A.K. Mukherjea, J. - (1.) This is an appeal from a judgment and decree dated April 8, 1965, by which the Plaintiff -Appellant's suit for specific performance of an agreement of sale in respect of a property in Calcutta was dismissed by the learned trial Judge.
(2.) The facts out of which the appeal arises are as follows: On September 29, 1960, the Defendant through his Solicitor, S.K. Guha, offered to sell to the Plaintiff premises No. 63, Colutolla Street, Calcutta, free from all encumbrances at the price of Rs. 95,000. The offer was to remain open till October 4, 1960. On October 1, 1960, the Plaintiff wrote to S.K. Guha offering to purchase the premises on certain terms and conditions contained in that letter. One of the terms included in that letter was that the transaction will be completed within three months from the date of delivery of the title deeds relating to the property. The Plaintiff sent a cheque for Rs. 5,000. On October 3, 1960, the Plaintiff's offer contained in the letter of October 1, 1960, was accepted by the Defendant who promised to send the title deeds to the Plaintiff's Solicitors on November 2, 1960. Under cover of a letter dated November 2, 1960, S.K. Guha, the Solicitor of the Defendant wrote to Messrs. Mukherjee and Biswas who were the Plaintiff's Solicitors about the agreement between the parties and sent four documents along with that letter. The four documents that were included were: (1) One brief in Suit No. 766 of 1958; (2) One certified copy decree in Suit No. 1086 of 1942 and Commissioner's Report; (3) One copy draft decree in Suit No. 766 of 1958; (4) One certified copy Plan.
(3.) The Defendant's Solicitor S.K. Guha said that the title of the property would appear from the statements in the plaint in Suit No. 766 of 1958 and from the documents disclosed therein. S.K. Guha offered to explain to Mr. Biswas of Messrs. Mukherjee and Biswas the Defendant's title further if Mr. Biswas so desired. On November 4, 1960, Messrs. Mukherjee and Biswas sent an 'accountable receipt' for the four documents which had been sent to them and told S.K. Guha that they had not received any formal instructions from D.S. Suraiya and that they had written to the Plaintiff for such formal instructions -On December 13, 1960, Messrs. Mukherjee and Biswas wrote to S.K. Guha and told him that they had perused the papers relating to the title of premises No. 37, Colutolla Street, which had been sent to them on November 3, 1960. They pointed out, however, that in the report filed by the Commissioner of Partition it had been directed that the title deeds of the property included in Lot A of Schedule 2 were to remain in the custody and possession of the Plaintiff in the said suit, i.e., Satyendra Lal Dutt (who is the Defendant in the instant suit). Since premises No. 37, Colutolla Street, was comprised in Item 5 of Lot A of Schedule 2, the title deeds according to the Commissioner's report ought to be in the possession of Satyendra Lal Dutt Messrs. Mukherjee and Biswas asked S.K. Guha to send these title deeds against the 'accountable receipt' of Messrs. Mukherjee and Biswas. As there was no reply sent by S.K. Guha to this letter on December 23, 1960, Messrs. Mukherjee and Biswas sent a reminder. On December, 27, 1960 S.K. Guha wrote to Messrs. Mukherjee and Biswas to say that no original documents of title came into the Defendant's possession. Guha further stated that the parties to the partition had none of those documents, a fact which was affirmed by an affidavit in the partition proceedings. In this connection Guha asked Messrs. Mukherjee and Biswas to refer to Mr. T.K. Ghose, Engineer, who had been appointed Commissioner of Partition in the partition suit No. 1086 of 1942. S.K. Guha called upon the Plaintiff's Solicitors to send to him the requisitions on title for answer. Incidentally, he regretted the delay in his reply. On December 28, 1960, Messrs. Mukherjee and Biswas referred S.K. Guha to certain provisions in the Commissioner's report a certified copy of which they said had been procured by them in the mean time. Verbatim copy of an extract of the Commissioner's report was set out in the letter. The relevant portion reads as follows: 15. I DO HEREBY CERTIFY AND REPORT that upon enquiry I have been able to get in possession of the document of title of the joint estate fully described in Schedule II parts 'A' and 'B' hereunder. 16. I DO HEREBY DIRECT that the title deeds of the properties included in Lot 'A' fully described in Schedule II hereunder shall remain in the custody and possession of Satyendra Lal Dutt and of properties included in Lot 'B' shall remain with me until I make the sub -partition between Nripendra Lal Dutt and his assigns. Messrs. Mukherjee and Biswas stated that premises No. 37, Colutolla Street, was comprised in Item No. 5 of Lot A in Schedule II and all the premises comprised in Lot A in Schedule II had been allotted to the present Defendant as and for his half share in the joint estate. The Commissioner's report contained a list of the title deeds of the properties in Lot A. The whole list is set out in the letter of Messrs. Mukherjee and Biswas who requested S.K. Guha to reconsider the position and let them have his final views and