NAZIBAR RAHMAN MOLLA Vs. DILIP KUMAR ROY

JUDGEMENT

(1.) THIS is an appeal against the decree passed in a suit for specific performance of contract for sale of some immovable property. The suit was decreed by the trial court and the defendants have preferred the present appeal.

(2.) THE plaintiffs' case, in short, is that on May 23, 1958, the defendants entered into an agreement in writing with the plaintiffs for sale of the said property measuring 49 decimals of land at the rate of Rs. 631/- per cottah. On the date the agreement was executed the defendants received Rs. 2001/- as earnest money. The defendants were to make out a good and marketable title and obtain necessary Income -tax clearance Certificate and execute the deed of Conveyance. It was alleged in the plaint that as the names of some other persons were found in the record of rights along with the defendants the plaintiffs' Attorney asked the defendants to get the names of those persons expunged from the record of rights. It was alleged that the defendants informed the plaintiffs Attorney on 25th january, 1961, that a suit had been filed for the said purpose and the suit was pending. The plaintiffs further alleged that in spite of several reminders the defendants failed or neglected to produce the necessary documents for satisfying the plaintiffs' solicitor about a good and marketable title of the defendants in respect of the said land and that the defendants failed to take any steps in that behalf and failed to execute the conveyance. On these allegations the plaintiffs claimed a decree for specific performance of contract for sale of the land in suit, alternatively, for a decree for refund of rs. 2,001/- with interest, and also far certain other relief.

(3.) THE suit was contested by both the defendants who filed a joint written statement contending, inter alia that in spite of clear title of the defendants the plaintiffs failed and neglected to complete the transaction. The defendants denied that the plaintiffs were ready and willing to perform their part of the contract, and as such the defendants claimed that no decree for specific performance should be granted in favour of the plaintiff. It was alleged that the suit was barred by limitation and also by the principles of waiver, estoppels and acquiescence. The defendants further alleged that they were anxious to sell the said land after payment of arrears of Income tax and Estate Duty but the plaintiffs sat over the matter for more than 5 years before they instituted the present suit, and the defendants have been seriously prejudiced thereby as they had to pay a large number of interest on the Income-tax and Estate Duty dues.