SREE LAL CHAMARIA Vs. SIR HARIRAM GOENKA

JUDGEMENT

(1.) plaintiff appeals against a decree of the Subordinate Judge of Howrah dated the 29 June 1923 dismissing his suit for specific performance a contract for sale of lands and in the alternative for damages, which was ultimately, in the circumstances which had happened, limited to a suit for damages only for breach of contract. The facts are these: The defendant by a contract dated the 27 March 1920 agreed to sell to the plaintiff 74 and odd cottas of lands in Howrah at the rate of Rs. 9,001 per cotta. It is admitted that, there was a supplementary verbal contract when it was found that the mortgaged properties together with other properties had been advertised for sale in execution of a mortgage-decree dated November 13, 1917 obtained by the Maharajah of Darbbanga in the Original Side of this Court. By this latter contract the plaintiff undertook, to pay off the, entire mortgage-decree. This verbal contract was admitted by the plaintiff as will appear from what follows later on. The plaintiff brought this suit oh the 8 May 1920. The properties were sold on July 14, 1920 and then the claim was limited to a prayer for damages only. The defence was a prolix one. It denies the validity of the contract, although its execution was admitted. The Issues Nos. 3 4 and 5 embody the main points of controversy between the parties.

(2.) The learned Subordinate Judge found that the contract was vitiated by undue influence, and that the plaintiff failed to perform his part of the contract and that the plaintiff was not in a position to raise sufficient money to carry out the term of the contract. He also found that the suit filed on the 8 May was premature. In the result the suit was dismissed with costs. Against this decree the present appeal has been filed.

(3.) Before I deal with the points which arise in this appeal I shall very briefly state the facts and circumstances which are admitted to have transpired between the date of the agreement, i.e., 27 March 1920 and the date of the institution of this suit, i.e., the 8 of May of the same year.