J C GALSTAUN Vs. SAHEBZADI MAMOODI BEGUM

JUDGEMENT

(1.) This is a reference from the Small Cause Court. The question arises upon a contract for the sale of a certain house in Chowringhee No. 34 Chowringhee Road, which was entered into between Saheb Zadi Mamoodi Begam as vendor on the one part and John Caropiat Galstaun as purchaser on the other part on 9 September 1919. It appears that the premises in question were subject to a certain wakf and they were also subject to a renewal clause in a certain indenture of lease. No period for completion was fixed by the contract and it was a term of the contract that the vendor should use due diligence to apply to the proper Court in the matter of the waif for an order for sale thereof and that she should take advice of counsel with a view to nullify, if possible, the clause in the lease to which I have referred. The contract provided that within one week from the date on which the purchaser should be satisfied in respect of the above two clauses being fully complied with by the vendor, the vendor would send all the title deeds. There were further provisions as regards what would happen thereafter in the matter of the completion of the contract. It appears that, in 1921, the vendor mortgaged this property to another and, in 1927, the property was sold in satisfaction of that mortgage.

(2.) The present suit was brought for the return of the deposit money, namely, Rs. 501 with reference to which there was a clause in the contract that, if for any laches of the vendor or failure on the part of the vendor to comply with the conditions of these presents and on her part to be observed and performed the said purchase cannot be completed, then and in such event the vendor should forthwith return on demand to the purchaser the said sum of Rs. 501.

(3.) Now, the question which arose and upon which the two Judges of the Small Cause Court composing the Full Bench disagreed has been stated as follows: (1) Whether Art. 60 or Art. 115 applies to the claim in suit ? (2) Whether the claim is barred ?