JYOTIRMAY BHATTACHARYA, J. - (1.) THIS Second Appeal is directed against the judgment and/or decree passed by the learned District Judge, A & N Islands, Port Blair on 17th March, 2009 in Other Appeal No.5 of 2003 affirming the judgment and decree dated 28th November, 2003 passed by the learned Civil Judge, Senior Division at Port Blair in O.S. No.31 of 1993. Both the learned Courts below dismissed the appellant 's claim for specific performance of contract on the ground of impossibility of performance of the contract, as one of the joint proposed purchasers did not join the plaintiff/appellant for enforcing the said contract in the said suit for specific performance of the contract and the plaintiff/appellant prayed for enforcement of the said contract in a modified way in deviation of the terms of the contract. While dismissing the plaintiff 's suit for specific performance of contract the learned Trial Judge held that refund of the earnest money to the plaintiff together with the interest thereon would be the appropriate relief in the facts of the instant case and accordingly a decree for refund of the earnest money together with the interest thereon was passed by the learned Trial Judge and the said decree was also affirmed in appeal by the learned First Appellate Court. Being aggrieved by the said judgment and decree of the learned First Appellate Court, the plaintiff/appellant has preferred the instant Second Appeal before this Court.
(2.) THE instant Second Appeal was admitted for hearing under Order 41 Rule 11 of the Code of Civil Procedure by the Division Bench of this Hon 'ble Court on 7th April, 2009 on the following substantial question of law: - Whether in view of the oral testimony of the first defendant, the plaintiff was entitled to a decree for purchasing half of the immovable property being the subject matter of the agreement sought to be specifically enforced? Heard the learned advocates of the respective parties on the aforesaid substantial question of law, which was formulated by the Division Bench of this Hon 'ble Court. This Court has not been invited to formulate any other substantial question of law in course of hearing of this appeal. As such, this Court restricts its consideration only to the substantial question of law which was formulated by the Division Bench of this Hon 'ble Court as aforesaid. Let me now consider the merit of the instant appeal with reference to the aforesaid substantial question of law. It is an admitted fact that the plaintiff/appellant along with the defendant/respondent no.2 namely M. Manickam entered into an agreement for sale with the defendant/respondent no.1 on 22nd December, 1990 for purchasing the entire suit property jointly for a total consideration of Rs.6,75,000/ -. Though it was recorded in the said agreement that the proposed purchasers paid One Lakh rupees each to the vendor at the time of execution of the said agreement towards the earnest money but the defendant/respondent no.2, one of the proposed purchasers filed a written statement jointly with the defendant No.1, denying payment of One Lakh rupees by him to the vendor towards the earnest money. Though the said defendant/respondent no.2 in his written statement challenged the enforceability of the said contract on various grounds but in fact ultimately he did not come forward to contest the said suit. The said suit was contested by the defendant/respondent no.1(vendor) who in his written statement filed jointly with the defendant no.2, challenged enforceability of the said contract as one of the joint purchasers has not joined the plaintiff for enforcement of the said contract jointly though they agreed to complete the said transaction by a composite sale on payment of the balance of the consideration money and the proposal for sale of the half of the suit property to the plaintiff is incapable of implementation as the agreement for sale is indivisible and sale cannot be completed in a modified way as suggested by the plaintiff. He further contended that the property has been subsequently destroyed by fire and thus the agreement became inexecutable. He further contended that he also terminated the said contract by notice and both the purchasers accepted the said notice.
(3.) THE plaintiff/appellant prayed for enforcement of the contract dated 22nd December, 1990 which was executed by the parties on 23rd December, 1990. Execution of the agreement for sale by the parties is not disputed. Though the agreement shows that both the proposed purchasers jointly agreed to complete the said transaction for purchasing the entire suit property by a composite sale but the plaintiff prayed for a decree against the defendant/respondent no.1 directing him to complete the sale of half portion of the double storied wooden house located towards the shop of Shri R. Damodaran consisting of two rooms on the ground floor and two rooms on the corresponding first floor standing at survey no.58, measuring 2,400 Sq. Ft. situated at Babu Lane, Aberdeen Bazar, Port Blair Tehsil in favour of the plaintiff/appellant by executing a proper sale deed and by getting the sale deed registered for perfecting the title of the plaintiff/appellant in the suit property. The plaintiff also prayed for a decree for issuance of direction upon the defendant/respondent no.1 to hand over vacant and peaceful possession of two rooms, one on the ground floor and another on the corresponding first floor previously occupied by R. Raju, tenant and other two rooms occupied by the washman to the plaintiff. The plaintiff also made an alternative prayer for recovery of the earnest money together with 12% interest thereon, in case the decree for specific performance of contract is not passed.;