RAM CHANDRA DAS Vs. MD. KHALILUR RAH­MAN

JUDGEMENT

(1.) This appeal arises from First Appeal No. 55 of 1978 passed by the High Court Division on 25 March 1982.

(2.) Plaintiff who is the respondent instituted Title Suit No.3 of 1976 in the 5th court of Subordinate Judge, Dhaka for specific performance of contract to sell the suit lands. Plaintiff's case was that the defendants entered into an agreement with him on November 2, 1970 to sell the suit land being a tank with banks and adjoining agricultural lands at a consideration of Tk. 28,500/-. Defendants accepted Tk. 6,000/- as earnest money. Stipulations between them were that the plaintiff would offer the balance of the consideration money to the defendants within one month upon which they would execute and register .the sale deed. It was further agreed that if the plaintiff failed to do so-the earnest money would be forfeited but if the defendants refused to accept the balance amount and failed to execute and register the sale deed within the aforesaid period the plaintiff should be entitled to specific performance of the contract through Court. On November 25, 1970 the plaintiff offered the balance consideration money but the defendants refused to accept it on the plea of their failure to procure Income tax and gain tax clearance certificates and Nationality certificate but assured the plaintiff that they would complete the transaction after obtaining these certificates. Plaintiff made several offers since then but the defendants deferred the matter. Ultimately defendants refused to sell the land on October 7, 1973 unless the plaintiff agreed to pay 15,000/- in additions to the balance consideration money.

(3.) Defendant Nos.1-3 contested the suit by filing a joint written statement wherein it was contended that the suit was barred by limitation, that the time was the essence of the contract, that defendants agreed to sell the suit land situated at a distant village from the residence to raise money to purchase agricultural lands and also to invest capital in fish business, that they entered into an agreement with one Pagali Mondal for purchasing 2.94 acres of agricultural land, that as the plaintiff failed to pay the balance consideration the defendants could not purchase the said land and earnest money paid by them was forfeited, that defendants had no obligation to' obtain income tax clearance certificates etc. which was the responsibility of the plaintiff and that the price of land in the locality had increased in the mean time.