NABINCHANDRA SAHA PARAMANICK Vs. KRISHNA BARANA DASI

JUDGEMENT

(1.) This suit was originally decreed by me ex parte on the defendants failing to appear when the case was called on. Subsequently the defendants proved facts that led me to suppose that I might have been misled by evidence which showed that one of the defendants was in the High Court at the time I heard the suit, and was intentionally absenting himself from my Court; and I re-instated the case accordingly.

(2.) The plaint in the case, as far as it is material, is as follows. On the 15th December 1908, the defendants contracted to sell and the plaintiff to buy a half share in land in Calcutta, at the rate of Rs. 650 a cottah which came to Rs. 18,581-2-4 and the plaintiff paid Rs. 501 as earnest money: the sale to be completed within a month. On the 26th January 1909, the defendants informed the plaintiff that they could not fulfil their contract as they had previously sold the share in question to one Gokul Chand Bural, but the plaintiff refused to accept this excuse. On the 5th April, the defendants informed the plaintiff that they could not perform their contract because they had mortgaged the half share along with other property, and the mortgagees refused to release it. This excuse also the plaintiff refused to accept. Gokul next brought a suit against the present defendants and the plaintiff in which he sought to have a decree for specific performance against the defendants and to have them and the plaintiff restrained from completing the contract already mentioned. This suit was abandoned, and on the 18th September the plaintiff called on the defendants to complete their contract, but this the defendants refused to do.

(3.) Meanwhile, on the 28th April, the Local Government published a declaration under the Land Acquisition Act announcing their intention of acquiring the premises in question for a public purpose. This they eventually did paying for them a sum of Rs. 28,394-5-5 being at the rate of Rs. 850 a cottah. The plaintiff now sues for Rs. 10,014-3-1, the difference between the sum he contracted to pay beyond the Rs. 501, and the sum which was paid to the defendants by the Local Government in respect of the half share, which he alleges is the damage he has sustained by the breach of his contract by the defendants.