KRISHNAJI GOPINATH RELE Vs. RAMCHANDRA KASHINATH MASTAKAR

JUDGEMENT

(1.) This is an originating summons taken out by the plaintiff for determination of certain questions arising under a contract for sale dated January 25, 1930, under which he agreed to sell his property situate at Falkland Road, Bombay, to the defendant for the sum of Rs. 37,5C0. There are three questions on the originating summons, the principal one being whether the plaintiff as vendor has made out a marketable title to the property. The summons came on for hearing before me in Chambers on July 7, 1930, when the defendant contended that the questions could not be decided on the summons, but should be raised in a regular suit. The summons was, however, adjourned into Court for hearing and final disposal. The property contains by admeasurement-1555 square yards together with the building standing thereon. Under Clause 5 of the agreement the vendor agreed to make out a marketable title to the property " to the satisfaction of the purchaser's attorneys", and to clear all defects in the title. Under Clause 5 (a) the vendor declared that the tenure of 1260 square yards of the land was Government leasehold tenure in perpetuity renewable at the expiration of every fifty years, and the remaining portion of the land admeasuring about 295 square yards was of freehold tenure. Under Clause 6 the purchaser had the option to rescind the agreement if inter alia the title was not marketable or if the tenure of the land agreed to be sold was not the tenure described in Clause 5 (a). The sale was to be completed within three months from the date of the agreement.

(2.) On January 28, 1930, the plaintiff sent the title-deeds to the defendant's attorneys, and correspondence ensued almost forthwith regarding various points in the title between the respective attorneys of the parties. The defendant's attorneys sent the first set of requisitions on title on February 15,1930, and a second set on March 6, 1930. In the correspondence and on the answers to the requisitions the plaintiff contended that he had made out a marketable title to the property, whilst the defendant contended that he had not. On April 25, 1930, which was the last day for the completion of sale, the defendant wrote through his attorneys to the plaintiff treating the sale as having fallen through, and the plaintiff took out this originating summons on April 30,1930, for the determination of the questions mentioned therein. Counsel for the defendant applied to the Court to have another question added to the originating summons relating to the return of the earnest money. The application was made at the commencement, and no objection was raised at that time. The question itself was, however, formulated just when the defendant's counsel began his closing address, as follows : Whether the plaintiff is bound to return to the defendant the sum of Rs. 3,000 paid as earnest and in parb payment of the purchase price with interest thereon.

(3.) Objection was then raised on the ground that the evidence was closed, but as the application had been made at the commencement, and the determination of the question had nothing to do with the evidence led by either party, I allowed the question to be added to the summons.