JADU NATH GUPTA Vs. CHANDRA BHUSAN SUR

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance the question involved being whether the plaintiff, now appellant, was entitled to the relief which he claimed.

(2.) The facts which led to the institution of the suit, may be briefly referred to, Some of those are common ground, while as to others there is divergence in the versions put forward on behalf of. the respective parties. It appears that the plaintiff appellant, who is a Kabiraj practising in Calcutta, belongs to the Noakhali District where defendant 1, Rai Raj Kumar Datta Bahadur (hereafter referred to as the Rai Bahadur) also resides. In May 1924 the Rai Bahadur went to Calcutta, and it is the case of both parties that while he was there a contract was entered into between him and the plaintiff whereby in consideration of a salami of Rs. 400 he was to give to the plaintiff lakheraj right in a tank or dighi, which the plaintiff had been holding under him at an annual jama of Rs. 52. According to the Rai Bahadur the whole of Rs. 400 was to be paid on the next day while according to the plaintiff Rs. 200 was paid on 3rd May and the balance of Rs. 200 was to be paid at a later date after the Rai Bahadur had returned to Noakhali. This latter sum, or to be precise Rs. 170 was, it is not disputed, subsequently tendered by the plaintiff's brother Dwarika Nath Gupta not however within the time stipulated but towards the end of May. The Rai Bahadur had however already treated the contract as broken in consequence of the previous default, and had settled the tank with defendant 2 on receiving a salami of Rs. 800.

(3.) The plaintiff's case was that he had always been and still was ready to pay the balance of Rs. 200, and that he had repeatedly pressed the Rai Bahadur to execute the promised conveyance but with out success. He accordingly sued for specific performance of the contract, and in the alternative for recovery of Rs. 200 plus Rs. 500 as compensation from the Rai Bahadur.