- (1.) This is a suit for specific performance of an agreement for sale of a plot of land comprising an area of 5 cottahs, 9 chataks, 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 the costs etc. According to the plaint, by a written agreement for sale dated June 20, 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, Ballygunge, 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.1,001 as earnest money at the time of the execution of the agreement and the balance price is to be paid at the time of 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 plaintiff's 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 plaintiff's Solicitor. (d) In the event of defendant's failing to make out a good and marketable title, the defendants shall refund the said earnest money of Rs. 1,001 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 plaintiff's Solicitor the defendants fail to execute the necessary conveyance, the plaintiffs would be entitled to 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. 1,001 by way of earnest money. The time for completing the transaction was for mutual conveyance 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 August 25, 1960, sent the usual requisitions-on-title to the defendant's Advocate, but on or about November 23, 1960, the defendants through their Advocate returned the said requisition-on-title and wanted to avoid the performance of the said agreement for sale on account of some unpleasant situation in the defendant's family. The plaint further alleges that on or about April 12, 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 plaintiff's asked the defendants specifically to perform the said agreement, but the defendants refused to do so. It is stated that the plaintiffs at all material time 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 annum on the consideration money kept idle with effect from June 20, 1960.
(2.) The material parts of the written statement are stated below: 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 plaintiff's Solicitor. It is also stated that the approval of the title by the plaintiff's 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 November 23, 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 November 28, 1960, the plaintiff's 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 ad as such, refused to pay the same. The defendants orally, as well as by their Advocate's letter dated November 23, 1960, 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 requisition-of-title and there was no occasion for the plaintiffs to send the draft conveyance on or about April 12, 1961, as alleged. The defendants have denied that there was any extension of the date of performance of the agreement of alleged in para 9 of the plaint. The plaintiffs by their said letter dated November 28, 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 plaintiff's 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: (i) Was there any agreement for execution of deed of indemnity as alleged in para 5 of the plaint? (ii) Was there any approval of tile as alleged in para 6 of the plaint? If so, what is the effect thereof? (iii) Did the plaintiffs agree to treat the said agreement as at an end? (iv) Was there any extension of time as alleged in para 9 of the plaint? Was the month of April, 1961, a reasonable time? (v) Did the plaintiffs send the draft conveyance as alleged in para 10 of the plaint? If so, did the defendants and/or their Advocate fail and/or neglect to return the said draft. (vi) Are the plaintiffs entitled to specific performance of the said agreement or are the defendant bound to complete the said transaction as alleged in para 13 of the plaint? (vii) Has this Court jurisdiction to receive or try to determine this suit? (viii) Did the plaintiffs admit that pecuniary compensation only would afford adequate relief and if so, can such compensation be easily assessed or ascertained as alleged in para 14 of the written statement? (ix) To what relief, if any, the plaintiffs are entitled?
(3.) It is not disputed that the agreement for sale of the premises No. 37/1, Hindusthan Road, Ballygunge, Calcutta, was executed within the jurisdiction of this Court. Admittedly the property was situated outside the jurisdiction, of this Court, but the plaintiff No. 1 has stated that the agreement for sale of the said premises was executed at premises No. 8A, Beadon Street, Calcutta, within the aforesaid jurisdiction. The defendants, on the other hand, have admitted that the agreement was executed between the parties at premises No. 11, Goabagan Street, Calcutta. The said two premises, situate within the jurisdiction of this Court, are very close to each other and are places where either or more of the defendants used to reside at the relevant time. The said agreement for sale dated June 20, 1960, (Ex. A) is an admitted document. Although various issues were raised, the substantial issue of fact is whether the plaintiffs accepted the proposed offer of the defendants to terminate the said agreement for sale. I, therefore, propose to discuss the issue No. 3 first.;