- (1.) THIS is a suit for specific performance of an agreement for sale of a plot of land comprising an area of 5 cott. 9 Ch. between the plaintiffs and the defendants and also for a decree for rs. 3,380/- as damages and also for an order that the defendants do execute a bond of indemnity in respect of the said agreement and for costs etc. According to the plaint, by a written agreement for sale dated 20th June, 1960 executed within the jurisdiction of this court, the plaintiffs agreed to purchase from the defendants and the defendants agreed to sell to the plaintiffs premises No. 37/1, hindusthan Road, Ballgame, Calcutta, outside the jurisdiction of this court. The relevant terms under the said agreement may be stated as follows : (a) The plaintiffs shall pay Rs. 1001/- as earnest money at the time of the execution of the agreement and the balance price is to be paid at the time of the execution of the conveyance. (b) The defendants shall make out a good and marketable title and shall complete the transaction on approval of title of the said property by the plaintiffs' solicitor. (c) The transaction shall be completed within a period of three months from the date of the delivery of the title deeds by the defendants to the plaintiffs' solicitor. (d) In the event of defendants failing to make out a good and marketable title, the plaintiffs shall refund the said earnest money of Rs. 1001/- and shall also pay the costs of and incidental to the investigation of the title and of the said agreement which was settled at Rs. 150/- and also actual costs out of pocket expenses to be incurred by the plaintiffs. (e) If after approval of the title by the plaintiffs' solicitor the defendants fail to execute the necessary conveyance, the plaintiffs would be entitled in sue for specific performance of the contract and or for damages. The plaint, after reciting the said terms of agreement, states that in pursuance of the said agreement for sale the plaintiffs paid to the defendants the sum of Rs. 1001 - by way of earnest money. The time for compelling the transaction was for mutual convenience of the parties agreed to be extended from time to time until the end of the month of April 1961. It is alleged that the defendants agreed to execute a deed of indemnity in respect of the title deeds of the said property inasmuch as the original documents of title were destroyed by fire, according to the defendants. The plaintiffs' solicitor on or about the 25th Aug. 1960 sent the usual requisition on title to the defendants" advocate, but on or about the 23rd of november 1960 the defendants through their advocate returned the said requisitions on title and wanted to avoid the performance of the said agreement for sale on account of some unpleasant situation in the defendants' family. The plaint further alleges that on or about the 12th of April 1961 the draft conveyance was sent to the defendants for approval and return of the same but the defendants failed and neglected to do so. The plaintiffs asked the defendants specifically to perform the said agreement but the defendants refused to do so. It is stated that plaintiffs at all material times were and still are ready and willing to perform their part of the said agreement and to complete the conveyance. The plaintiffs have also asked for a decree for the sum of Rs. 3,380/- as damages on the basis of reasonable letting value of the said premises at the rate of Rs. 300/- per month and also as loss of interest at the rate of 6 per cent per annum on the consideration money kept idle with effect from 20th of June 1960. The material parts of the written statement are stated below :
(2.) THE defendants never agreed to execute a deed of indemnity in respect of the title of the defendants to the said premises. The defendants state that neither the title deeds nor any answer to any requisition on title was given to the plaintiffs' solicitor. It is also stated that the approval of the title by the plaintiffs' solicitor was conditional and, as such, amounted to rejection of title of the defendants by the plaintiffs. The defendants admitted that on account of some family disputes in respect of the said property they wrote a letter through their advocate dated 23rd November 1960 informing the solicitor for the plaintiffs that it would not be possible for them to proceed with the said agreement for sale. In the said letter the defendants also offered to return the earnest money and pay the actual costs incurred by the plaintiffs. Immediately, thereafter, there was a talk of settlement between the parties and the plaintiffs at the request of the defendants agreed to treat the said agreement as abandoned. By a letter dated 28th November 1960 the plaintiffs' solicitor wrote to the advocate for the defendants demanding a sum of Rs, 5,400/- in full settlement of their claim. The defendants considered the said demand of rs. 5,400/- as exaggerated and, as such, refused to pay the same. The defendants orally as well as by their advocate's letter dated 23rd November 1980 offered to put an end to the said agreement which was accepted by the plaintiffs. Under the circumstances the defendants did not answer to the requisitions of title and there was no occasion for the plaintiffs to send the draft conveyance on or about the 12th April 1961 as alleged. The defendants have denied that there was any extension of the date of performance of the agreement as alleged in paragraph 9 of the plaint. The plaintiffs by their said letter dated 28th November 1960 admitted that pecuniary compensation for the non-performance of the said agreement would afford adequate relief to them and that such compensation could be easily assessed or ascertained in, terms of money. The plaintiffs, therefore, are not entitled to specific performance of the said agreement and the defendants are not bound to execute the conveyance. The defendants have denied also the plaintiffs' claim of the said sum of rs. 3,380/- or any other sum as damages by way of reasonable letting value of the said property or as loss of interest. It is also stated that the court has no jurisdiction to try or entertain this suit inasmuch as this suit is a suit for land situated outside the jurisdiction of this court. The issues were settled as follows : 1. Was there any agreement for execution of deed of indemnity as alleged in paragraph 5 of the plaint ? 2. Was there any approval of title as alleged in paragraph 6 of the plaint ? if so, what is the effect thereof ?
(3.) DID the plaintiffs agree to treat the said agreement as at an end ?;