premises on certain terms and conditions contained in that letter. One of the terms included in that letter was that the transaction will be completed within three months from the date of delivery of the title deeds relating to the property. The Plaintiff sent a cheque for Rs. 5,000. On October 3, 1960, the Plaintiff's offer contained in the letter of October 1, 1960, was accepted by the Defendant who promised to send the title deeds to the Plaintiff's Solicitors on November 2, 1960. Under cover of a letter dated November 2, 1960, S.K. Guha, the Solicitor of the Defendant wrote to Messrs. Mukherjee and Biswas who were the Plaintiff's Solicitors about the agreement between the parties and sent four documents along with that letter. The four documents that were included were:

(3.) The Defendant's Solicitor S.K. Guha said that the title of the property would appear from the statements in the plaint in Suit No. 766 of 1958 and from the documents disclosed therein. S.K. Guha offered to explain to Mr. Biswas of Messrs. Mukherjee and Biswas the Defendant's title further if Mr. Biswas so desired. On November 4, 1960, Messrs. Mukherjee and Biswas sent an 'accountable receipt' for the four documents which had been sent to them and told S.K. Guha that they had not received any formal instructions from D.S. Suraiya and that they had written to the Plaintiff for such formal instructions -On December 13, 1960, Messrs. Mukherjee and Biswas wrote to S.K. Guha and told him that they had perused the papers relating to the title of premises No. 37, Colutolla Street, which had been sent to them on November 3, 1960. They pointed out, however, that in the report filed by the Commissioner of Partition it had been directed that the title deeds of the property included in Lot A of Schedule 2 were to remain in the custody and possession of the Plaintiff in the said suit, i.e., Satyendra Lal Dutt (who is the Defendant in the instant suit). Since premises No. 37, Colutolla Street, was comprised in Item 5 of Lot A of Schedule 2, the title deeds according to the Commissioner's report ought to be in the possession of Satyendra Lal Dutt Messrs. Mukherjee and Biswas asked S.K. Guha to send these title deeds against the 'accountable receipt' of Messrs. Mukherjee and Biswas. As there was no reply sent by S.K. Guha to this letter on December 23, 1960, Messrs. Mukherjee and Biswas sent a reminder. On December, 27, 1960 S.K. Guha wrote to Messrs. Mukherjee and Biswas to say that no original documents of title came into the Defendant's possession. Guha further stated that the parties to the partition had none of those documents, a fact which was affirmed by an affidavit in the partition proceedings. In this connection Guha asked Messrs. Mukherjee and Biswas to refer to Mr. T.K. Ghose, Engineer, who had been appointed Commissioner of Partition in the partition suit No. 1086 of 1942. S.K. Guha called upon the Plaintiff's Solicitors to send to him the requisitions on title for answer. Incidentally, he regretted the delay in his reply. On December 28, 1960, Messrs. Mukherjee and Biswas referred S.K. Guha to certain provisions in the Commissioner's report a certified copy of which they said had been procured by them in the mean time. Verbatim copy of an extract of the Commissioner's report was set out in the letter. The relevant portion reads as follows: