Asit Kumar Bisi, J. - (1.) This is the appeal by the defendants appellants and the same is directed against the judgment and decree passed by the learned Civil Judge, Senior Division, 2nd Court, Alipore on 28-1-2000 in Title Suit No. 1 of 1998.
(2.) The facts leading to the instant appeal may briefly be narrated thus. The plaintiff K.I.C. Resources Limited presently the respondent has instituted the suit praying for a decree for specific performance of the agreement for sale in respect of the suit property and damages against the defendants. As per the plaint case the defendants are the joint owners of the entire premises No. 172/2, Rash Behari Avenue, Calcutta 700029, which is described in the schedule to the plaint and hereinafter referred to as the suit property. The plaintiff company entered into an agreement with the defendants for purchasing the suit property on 26-5-93. Prior to the said agreement there was a Memorandum of Understanding dated 26-8-92 between the parties and the plaintiff company paid a sum of Rs. 2 lakhs and it was agreed that the defendants would sell the suit property by delivering vacant possession for the total consideration of Rs. 80 lakhs. The defendants have failed to deliver vacant possession of the suit property on the ground of certain pending litigations whereupon it was agreed that the plaintiff would purchase the suit property subject to pending litigations without getting possession of the ground floor and consideration had been reduced to Rs. 63 lakhs. On the date of execution of the agreement a joint Venture agreement was prepared in respect of the suit property at the desire of the defendants but the said agreement was never given effect to and the agreement for sale dated 26-5-93 was executed and acted upon and payment of earnest money was made in part payment of consideration under the said agreement. Pursuant to the agreement dated 26-5-93 the plaintiff paid a sum of Rs. 15,30,000/- (Rupees fifteen Lacs thirty thousand only) to the defendants. The defendants disclosed two litigations viz. IS. No. IN 13/1990 and T.S. No. 80/1991 with Shri Balaram Dey, brother-in- law of defendant No. 1 and uncle of defendant No. 2 who is occupying the ground floor of the suit property. Besides there is another litigation being T.S. 99/93 of the second Court of Asstt. District Judge, Alipore, in respect of the same suit property filed by one Bakul Rani Dhar and in that suit there was an order of injunction whereby the parties were directed to maintain status quo and as such the defendants were restrained from doing anything in favour of the plaintiff and as a result thereof in spite of its readiness and willingness the plaintiff company could not proceed further. After the injunction order was vacated the plaintiff company requested the defendants to proceed in the matter and to obtain permission from the Income Tax Department and clearance therefrom for selling the suit property but the defendants had never taken steps. The transaction was agreed to be completed within three months from the date of sanction of the plan from C.M.C. but the defendants never informed the plaintiff company as to the position regarding sanction of the plan. The defendants executed a general power of attorney in favour of one of the Directors of the plaintiff company but for the reasons best known to them the defendants revoked the said power of attorney by issuing a letter through their Advocate Mr. P. Bhaskaran and the entire matter regarding sanction of plan was ventilated to the C.M.C. authority, as a result of which the building plan on the verge of sanction is lying pending and from the said activities the mala fide intention and conduct of the defendants have been disclosed.
(3.) Further case of the plaintiff is that both parties agreed to apply for Income Tax clearance but the defendants took no step. A draft deed of conveyance for purchasing the suit property in the names of seven purchasers was prepared by the plaintiff who agreed to pay the balance of consideration by Banker's cheque and the said draft deed along with the copies of the Banker's certificate had been sent to Sri P. Bhaskaran, Advocate for the defendants with request to the defendants and their advocate to approve draft deed of conveyance in favour of the nominees of the plaintiff company. But the defendants did not extend their co-operation to the plaintiff and they created unnecessary dispute and spent time. Ultimately they informed Sri A.K. Sinha, the plaintiff's Advocate that the agreement had been cancelled by them and made all sorts of baseless allegations against the plaintiff company although the plaintiff company is all along diligent, ready and willing to purchase the suit property in terms of the agreement. A series of correspondence between Mr. A.K. Sinha, the plaintiff's Advocate and Mr. P. Bhaskaran the defendant's Advocate would show the dishonest intention and conduct of the defendants who want to grab illegally huge money received by them on account of part payment. It has been further alleged by the plaintiff that the defendants are trying to dispose of the suit property illegally to deprive the plaintiff company of its legitimate claim.;