Samaresh Banerjea, J. - (1.) The present appeal, preferred by the defendant arises out of the judgment and decree dated 10th May, 1995 passed by learned Assistant District Judge, Tamluk in suit No. 14 of 1993 where by if suit was decreed for specific performance of contract.
(2.) The plaintiff filed the suit inter alia, on the pleading that the defendant No. 1 who is the absolute owner of the suit property and is in session thereof being need of money declared to transfer the land through of father, the defendant No. 2 in the month of July, 1990 and the plaintiff aft coming to know of such declaration expressed his desire to purchase these property and accordingly the defendant No. 2, the father of the defendant It 1, executed an agreement on 20th July, 1990 in favour of the plaintiff where it was stated inter alia, that the defendant No. 1 would transfer the land favour of the plaintiff on a total consideration of Rs. 1,69,750/- and the defendant No. 2 accepted the sum of Rs. 35,000/- for and on behalf of the defendant No. 1 as advance and issued a receipt. The defendant No. 2 being member of the joint family of the defendant No. 1 accepted the agreed amount of Rs. 55,000/- for and on behalf of the defendant No. 1 and promised tog a sale deed duly executed and registered by the defendant No. 1 at there of the plaintiff by 30th September, on payment of balance amount of consideration money of Rs. 1,34,750/-.
(3.) It was pleaded pursuant to the aforesaid agreement the defends No. 2 received an advance of Rs. 35,000./- as part of consideration mom promising to sell the land and acknowledged the agreement by granting receipt ; although in terms of the agreement the plaintiff offered within the agreed time the balance of consideration money, on various pleas the Kobala was not executed.;