Bhaskar Bhattacharya, J. - (1.) This first appeal is at the instance of a plaintiff in a suit for specific performance of contract and is directed against the judgment and decree dated September 26,1997 passed by the Civil Judge, Senior Division, 3rd Court, Alipore in Title Suit No. 186 of 1988 thereby dismissing the suit.
(2.) The appellant filed the aforesaid suit for specific performance of contract dated November 27,1977 in the 3rd Court of Civil Judge, Senior Division, Alipore on 8th July, 1988 and the case made out by the appellant may be summarised thus: (a) The suit property consisted of more or less eight cottahs and three chittaks situated in premises No. 12, 13 and 14, Raja Subodh Mullick Road in the district of 24-Parganas (South). The property was owned by the respondent by way of inheritance from his father. (b) On 29th November, 1977, the respondent entered into an agreement for sale of the suit property at the price of Rs. 10.000/- per cottah and took Rs. 2,001/- as earnest money and part payment of consideration. At that point of time, there were several monthly tenants over the property and it was agreed that except one of those tenants, namely, Manick Chandra Sarkar, the defendant would evict all other tenants and will also fell down the banyan tree standing thereon and will give boundary wall at the cost of the plaintiff and for the purpose of eviction of tenants the plaintiff should be ready to pay a maximum amount of Rs. 3,000/-. (c) The plaintiff was all along ready and willing to perform his parts of the agreement and accordingly, there were several consultations with the defendant and the defendant was advised by the learned advocate for the plaintiff to institute suits for eviction against the tenants but the defendant for the reasons best known to him, did not file any suit and instead, he started killing time without taking any step for evicting the tenants. (d) The plaintiff on August 5, 1981 issued a letter to the defendant requesting him to arrange for eviction of the tenants and cutting down the trees and giving boundary wall but the said letter returned back with the postal remarks 'out of station'. The plaintiff sent another letter to the defendant on September 21,1981 requesting him to abide by the terms of agreement but having no answer from the defendant, the plaintiff met him at his house on several occasions with request to take step for eviction of tenants and removing the trees etc. and he also took him to the Local "Nagarik Committee" for the purpose of making negotiation for eviction of tenants. (e) The plaintiff again on April 1, 1982 issued a registered letter to the defendant requesting him to comply with the terms of the agreement. The defendant received the notice, met plaintiff and had some discussions but thereafter, remained silent for the reason best known to him. Subsequently, on 14th September, 1985 the plaintiff who to another letter with draft conveyance for getting income-tax clearance with the request to arrange for eviction of tenants. The plaintiff again on 8th November, 1985 sent another letter with a draft conveyance for getting income-tax clearance under certificate of posting with a request to take step for eviction of the tenants. The defendant though received the said letter, did nothing and finding no other alternative, the plaintiff again met the defendant in his house with request for taking step for getting income-tax clearance. The defendant agreed to take necessary step but nothing was done. (f) The plaintiff on 18th March, 1988 issued another registered letter to the defendant asking him to arrange for eviction of the tenants and removal of trees etc. as per terms of the agreement. The defendant received the notice and answered the said notice on 22nd April, 1988 by making various false allegations and returned the amount of Rs. 2001/- the amount of earnest money by a cheque. (g) In reply, the plaintiff at once sent a registered letter to defendant through his advocate asking him to send the draft conveyance already remitted so that the plaintiff could complete the transaction. On receipt of the said letter dated 22nd April, 1988 from the defendant, the plaintiff personally went to the defendants' house and enquired of him about the step he had taken for eviction of the tenants occupying the property. The defendant, in fact, gave no satisfactory reply and was unwilling to answer the queries regarding tenants. The plaintiff along with his agents also went to the locality and made enquiry on the spot regarding the steps initiated by the defendant for evicting the tenants and was prima facie satisfied that defendant failed and neglected to take any positive steps. (h) On receipt of the cheque, plaintiff refunded the demand draft for Rs. 20017- with covering note protesting the wrongful allegations made in the letter dated 22nd April, 1988 by registered post with A/D but the said envelope came back with the postal remark 'Refused'. (i) The plaintiff was, thus, all along ready and willing to perform his part of contract but the defendant refused to honour the same. The time was never the essence of contract.
(3.) The suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plant and the defence taken by the defendants is in substance as follows: (1) The plaintiff had no cause of action for filing the suit and the suit was barred by limitation as well as under section 56 of the Contract Act and section 16 of the Specific Relief Act. (2). In the agreement for sale, it was provided that the agreement should be completed within four months from the date of execution but the parties subsequently on 28th March, 1978 agreed that the time limit for completion of the agreement would be extended by further six months as plaintiff expressed his inability within the stipulated time of four months to complete the transaction by paying the balance amount of consideration money. (3) Time was the essence of the contract but the plaintiff within the stipulated time did not express his desire to comply with the terms of the agreement either in writing or paying the balance amount whereas the defendant was all along ready and willing to perform his part of the contract. (4) It was denied that there was any consultation with Sovamoy Banerjee, the learned advocate for the plaintiff as regards eviction of the tenants. According to clause 4 of the agreement, if more amount of money was required for getting the suit property free from the tenants, it was the duty of the plaintiff to pay a sum of Rs. 3000/- but the plaintiff never came forward to assist the defendant to get the suit property unencumbered from the tenants. (5) It was specifically denied that on 5th August, 1981 plaintiff issued a letter to the defendant requesting him to arrange for eviction of tenants, cutting down of trees and giving boundary wall. The defendant tried his best to get the suit property free from the tenants and the plaintiff was all along aware of such fact. Due to the resistance and refusal on the part of the tenants, it was impossible for defendant to get khas possession of the suit property and such fact was made known to the plaintiff. Despite refusal of tenants, the defendant personally approached the Local Nagarik Committee for rendering assistance to him but the said Committee ultimately expressed its inability to assist the defendant and the defendant was unable to proceed further for the above purpose and the plaintiff was asked to take back the earnest money. All these happened in the presence of plaintiff and the plaintiff was aware of impossibility of performance of the defendant's part of the contract by giving vacant possession although effective steps were taken by defendant. (6) It was denied that plaintiff on 14th September, 1988 sent another letter with draft conveyance for getting income-tax clearance with request to arrange for eviction of tenants or that on 8th November, 1985 sent another notice with a draft conveyance. (7) The agreement by its term automatically stood cancelled and the defendant returned the money by a bank draft. (8) The plaintiff after execution of the agreement neither visited the spot nor ever contacted with the defendant to lend his support to facilitate eviction of tenants and was sleeping over the matter. If the plaintiff was at all ready and willing to perform his part of contract he would not file the suit after lapse of about twelve years from the date of the agreement. ;