BYOMKESH BANERJEE Vs. NANI GOPAL BANIK

JUDGEMENT

(1.) In this appeal against a decree for specific performance of a contract to sell land, Mr. Ali, the learned Advocate appearing for the appellant, has urged that, firstly, there was no offer from and on behalf of the defendant-appellant to sell land to the plaintiff respondent, and that, secondly, even if there was any such offer, there was in law no acceptance thereof by and on behalf of the plaintiff-respondent and Mr. Ali has accordingly urged that the learned Judge was wrong in decreeing the suit.

(2.) It appears from the evidence on record that the plaintiff-respondent by his letter, Ext. 1, to the defendant-appellant offered to purchase the disputed land at Rs. 3000/- per Katha. This offer does not appear to have been accepted by the defendant who by his reply, Ext. 8, stated that he had already received higher offers at the rate of Rs. 3,250/- per Katha and the plaintiff was therefore required to inform him if he was agreeable to purchase the land at the rate of Rs. 3,300/- per katha and, if so agreeable, to send Rs. 3000/- towards advance. The plaintiff replied by Ext. 2 enclosing therewith a bank draft for Rs. 3000/- and stating therein that he would pay the balance amount before or on the execution of the Sale Deed in his favour. Ext. 2 was dated 13-5-74 and was sent by registered post on the same date under postal receipt Ext. 5(a), but it came back with the postal endorsement "unclaimed" and "absent". Thereafter the said bank draft was again sent to the defendant by registered post on 29-6-74 along with a letter of that date, Ext. 10, written by the plaintiff's lawyer wherein it was reiterated that the said amount was being sent "as advance" as demanded by the defendant against his offer of sale of land and this letter also came back with postal endorsement "refused", vide Ext. 4(a). The plaintiff thereafter received a letter from the defendant dated 29-6-74, being Ext. 2(a), wherein it was stated that the proposal made by the defendant to the plaintiff stood cancelled and the defendant would no longer sell the land. The plaintiff thereafter served a notice through his lawyer dated 30-7-1974 and ultimately filed the suit for specific performance. The trial Court has decreed the suit and hence this appeal by the defendant.

(3.) Appearing for the defendant-appellant, Mr. Ali has very strongly urged that the defendant having made no offer to sell his land at any point of time, there was nothing for the plaintiff to accept which could give rise to any concluded contract to sustain the suit and warrant a decree for specific performance. Mr. Ali has contended that the letter Ext.8 written by the defendant to the plaintiff contained no offer but was a mere invitation to make offer and that, in pursuance thereto, the plaintiff made his offer to purchase the land by his letter Ext.2; but this offer of the plaintiff in Ext.2 not having been accepted by the defendant at any stage, no contract ever came into existence. Mr. Ali has referred to the decision of the Supreme Court in Macpherson v. Appanna, AIR 1951 SC 184 to fortify his contention that Ext.8 could not and did not contain any offer, but was only an invitation to the plaintiff to make his offer.