NURSING DASS KOTHARI Vs. CHUTTOOLALL MISSER

JUDGEMENT

(1.) This is on appeal from the judgment ?f my learned brother Mr. Justice Buckland, who dismissed the suit of the plaintiff with cost.

(2.) The suit was brought for the purpose of obtaining a declaration that a certain agreement for the purchase of the land and premises No. 43, Burtolla Street Calcutta, is void and inoperative and to recover a sum of Rs. 36,000 with interest which the plaintiff had deposited as part payment of the purchase price.

(3.) The date of the agreement in question was the 29 of November 1919. The defendant was a Receiver appointed in a certain suit by this Court, and he sold by auction the property in pursuance of an order of the Court. The plaintiff was the highest bidder, and purchased the property for Rs. 1,41,000 and made a deposit, as I have already said, of Rs. 36,000, Subsequently, the plaintiff discovered that a notice had been published tinder Section 63, Sub- section (2), of the Calcutta Improvement Act which affected these premises. That notice had been published on the 18 of December 1918, and objections to matters contained in the notice had to be put in by the 31 of March 1919, so that, if it is material for the consideration of this case, it is to be noted, that the time for making objections had expired before the date of the sale to the plaintiff. So mention of this notice was made in the sale notification. The facts relating to this matter are to be deduced from the memorandum which was agreed to by the parties in the Trial Court. It is as follows: With reference to the question of knowledge it is stated by Mr. Mitter on behalf of the plaintiff that he does not impute personal knowledge to the defendant and accepts the defendant's denial in regard thereto until after the contract was entered into. He, however, imputes to him prior constructive notice of the intended acquisition by reason of the public notification and by reason of-the fact that particular notice had been, served on the Official Receiver who preceded him as a Receiver. Mr. Das on behalf of the defendant similarly says that he does not impute personal knowledge to the plaintiff and accepts the actual with regard thereto, but he relies upon the constructive notice of the intended acquisition afforded by the public notification. Mr. Das also admits that the property, which formed: the subject matter of the notice, was about 1 half the property in suit and was not an insignificant amount.