A.N.Ray, J. - (1.) The plaintiff Anandilal Poddar instituted this suit on May 24; 1958 against Rai Bahadur Gunendra Krishna Roy and United Bank of India Ltd., for specific performance of the contract dated August 25, 1956 as modified on September 16, 1957 and for other reliefs. The contract dated August 25, 1956 was entered into between Anandilal Poddar and Rai Bahadur Gunendra Krishna Roy hereinafter referred to for the sake of brevity as Roy defendant for purchase of premises No. 57, Jatindra Mohan Avenue, Calcutta for the consideration of Rupees 6,01,000 on, inter alia, the following terms and conditions: (a) The said premises should be sold to the plaintiff free from encumbrances. (b) The sale should be completed by December 15, 1956 and in this respect time should be deemed as essence of the contract unless by mutual agreement between the plaintiff and Roy defendant such time was extended. (c) Roy defendant should give vacant possession of the said premises to the plaintiff within a time to be settled later. On August 25, 1956 the plaintiff paid Roy defendant a sum of Rs. 25,000 as earnest and in part payment of the said consideration. In 1950 the defendant United Bank of India Ltd. hereinafter referred to for the sake of brevity as the defendant bank instituted a suit being suit No. 3859 of 1950 in this court in respect of the mortgage created on the said premises No. 57, Jatindra Mohan Avenue, Calcutta by Roy defendant and on March 14, 1955 the defendant bank obtained a mortgage decree against Roy defendant for Rupees 3,32,143-4-0 and costs payable by certain instalments, and for sale of premises in default of payment. It is alleged in the plaint that no payment had been made by Roy defendant to the defendant bank under the said mortgage decree. At the request of Roy defendant on September 16, 1957 in consideration of the plaintiff paying Roy defendant a further sum or Rs. 10,000 as earnest and in part payment of the said consideration it was agreed by and between them with the consent of the defendant bank, inter alia, as follows: (a) The plaintiff would take over upon himself the liability of Roy defendant to the defendant bank to the extent of Rupees 3,00,000. (b) The aforesaid consideration for the sale of the said premises would be reduced by the said amount of Rs. 3,00,000. (c) Roy defendant would discharge his remaining liability to the defendant bank in respect of the said mortgage for further completion of sale. (d) The sale of the said premises by Roy defendant to the plaintiff should save as to the said sum of Rs. 3,00,000. (e) The sale should be completed by November 30, 1957. (f) The possession of the premises should be given by Roy defendant to the plaintiff by November 30, 1957.
(2.) In paragraph 5 of the plaint it is alleged that the time to complete purchase and possession was by mutual agreement extended up to 15th April, 1958. In paragraph 6 of the plaint it is alleged that (sic) defendant refused to complete the sale. In paragraph 7 of the plaint it is alleged that the plaintiff is entitled to specific performance and to pay to the defendant bank out of the consideration amount all its dues under the mortgage decree. In the plaint the plaintiff further claimed damages against Roy defendant by reason of the refusal or the latter to complete the sale. The particulars of damages were Rs. 6,800 being the letting or occupation value of Rs. 200 per day from April 16, 1958 when the sale should have been completed and possession given and further damages at the same rate until possession was delivered together with interest thereon at 9 per cent per annum until payment. The alternative claim in the plaint was that if the court were pleased not to direct specific performance of the said contract the plaintiff would claim refund of Rs. 25,001 and Rs. 10,000 aggregating Rs. 35,001 with interest thereon at the rate of 9 per cent per annum and a sum of Rs. 1,00,000 being the difference between the contract price and the market price.
(3.) Roy defendant did not contest the suit. The defendant bank appeared at the trial. The suit came up before me and a decree was passed on March 11, 1960. The suit against the bank was dismissed with costs. The decree contains inter alia the following clauses: (a) It is ordered and decreed that the defendant United Bank of India Ltd. shall not proceed with the sale of premises No. 57, Jatindra Mohan Avenue for 3 months from the date hereof and if within three months the plaintiff pays the dues to the defendant bank the said defendant United Bank of India Ltd., shall not proceed with the sale of the said premises at (b) It is further ordered and decreed that in the event of the plaintiff not paying dues of the defendant United Bank of India Ltd. by the 11th day of June, 1960 the defendant United Bank of India Ltd. shall be at liberty to proceed with the sale reference of the said premises from the 13th day of Tune, 1960. (c) It is further ordered and decreed that this suit as against the defendant United Bank of India Ltd. be and the same is hereby dismissed. (It should be stated here that the decree as originally drawn up stated that the suit stood dismissed against Rai Bahadur Gunendra Krishna Roy. This portion was corrected by an order made by me on June 20, 1960). (d) It is declared that the contract dated the 25th day of August, 1956 as modified on the 16th day of September, 1957 mentioned in the plaint in this suit ought to be specifically performed and carried into execution and the same is ordered and decreed accordingly. (e) It is further ordered ana decreed that the defendant Rai Bahadur Gunendra Krishna Roy should deliver up to the plaintiff quiet, vacant and peaceable possession of premises No. 57, Jatindra Mohan Avenue, Calcutta. (f) It is further ordered and decreed that the defendant Rai Bahadur Gunendra Krishna Roy do pay the sum of Rs. 6,800 for damages for the said premises and do also pay to the plaintiff further damages in respect of the said premises at the rate of Rs. 200 per day commencing from 16th day of April, 1958 until possession thereof is delivered up to the plaintiff. (g) It is further ordered and decreed that the defendant Rai Bahadur Gunendra Krishna Roy do execute a conveyance in respect of the said premises in favour of the plaintiff or his nominee, such conveyance to be settled by the Registrar of this court and caused to be registered for and on behalf of the defendant Rai Bahadur Gunendra Krishna Roy refusing or neglecting to do so on the same being tendered to him. (h) It is further ordered and decreed that it be referred to the Registrar of this court with liberty to him to allocate reference either to the Official Referee or Assistant Referee of this court to make enquiry as to the encumbrance on the said premises. (i) This court do reserve consideration of all further directions and of the costs of reference herein until after the said officer after making the aforesaid enquiry shall make his report.;