G.K.Mitter, J. - (1.) This is a suit for specific performance of an agreement in writing dated 22-7-1953 executed by the defendant, for possession of a shop room, for compensation in addition to specific performance and for other reliefs. .
(2.) The defendant is a monthly tenant of a shop room in premises No. 2 Lal Bazar Street, Calcutta paying rent of Rs. 110/- per month. He sublet a portion of this shop room to a firm known as National Marble Company at Rs. 60/- per month. By the agreement in suit, the defendant agreed to sublet the whole of the shop room to the plaintiff including the portion occupied by National Marble Company in consideration of Rs. 7,000/- to be paid by the plaintiff to him besides a sum of Rs. 110/- by way of monthly rent. The document provides that the plaintiff is to have no liability for taxes or any charges in respect of the holding. The important clauses of the document wherein the plaintiff is described as the first party and the defendant as the second party are as follows: 1. The second party has already sublet a portion of his tenanted room to Trilok Nath Vaish C/o. National Marble Company and shall sublet the entire room including the said portion to the first party and the said Messrs. National Marble Co. has agreed to remain as a sub-tenant under the First party on the same terms and conditions as it enjoys under the second party, 2. The rent to be paid by the first party shall Rs. 110/- per month in respect of the sublease including the portion occupied by National Marble Company. 3. The first party shall pay seven thousand rupees only as consideration to the second party for accommodating the first party in the above way and out of that sum of seven thousand rupees a sum of Rs. 101/- has already been paid as earnest money. 4. The second party shall give vacant possession of the shop room in his occupation within seven days from the date of the agreement to the first party. 5. The second party shall execute all necessary documents and deeds for enabling the first party to defend himself against the superior landlord within the said period of seven days and the transaction shall be completed within that time on payment of the balance of the said consideration. 6. On either party's failure to carry out the terms, the other party is to be entitled to compensation."
(3.) The plaintiff alleges in his plaint that after the execution of the above and payment of Rs. 101/- by way of earnest, the defendant made over certain documents relating to his tenancy rights to the plaintiff's lawyer. It is, further, alleged that the plaintiff applied to the defendant on several occasions to perform specifically the agreement on his part but the defendant failed and neglected to do so. In paragraph 6 of the plaint, there is the usual averment of readiness and willingness on the part of the plaintiff to perform the agreement by paying the balance of consideration to the defendant. In paragraph 8, the plaintiff charges the defendant with negotiating with other parties to let out the said shop room on higher premium. The plaintiff claims not only specific performance of the agreement but also damages alleged to have been suffered by reason of the defendant's wrongful refusal to act in terms of the agreement. Particulars of such damages are given at the foot of para. 9, as loss suffered by placing orders with different tea companies and being unable to deliver goods for want of the shop room and, secondly, loss suffered in respect of the profits which could not be earned for want of the shop room. In para. 10 of the plaint, the plaintiff claims refund of the sum of Rs. 101/- paid as earnest in case the Court does not direct specific performance and claims a further sum of Rs. 5,448/- as damages, full details whereof are given at the foot of the said paragraph, the most important item thereof being an alleged loss of trade amounting to Rs. 5,000/-.;