CHANDRABALI SHAH Vs. PRITAM SINGH

JUDGEMENT

(1.) This appeal is by the defendant. It arises out of a suit for specific performance of contract for sale in respect of 15 kathas of land out of municipal survey plot No. 2057/C bearing new municipal holding No. 1459 in the Municipality of Ranchi. The total area of this survey plot No. 2057/C is .82 acre. It appears that this plot was originally a ditch but recently it has now been all got filled up by the defendant who is its admitted owner. The defendant is at present a partner of Dhiman and Company along with one N. R. Dhiman. The case of the plaintiff is that there was a contract for sale made between the parties with respect to the aforesaid 15 kathas of land in two parts. The first part of the contract, according to the plaintiff was in respect of 10 kathas of the land, 5 kathas constituting the front portion and the other 5 kathas the back portion of the aforesaid plot. This part of the contract is said to have been completed in December 1958. Therein the price of 5 kathas of the front portion is said to have been settled for Rs. 3250/- that is at the rate of Rs. 650/- per katha and that of the back portion of 5 kathas at Rs. 2,250/-, that is to say, at the rate of Rs. 450/- per katha. According to the plaintiff, this part of the contract was negotiated on behalf of the defendant by N. R. Dhiman who is said to have on its conclusion received a sum of Rs. 500/-as earnest money for the same and thereafter to have sent to the plaintiff a telegram and a letter both dated 17th December, 1958, on behalf of the defendant in confirmation of it and further demanding therein the balance of Rs. 5000/- along with the necessary registration cost for its final completion. At this the plaintiff is said to have gone to Ranchi ready for the completion of the sale deed but on arrival there he found that the ditch was not yet filled up as was undertaken by the defendant at the time of the contract. Therefore, the finalisation of the sale deed was for the time being postponed till the ditch was got completely filled up.

(2.) Thereafter, it is said the second part of the contract was concluded on the 3rd January, 1959, but this was done directly between the parties. Thereunder not only the first part of the contract was affirmed but also the rest of the 5 katha land in suit was agreed to be sold by the defendant to the plaintiff at the rate of Rs. 450/- per katha. A further sum of Rs. 500/- is also claimed to have been then paid by way of advance towards the total price of all these lands and in proof thereof there was a separate receipt as well granted on that very date. It is, however, said that as the work over the ditch was not progressing satisfactorily, there was a further sum of Rs. 2,000/- paid by the plaintiff to the defendant sometime in February 1959 by way of advance towards the total consideration of the entire contract and this time it was clearly understood between the parties that the work over the ditch would be definitely completed by March and the contract thereafter finalised in April, 1960. Accordingly on 15-4-1960 the plaintiff is said to have gone to the defendant for the final execution of the sale deed. But now the defendant is said to have totally refused to do it unless the plaintiff was willing to increase the price of land to Rs. 1000/-per katha. This the plaintiff did not accept and thereafter on service of notice both on the defendant and N. R. Dhiman for the performance of their part of the contract, he instituted the present suit for the specific performance of the entire contract.

(3.) In answer to the suit, there were a number of picas raised by the defendant. In substance, the defence taken was that there was never any contract concluded between the parties for the sale of the lands in suit, and the talk that was there was still in a stage of negotiation. And even if there was any that was not enforceable in law inasmuch as the first part of the contract was entered into on behalf of the defendant by N. R. Dhiman who had no authority to bind him to its terms; and the second part of the contract suffered from the flaw that there was no term fixed at that time for the price and it was taken for granted that the sale if and when effected would be made at the rate then prevailing in the market. Further, it was also pleaded that barring the sum of Rs. 500/-, which was claimed to have been received by N. R. Dhiman, there was no oilier item of payment made by the plaintiff and as for Rs. 500/- paid to N. R. Dhiman, there was a long explanation given in the written statement.