offered to furnish S.K. Guha with the certified copy of the Commissioner's report for his perusal. Messrs. Mukherjee and Biswas also requested S.K. Guha to forward them a copy of the affidavit referred to in his earlier letter of December, 27, 1960. S.K. Guha did not send a reply to this letter and on January 11, 1961, Messrs. Mukherjee and Biswas asked for a reply without delay. Even after this reminder S.K. Guha did not apparently send any reply before April 17, 1961, i.e. to say, practically after 3 months 20 days from the date of the original letter of the Plaintiff's Solicitor. In that letter S.K. Guha tells Messrs. Mukherjee and Biswas that the client had been able to trace the first four documents mentioned in the letter dated December 28, 1960, of Messrs. Mukherjee and Biswas. He stated, however, that the last two documents mentioned in the letter were never delivered to the present Defendant. S.K. Guha further stated that according to an affidavit of Khagendra Lal Saha, a party to the suit, Satyendra Lal Dutt v/s. Nripendra Lal Dutt filed before the Commissioner of Partition, these two documents were with the liquidator of Nath Bank Ltd. (in liquidation). S.K. Guha asked Messrs. Mukherjee and Biswas to inspect the original affidavit which was with Mr. T.K. Ghose and said that on a perusal of that affidavit the Plaintiff's Solicitors would be satisfied that the two documents concerned were never delivered to the Plaintiff. The other four documents were, however, enclosed with that letter. On April 19, 1961, Messrs. Mukherjee and Biswas while sending to S.K. Guha their accountable receipt for the documents sent on April 17, asked S.K. Guha to send them a copy of the affidavit of Khagendra Lal Saha and said that if necessary they would write to him again for inspection of the original document. They also enquired as to how and in what proceedings the two documents referred to in their letter of December 28 (i.e. to say the registered conveyance dated February 23, 1942, of premises No. 37, Colutolla Street, Calcutta, from Nripendra Lal Dutt to Khagendra Lal Saha and the registered conveyance dated February 23. 1942, of the premises No. 63/1 and 64, Colutolla Street, Calcutta, from Nripendra Lal Dutt to Khagendra Lal Saha) came into the possession of the liquidator of Nath Bank Ltd. (in liquidation) and also in what right were these documents held by the liquidator. On May 11, 1961, S.K. Guha sent a copy of the affidavit of Khagendra Lal Saha to Messrs. Mukherjee and Biswas. Thereafter apparently both sides lay low until on July 19, 1961, Messrs. Mukherjee and Biswas wrote to S.K. Guha telling him that the matter was pending for a long time and it was desirable that some finality should be arrived at. They also stated that their client, the Plaintiff in this case, had requested them to arrange for an interview with S.K. Guha in which both the respective clients could be present. Messrs. Mukherjee and Biswas asked for an appointment so that their client could be present By a letter of July 20, 1961, S.K. Guha asked Mr. Biswas of Messrs. Mukherjee and Biswas to fix a date convenient to him. Messrs. Mukherjee and Biswas on July 24, 1961, wrote back appointing July 27, 1961, for a conference. After this conference there is a long interval during which there was no correspondence between the parties at all. We have no clear account of actually what transpired at the conference. It appears, however, that on February 13, 1962, S.K. Guha wrote to Messrs. Mukherjee and Biswas to return to him in course of the day the certified copy of the decree dated March 2, 1954 and the certified copy of the Commissioner's report in Suit No. 1086 of 1942 Satyendra Lal Dutt v/s. Nripendra Lal Dutt. This was Item No. 2 of the four documents sent by S.K. Guha to Messrs. Mukherjee and Biswas on the latter's accountable receipt dated November 3, 1960. S.K. Guha said that he wanted these documents for obtaining permit for cement for repair of premises No. 62, Colutolla Street, which was also covered by the same document. This letter apparently reached Messrs. Mukherjee and Biswas on the same day at about 545 P.M. On March 24, 1962, S.K. Guha wrote a letter to Messrs. Mukherjee and Biswas in which he repeats that there was a mis -statement in the Commissioner's report that two documents were with the Defendant. S.K. Guha suggested that the incorrectness of that statement could be verified from the affidavit of Khagendra Lal Saha filed before the Commissioner of Partition. The Commissioner of Partition himself was prepared to make a fresh statement to that effect. S.K. Guha further says that he had tried to obtain a statement from the liquidator of Nath Bank Ltd. to the effect that the documents were lying with him but the liquidator apparently was not prepared to give such a statement. S.K. Guha says that he had also consulted his counsel who could not, however, give any suggestion as to how the mis -statement in the Commissioner's report could be rectified and S.K. Guha invited Mr. Biswas of Messrs. Mukherjee and Biswas to advise him as to how that could be done. S.K. Guha requested Messrs. Mukherjee and Biswas to be satisfied with the position of the title deeds and to proceed with the completion of the