- (1.) This is a suit for recovery of Rs. 8,200 with interest and costs in the circumstances mentioned below: In July, 1949 the Corporation of Calcutta advertised for sale several plots of land on Paramhangsa Deb Road in Ward No. 24. At the auction which was held on August 1949 the Plaintiff was declared the highest bidder in respect of one of the plots being plot No. 10, his bid being Rs. 6,100 per cottah. In terms of the conditions of sale the Plaintiff had to deposit Rs. 8,200, i.e., 25 per cent, of the purchase money. Within a few days thereafter, however, the Plaintiff wanted to resile from the transaction, and wrote to the Defendant Corporation on August 29, 1949 that he had discovered that "the cream of the "plot was tank filled and this constituted latent defect of the "property which it was the duty of the Corporation to disclose". The Plaintiff sought to rescind the contract on this ground and requested the Defendant Coloration to pay him back the sum of Rs. 8,200. Several letters following thereafter were placed before me during the opening of the case but were not relied on or proved during the trial. The Defendants are the Corporation of Calcutta and Aurelius David Khan who was the Administrative Officer of the Corporation of Calcutta appointed under the new Calcutta Municipal Act. The Defendants relied on the conditions of sale as giving the Plaintiff no right to rescind the contract and contended further that there was no material defect of the property as was sought to be made out by the Plaintiff.
(2.) The conditions of sale contained the following relevant clauses: Auction sale of Corporation surplus lands:
(3.) Notice is hereby given for information of the public that the following plots of the Corporation surplus land will be sold to the highest bidders above the reserve price, at the public auction to be held by the Chief Executive Officer at the Central Municipal Office on Wednesday August 3, 1940 at 3 p.m. on the conditions noted below: Public are invited to attend the auction and offer their bids. Plans of the lands, conditions of sale and other particulars may be seen in the office of the Chief Valuer and Surveyor on all working days during office hours. Description of lauds: Lots Nos. 8, 9 and 10 on Paramhangsa Deb Road in Ward Xo. 24 measuring about 5 cottahs 12 chittah, !" cottnhs 10 Chittalcs and 5 cottahs 6 chittoh respectively. Condition of sale: (i) The bidding for each lot shall be at so much per cottah and the highest bid above the reserve price will be accepted, subject to the approval of the Administrative Officer. (ii) The plots described above will be sold subject to the prior right of the respective previous owners to purchase the same provided they agree to pay forthwith the amounts of the highest bids for the respective plots that may be received at the auction. (iii) An earnest deposit of 25 per cent, on the amount of the purchase money is to be made in cash, unless otherwise directed by the Chief Executive Officer, by the successful bidder. immediately upon the lot being knocked down, and in default thereof, the premises is to be immediately put up and resold at the risk of the first purchasers. (iv) The area stated in the notice is approximately correct. The area to be paid for will be ascertained by joint measurement after the auction sale. (v) The title of the Corporation to the property sold shall be deemed to be accepted by the purchaser and he shall not, therefore, be entitled to make any requisition or objection respecting the same. (vi) In the event of any mis-description, such mis-description shall not be held to vitiate or affect the sale in any way, it being understood that intending purchasers shall satisfy themselves on all points before bidding as no objections shall be entertained after the sale. (vii) The successful bidder shall pay the balance of the purchase money (i.e., the value of the land minus the earnest deposit) within a month from the date of the Administrative Officer accepting the bid, failing which, the earnest deposit shall be forfeited and the land resold at the risk of the auction purchaser. (viii) The Corporation will execute a deed of conveyance in the form which may be seen in the office of the Keeper of Records of the Corporation. (ix) The Corporation enter into no other covenant than that they have done no act to encumber.;