AIR CONSTRUCTIONS AND CONSULTANTS Vs. BRAJADHARI LALL

JUDGEMENT

(1.) This appeal is directed against the judgment dated 31st July, 1992 passed in Title Suits No. 29 & 30 of 1991 passed by the learned Assistant District Judge, Sealdah (South 24-Parganas) whereby the Suits filed by the Appellant-Plaintiff were dismissed on contest. The brief facts leading to the filing of the Appeal are that the Plaintiff-Appellant on 26th December, 1986 entered into two registered Agreements for sale with two sets of defendants in respect of Southern and Northern portions of premises No. 72, Tiljala Road, Calcutta for a consideration sum of Rs. 8,77,000/- and Rs. 6,30,000/- out of which Rs. 87,000/- and Rs. 63,000/- were paid to the defendants towards the earnest money. The defendants in both the suits got their respective shares in the suit property by virtue of a Decree in a Partition Suit being T.S No. 87/63 in the Court of Sub-Judge at Bhagalpur, Bihar. It was agreed upon between the parties that the transactions will be completed within 9 months from the date of the execution of the agreements or within the said extended period as may be mutually agreed upon between the parties. The defendants undertook to get their names mutated in respect of the suit property with C.M.C. before completion of transaction and the plaintiff would be at liberty to deal with the tenant (Proforma defendants) within the suit property at its own cost with prior consent of the defendants. The defendants were to obtain Income Tax Clearance Certificate and Urban Land Ceiling Clearance with necessary assistance of the plaintiff. It was also agreed upon that on payment of the balance of the consideration money the defendants shall execute the Deed of Conveyance.

(2.) Further case of the plaintiff is that the proforma defendant filed two suits before the High Court in the year 1987 against the parties of these suits against the aforesaid purported agreement in which this Court had passed an order over the execution of any conveyance in favour of the plaintiff. Those suits were ultimately withdrawn by the proforma defendant on 6th March, 1991.On 11th March, 1991 the plaintiff came to know through one Arnak Dugar, an Estate Broker that the defendants were negotiating through him for sale of the suit property to a third party at a lucrative price. The Plaintiff was always ready and willing to discharge the obligations under the Agreements and repeatedly requested the defts to perform their obligations which they did not ultimately comply. The plaintiff is entitled to the claim of specific performance of the said agreements or the claim of damages of Rupees seven crores in case the specific performance is not allowed.

(3.) The defendants in both the suits contested by filing written statements challenging their maintainability denying all the material averments made in the plaint and contending intra alia that the defendants were always ready to discharge their duties and obligations for fulfilling the agreement and that the mutation was not at all a factor against the purchase of the property and that Arundharee Lall had no authority to give approval in, the draft deed on behalf of all the defendants, that the affidavit sworn by Arnak Dugar is a procured one, that the defdts had already entered into an agreement on 8th March, 1991 for the sale of the suit property, that none of the defendants had any discussion with any person Arnak Dugar by name, that the defdts. duly terminated the said agreement by the letters dated 29th January, 1991 and 6th February, 1991 as the plaintiffs were never willing to perform any terms of agreement at any point of time at all.