KAMAL KRISHNA KUNDU CHOWDHURY Vs. CHATTOORBHUJ DASSA

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contract for sale of a garden called the " Kundu" garden at Howrah. An agreement was entered into on the 10 June, 1919, between the plaintiff (the vendee) now represented by the Official Assignee, and the defendant and the terms of the contract are embodied in the receipt executed by the defendant (the vendor) which runs thus: Received from Babu Chaturbhuj Dosa the sum of Rs. 2,001 (rupees two thousand and one) only as earnest-money and in part payment of purchase-money in respect of my 22 bighas of land including land covered by water more or less at Salkea on Grand Trunk Road known as " Kundu Bagan " which I have agreed to sell and he has agreed to purchase free from all incumbrances but subject to approval of title by his solicitors Messrs. Khaitan & Co. at the rate of Rs. 150 (one hundred and fifty) per cottah. I have agreed that all necessary parties will join in the conveyance and that the sale will be completed within one month from the date of delivery of title deeds. Time being the essence of the contract.

(2.) The title deeds were sent to the purchaser's solicitor s, on the 12 June, 1919. Messrs. Chatterjee & Co., were the vendor's solicitors and Messrs Khaitan & Co. were the solicitors of the vendee and for shortness sake we shall in our judgment refer to them as Chatterjees and Khaitans. There was some correspondence between the solicitors of the parties about the Surveyor who has to measure the land-Ultimately, it was agreed that there should be two Surveyors one Mr. C. K. Sarkar, for the vendor and Mr. Johnstone, for the purchaser, and that they would measure the land on the 5 July, 1919. On that day some measurement was made which, however, was not completed because there was jungle on the land. It is said on behalf of the vendors that there were merely shrubs on the land. Whether they were shrubs or jungle the measurement was not completed on that day, because the land was not cleared of them. The Khaitans, on the 9 July, 1919, wrote to the Chatterjees that the shrubs should be cleared, and on the 11 July, they again enquired whether the jungle had been cleared or not. The Chatterjees replied that the jungle bad been cleared by the vendor on "last Sunday," that is, the 6 July. The evidence upon the question whether the further measurement was to be taken up within two or three days from the 5 July, or was to be made after the purchaser's Solicitor's received intimation of the jungle having been cleared is conflicting. There is the evidence of Mr. Johnstone's man, Pramatha Nath Mukerjee, who was examined on behalf of the plaintiff, and evidence of Mooktaram Ghose, an assistant of the defendants surveyor, Mr. Sirkar, on the point. This much is clear from the evidence that the Survey could not be completed on the 5 July, and having regard to the fact that in the account-books of the defendant (the vendor), the expenses for clearing the jungle are entered on dates between the 6 July, 1919, and that Rs. 38-10-0 was paid to 103 labourers at the rate of 6 annas per day for each, as appears from Exh. D (the account-books of the defendant) the defendant's story that the jungle had been cleared on the 6 July, cannot be accepted. On the 12 July, the Chatterjees wrote to the Khaitans that their client had arranged with the Surveyor, Mr. Sirkar, to resume the Survey on Monday (the 14 July). Nothing appears to have been done on the 14 July, and on that day the Chatterjees wrote to the Khaitans that the time limited by the agreement had expired on Saturday the 12th; that the defendant was prepared, as a matter of grace, to allow the plaintiff to complete the measurement by "today," and that as the plaintiff had not availed himself of the period of grace, the defendant would stand upon his legal right to terminate the contract and asked for return of the title-deeds. The Khaitans evidently ignored the above letter and on the 17 July, sent "requisition on title." On the 23rd July, Khaitans wrote to Chatterjees that his client "has always been and still ready to complete the purchase." On the same day the Chatterjees asked Khaitans for return of documents without further delay, and the latter inquired whether they were required for drawing the conveyance.

(3.) It appears that on the 23 July, Khaitans received a letter from their Surveyor Mr. Johnstone, that the area of the land was 23 bighas 3 cottas 30 square feet and on 25 July, wrote to Chatterjees that the area was 33 bighas 3 cottas 30 square feet and enquired whether their Surveyor agreed with the area. This (33 bighas) was evidently a slip. On the 26 July, Khaitans sent a draft conveyance for approval of Chatterjees subject to our requisitions." On the 29 July, 1919, the Chatterjees wrote to the Khaitans that the vendor would be prepared to accept the area given by the purchaser's Surveyor, viz., 33 bighas 3 cottas 30 square feet and to do all other things necessary for the completion of the transaction provided the purchase was completed within a fortnight of the approval of the draft conveyance, time being of the essence of the contract. This was stated to be "without prejudice." On the next day, that is, on the 30 July, the Khaitans wrote to the Chatterjees as follows:-"We accept your client's offer of completing the purchase within a fortnight after the approval of the draft conveyance. The area given by our Surveyor is 23 bighas 3 cottas 30 square feet" to which the Chatterjees replied as follows:-"Our letter of yesterday was written on the basis of the measurement given, in your letter of the 25 instant, viz., 33 bighas 3 cottas and 30 square feet we are surprised to find that you say in your present letter that the area is 23 bighas 3 cottas 30 square feet" and that, in the circumstances, they would forward a copy of the letter to their clients and that unless confirmed by their clients "our letter of yesterday, as is obvious, will be inoperative." Some further correspondence followed, and on the 9 October, 1919, the Khaitans wrote to the Chatterjees regretting unnecessary delay and intimating that if the latter did not complete the sale within a week, the plaintiff would institute a suit for specific performance. The correspondence ended on the 21 October, 1919, on which day the Chatterjees wrote to the Khaitans that there was no subsisting contract between the purchaser and their clients and that further correspondence would be wholly useless.