SAHIDULLAH MUNSHI J. - (1.) This suit for specific performance of contract was filed by Shyama Enclave Private Limited, a company duly registered under the Companies Act , 1956, originally against Sri Sanjib Kumar Roy and Smt. Jamuna Bala Roy. Plaint was amended by an order dated 30th November, 2004 and subsequent purchasers have been added as defendant nos. 2(b) to 2(zx). On the death of defendant no.2, Smt. Jamuna Bala Roy, her name was struck off and her death has been recorded. One Shyam Sunder Dalal had also been added as defendant no.2(a). Defendant no.2, Jamuna Bala Roy, is the widow of Lalchand Roy and her son Sanjib Kumar Roy is the plaintiff no.1. Originally, defendant nos.1 and 2 were the owners of the suit property. They entered into an agreement for sale of the suit property to the extent of their respective shares of 6/7th and 1/7th. By an agreement in writing dated 22nd January, 2000, the defendants allegedly agreed to sell and the plaintiff represented by its Director, T.C. Gupta, agreed to purchase the suit property at a total consideration of Rs.1,70,00,000/- (Rupees One Crore Seventy Lakh) only. According to the plaintiff, the original defendants in the said agreement agreed - (a) That the vendor would apply and get permission from the Income Tax authorities under Section 269 UC of the Income Tax Act, 1961; (b) That after getting permission from Income Tax authorities under the aforesaid provision, the purchaser would pay to the vendor the total amount of Rs.1,70,00,000/- (Rupees One Crore Seventy Lakh) only. A sum of Rs.70,00,000/- (Rupees Seventy Lakh) only, was to be paid immediately, Rs.50,00,000/- (Rupees Fifty Lakh) only, was to be paid within three months and the balance of Rs.50,00,000/- (Rupees Fifty Lakh) only, within six months of the permission from the Income Tax authorities; (c) Upon receiving such payment of Rs.70,00,000/- (Rupees Seventy Lakh) only, from the purchaser, the vendor would hand over vacant and peaceful possession of the entire premises no.7, Grant Lane, Kolkata -12 except the ground floor and 50% of the first floor and on receiving the second payment of Rs.60,00,000/- (Rupees Sixty Lakh) only, from the purchaser, the vendor would hand over vacant and peaceful possession of the 50% of the first floor and on receiving the balance amount of Rs.50,00,000/- (Rupees Fifty Lakh) only, from the purchaser, the vendor would hand over vacant and peaceful possession of the entire ground floor of the entire premises for the exclusive use, sale or otherwise transfer of the purchaser. (d) The entire suit property (premises no.7, Grant Lane, Kolkata - 700012) was free from encumbrances and the vendor had a clear and undisputed marketable title to the said property. (e) All the original documents, title deeds regarding the suit property would be handed over by the vendor to the purchaser at the time of making first payment of Rs.70 Lakh. (f) The purchaser would have every right to sell, transfer and otherwise dispose of the entire and/or part area of the portion under the possession of the purchaser in the suit premises. (g) Until permission is obtained from Income Tax Authority as mentioned, the purchaser would be allowed to make internal works such as brick portions, electrical jobs, minor repairs, replacing asbestos roofs at top floors on behalf of the vendor.
(2.) The said agreement (Exhibit A) was executed by and between the plaintiff, Shyama Enclave Private Limited and the defendant nos. 1 and 2, namely, Sanjib Kumar Roy and his mother, Smt. Jamuna Bala Roy, the original defendant nos. 1 and 2. Defendant no.1 signed the agreement for sale and on behalf of his mother as her constituted attorney.
(3.) A supplementary agreement (Exhibit B) for sale was executed by and between the plaintiff and the defendant nos. 1 and 2 on 22nd February, 2000. Such supplementary agreement was executed by modifying, varying and/or amending the original agreement for sale dated 22nd January, 2000 and by the supplementary agreement, the parties agreed, inter alia, the following terms and conditions in order to make the new terms and conditions as part of the agreement dated 22nd January, 2000. Both the said two agreements dated 22nd January, 2000 and supplementary agreement dated 22nd February, 2000, constituted, according to the plaintiff, as an agreement for sale of the suit property. The supplementary agreement, inter alia, contained the following terms :- i) The suit property is free from all encumbrances and the vendor has a clear marketable title subject to placement for personal guarantee of the vendor as collateral security to the West Bengal Industrial Development Corporation Limited and the West Bengal Financial Corporation Limited. However, the said financial Institutions, i.e., the West Bengal Industrial Development Corporation and West Bengal Financial Corporation have already expressed their willingness to release the said property vide their letter no. F.1-83(277/13)I..718 dated 27th December, 1999 provided a sum of Rs.1,00,00,000/- (Rupees One Crore) only, is repaid to them. , ii) To implement the original agreement dated 22nd January, 2000 for sale of the suit premises the purchaser would pay a total sum of Rs.5,00,000/- (Rupees Five Lakh) only, on execution of the supplementary agreement, which the vendor accepted and acknowledged. iii) The purchaser would pay another sum of Rs.25,00,000/- (Rupees Twenty Five Lakh) only, by 22nd March, 2000 to the vendor. However, the consent to sell of the said property was obtained from the West Bengal Industrial Development Corporation and West Bengal Financial Corporation and would produce to the purchaser before making the payment of Rs.1,00,00,000/- (Rupees One Crore) only, to the West Bengal Industrial Development Corporation and West Bengal Financial Corporation. iv) That the purchaser was also authorized by the vendor to repay Rs.1,00,00,000/- (Rupees One Crore) only, to the West Bengal Industrial Development Corporation Limited and the West Bengal Financial Corporation directly on behalf of the vendor as part payment out of the total consideration money of Rs.1,70,00,000/- (Rupees One Crore Seventy Lakh) only, of the said property. v) On execution of the supplementary sale agreement the vendors would hand over absolute and peaceful vacant possession of the entire second floor comprising of a carpet area of 4195.50 square feet and one room attached with bathroom at the first floor of the suit premises. The purchaser would have all rights to divide the entire second floor into small offices and realize rent with the proportionate right and title in landing and all the common facilities, easement, passages, etc. vi) The lift, generator, AC and DC light connections, water motor etc. would remain as part and parcel of the suit property. vii) That the purchaser would forego the claim over ground floor without deducting any consideration money, i.e., Rs.1.70 Crore for the entire suit property for providing more time to pay the consideration money in terms of the earlier agreement dated 22nd January, 2000. All other terms and conditions, save and except mentioned in the supplementary agreement, the original agreement dated 22nd January, 2000 for sale of suit property, would remain unchanged and would be binding upon both the parties. ;