D.K. Seth, J. - (1.) In this case the suit was filed on the ground that the consideration written in the Deed of Conveyance did not represent the consideration agreed between the parties and a further amount is still due from the purchaser and prayer was made for cancellation of the Deed. In support of the aforesaid contention, an application for injunction was made. This was rejected by the learned Court below. This appeal has, therefore, been preferred against the said order and an application for injunction is also made.
(2.) After admitting the appeal and hearing the question of interim order, it appeared to us that no useful purpose would be served by keeping the appeal pending. Therefore, we proposed to hear out the appeal along with the application. By consent of parties, the matter was treated as on day's list and hearing was commenced on the last date. Mr. Roy Choudhury had concluded his submission. Mr. Pratap Chatterjee was advancing his argument, which remained inconcluded. The matter is taken up today. Mr.Chatterjee had concluded his submission. Mr. Roy Choudhury had replied thereto.
(3.) The plaint case as has been arranged seems to be reflected in paragraphs 41 and 42 of the plaint (at page 20 of the application) which runs as follows : "41. That it was clearly agreed, understood and settled that the total consideration for sale of the property as referred to be suit property for Rs. 2,20,50,000/- out of the said total consideration, the defendant Nos. 1 and 2 will withhold a sum of Rs, 48,50,00/- for settling with tenants for eviction, and out of the said amount, besides the actual payment, if any, to the tenants, balance would be refundable. More so, out of the total consideration, there has been illegal withholding of Rs. 57 Lacs in the manner as stated above. 42. That in fact, out of the total amount of Rs. 2,20,50,000/- an amount of Rs. 48,50,000/- has been withheld on account of eviction of tenants and Rs. 57,00,000/- has been withheld for payment to M/s. Howrah Towers Pvt. Ltd. Thus total amount actually received by the plaintiff is Rs. 1,15,00,000/- and the balance amount yet to be received by the plaintiff is amounting to Rs. 1,05,50,000/-. Out of the said balance dues, the plaintiff has liability, if any, stands to Rs. 17,00,000/- on account of M/s. Howrah Towers Pvt. Ltd. and the actual amount to be incurred for evicting the tenants. The defendants are withholding these amounts in trust for the plaintiff and she is entitled to receive the same. On the contrary by practicing fraud the defendants have made illegal gain to that extent." ;