transaction. S.K. Guha further states in that letter that the Plaintiff had seen S.K. Guha in that connection and that S.K. Guha had explained to the Plaintiff "the whole position". S.K. Guha requested Messrs. Mukherjee and Biswas to ignore the obvious mis -statement in the Commissioner's report and to expedite the completion of the transaction. On April 18, 1962, Messrs. Mukherjee and Biswas in reply to S.K. Guha's letter of March 24, 1962, asked S.K. Guha to send them a copy of the affidavit of Khagendra Lal Saha referred to in his letter under reference and also the draft of the statement which according to S.K. Guha the Commissioner of Partition was prepared to make. In reply, on June 11, 1962, S.K. Guha sent a copy of the affidavit of Khagendra Lal Saha filed before the Commissioner of Partition. The copy was counter -signed by T.K. Ghose who had the original affidavit in his possession. On August 6, 1962, Messrs. Mukherjee and Biswas wrote to S.K. Guha with reference to an interview which S.K. Guha had with Messrs. Mukherjee and Biswas on the preceding Thursday. Messrs. Mukherjee and Biswas states in that letter that they had seen the Plaintiff in connection with that interview but that the Plaintiff was not willing to cancel the agreement for sale and to obtain refund of the earnest money which apparently S.K. Guha had suggested in the interview on the preceding Thursday, i.e., on August 2, 1962. Messrs. Mukherjee and Biswas in the same letter enquired as to whether the documents referred to in the affidavit of Khagendra Lal Saha were still in the possession of the liquidator of Nath Bank Ltd. (in liquidation) and whether any suit had been filed by Nath Bank Ltd. (in liquidation). In the event of such suit having been filed Messrs. Mukherjee and Biswas asked for particulars of such suit. Messrs. Mukherjee and Biswas also requested S.K. Guha to return the certified copy of the decree dated March 2, 1954 and the certified copy of the Commissioner's report in Suit No. 1086 of 1942 which they had returned to S.K. Guha at his request on February 13, 1962. On August 6, 1962, S.K. Guha wrote to Messrs. Mukherjee and Biswas stating that the Plaintiff had kept the transaction outstanding for more than a year and that "it is abundantly clear that he has no present intention to complete the purchaser". S.K. Guha says that it is for that reason that he had approached Mr. Biswas to cancel the agreement and take back the earnest money. S.K. Guha states that his client had no knowledge of the questions asked in the previous letter of Messrs. Mukherjee and Biswas and could not be of any further assistance to Messrs. Mukherjee and Biswas in the matter. He complains that the questions have been put only to delay the matter further. S.K. Guha further states that his client was not prepared to be bound indefinitely under the agreement for sale and that his client had instructed Kim to return the earnest money paid by the Plaintiff without exercising his right to have the earnest money forfeited. This letter appears to have been received by Messrs. Mukherjee and Biswas on August 7, 1962, at 10 -55 A.M. On August 8, 1962, S.K. Guha sent a cheque for Rs. 5,009 drawn in favour of the Plaintiff in refund of the earnest money paid by him on October 1, 1960. The letter was received by Messrs. Mukherjee and Biswas on the same day at 12 -05 P.M. On the same day, i.e. on August 8, 1962, Messrs. Mukherjee and Biswas returned the cheque stating that their client, the Plaintiff, was not agreeable to the cancellation of the agreement for sale and to obtain refund of the earnest money. They further state that "the reason for keeping the transaction outstanding" will appear from the correspondence that had passed between the Solicitors and they state further on instructions from their client that the Plaintiff was a willing purchaser and it was incorrect to suggest that he had no intention to complete the purchase. They further stated that if any attempt was made by the Defendant to commit a breach of the agreement for sale the Plaintiff would take legal steps for protection of his interest. On August 24, 1962, Messrs. Mukherjee and Biswas sent the requisitions on title for answer. By a letter dated August 27, 1962, S.K. Guha refused to answer the requisitions on title and sent back the cheque stating that the Plaintiff was never ready to complete the transaction within a reasonable time. He also asked for return of the title deeds sent on accountable receipt. On August 28, 1962, Messrs. Mukherjee and Biswas wrote to S.K. Guha denying the allegations made by him in his letter of August 27, 1962 and repeating that the Plaintiff was all along ready and willing to perform the contract. They, however, returned the documents received under accountable receipt "without prejudice". Thereafter on September 8, 1962, the present suit was filed by the Plaintiff. The Plaintiff alleges that the Defendant has wrongfully refused to answer the requisitions and has committed breach of the agreement. The Plaintiff claims specific performance of the agreement and also damages for Rs. 25,000 in addition to specific performance. In the alternative the Plaintiff asks for Rs. 50,000 as damages in lieu of specific performance.;