A.Kabir, J. - (1.) This appeal is directed against the judgment and decree dated 12th September, 1990, passed by the learned Assistant District Judge, 3rd Court, Alipore, 24 Parganas, dismissing the plaintiff's suit for specific performance of contract and permanent injunction, being Title suit No. 8 of 1986, with a direction upon the defendant/respondent to refund to the plaintiff a sum of Rs. 46001/- along with statutory interest at the rate of 8% per annum, to be calculated from the date of acceptance of the amount till the date of payment by the defendant, within 60 days from the date of the judgment.
(2.) The case as made out in the plaint is that the defendant as the owner of the suit premises entered into an agreement with the plaintiff on 17th November, 1983, for sale of the suit property for a consideration of Rs. 1,01,000/-. The defendant received a sum of Rs. 5,001/- by way of earnest money on the same day and handed over the original Title Deed of the suit premises to the plaintiff and also delivered Khas possession of one room therein to the plaintiff who is still in possession of the same and is using the same for his own use and occupation. According to the plaintiff, the defendant received further payment of Rs. 22,000/- from the plaintiff on the very next day (18.11.83) for payment of arrear municipal rates and taxes and for obtaining Income Tax Clearance Certificate.
(3.) The plaintiff, thereafter, investigated the dafendant's title to the suit property and also caused newspaper publication regarding sale of the property. In September, 1984, the plaintiff requested the defendant to complete the sale transaction after receiving the balance consideration amount, but the defendant declined to do so on the ground that he had not been able to procure the clearance certificate from the Income Tax authorities and the municipal dues were yet to be paid.;