- (1.) Respondent was the owner of the suit premises being premises No. 8 Short Street Calcutta being a two storied building and the land appurtenant there-to measuring about 23 cattahs 10 chataks and 40 square feet. The respondent wanted to develop the property as a two storied building where they would reside; the building was in dilapidated condition. The respondent was residing along with her family members whereas the ground floor was occupied by various occupants. One of the occupants was Indian Institute of Material Management. They were occupying the premises for a long time as a tenant. Through common relation, the respondent got acquainted with one Dipak Bapna a director of the appellant. Bapna was promoter by occupation. They discussed the issue of development of the property on or before September 1, 1986 that we find from the joint minutes recorded in a sheet of paper appearing at page 364. Both of them signed, the signatures appearing therein were not in dispute. On a combined reading we find, they agreed to go for joint venture where Bapna would develop the property and the parties would share the built up area equally.
(2.) The parties also agreed, any money spent for detaining vacant possession would be advanced by the developer to be repaid by the landlord at the time of handing over possession of their proportionate area. As and by way of interim arrangement, the developer would also assist the landlord to find an alternative accommodation at a reasonable rent to be paid by the developer and adjusted against "final settlement". There would be a security deposit for 15 lacs repayable on handing over of possession of the built up area. The parties entered into a formal agreement on December 23, 1987 for development, appearing at page 16-54 of the paper book. The relevant clauses that would come up for consideration would be Article V Clause (viii) and Article VII Clause xii (a) and xii (b) that are quoted below: Article V Clause (viii) "Simultaneously with the execution of this Agreement by the parties hereto, the Developer shall keep in deposit with the owner a sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand) only carrying no interest as Security Deposit which will be refunded on completion of the Project and further Rs.13,50,000/- (Thirteen Lacs Fifty Thousand only) shall be paid by the Developer to the owner as interest free refundable security deposit upon the owners delivering full vacant possession of the said property. The said security deposit shall be held by the owner free of interest till three months after completion and there after the same will be refunded to the developer." Article VII (xii) (a) "It has been agreed by and between the parties hereto that the owner will deliver the entire ground floor less one room and bathroom of the said property to the developer in part performance of the obligations with effect from 15th September, 1987 and till demand and the developer will compensate the owner @ Rs.1500/- rent and Rs.3500/- as maintenance charges. (xii) (b) "Parties hereto above have also agreed specifically that in case of any default or non-performance of obligations on the part of the developer the possession of Ground Floor Flat will be returned to the owner immediately on demand and/or the developer return peaceful vacant possession of the said flat in case of no sanction being granted by the Calcutta Municipal Corporation."
(3.) Despite such agreement being entered into, the appellant did not construct the building and the agreement got frustrated. The respondent would contend, the appellant had no money hence, they could not proceed whereas the appellant would contend, the respondent did not hand over vacant possession although the appellant took every step to have the tenant removed from the premises to get vacant possession. Fact would remain, that we gather from the evidence-on-record. The agreement got frustrated as IIMM did not vacate the premises as a result, the parties could not proceed further. The respondent terminated the contract and filed a suit asking for possession of the flat in question that the appellant occupied while entering into the transaction for their use during the time when development would take place. The appellant contested the suit. The appellant took the plea, they were supposed to assist the landlord for the purpose of getting vacant possession.;