R. Dayal, J. - (1.) This appeal arises from the judgment and decree dated 30th September, 1996 of the 10th Court of Assistant District Judge, Alipore, 24 Parganas whereby the suit brought by the appellant was dismissed for specific performance of contract but was decreed for Rs. 85,121/- towards compensation alongwith interest thereon @ 21% per annum from 6.6.1987 to 4.6.1990 and @ 12% per annum from 5.6.1990 till realisation.
(2.) Defendant No.1 Mala Basu and defendant No.2 Mandira Deb Roy are sisters and defendant No. 3 Jyotshna Guha is their mother. They are the owners of the land with the building erected thereon having areas of 3 cottas, two chittaks and eighteen square feet, bearing Municipal No. 54A, Hindusthan Park, P.S. Gariahat, Calcutta - 700 029, District 24 Parganas (South) as per the details given in the schedule to the plaint. All the three respondents have equal shares, each one of them having one third share in the property in question. On 6th June, 1987, there was an agreement between the plaintiff and defendant No.1 whereby defendant No.1 agreed to sell to the plaintiff, the aforesaid property representing to him that the other co-sharers would also join in the execution of the sale deed. Sale consideration was agreed to be Rs. 7,50,121/- out of which a sum of Rs. 75,121/- was paid in cash. Besides, three chaques were also given, one in favour of defendant No.1 of Rs. 10,000/-, second in the name of defendant No.2 again for Rs. 10,000/-, and the third in the name of defendant No. 3 for Rs. 5000/-, to defendant No. 1 as earnest money and in p payment of the total consideration. The plaintiff brought the suit from which this appeal has arisen for specific performance of the contract and, in the alternative, for a decree for compensation. The plaintiff inter alia, pleaded that defendant No. 1 had represented to him that she was the constituted attorney of defendant Nos. 2 and 3 and was looking after the suit property on behalf of the those defendant and was also authorised to negotiate sale and execute the agreement for sale and the agreement of sale was drafted by the learned Advocate for the defendants Smt. Superna Biswas. The plaintiff further pleaded that the agreement was signed on behalf of the defendants by defendant No. 1 alone and the negotiation and transaction was carried on and finalised in the presence of and with the participation of the learned Advocate for the defendants but the defendants did not execute the sale deed in pursuance of the agreement despite service of notices and oral request. Further, it is alleged that the plaintiff had always been and is still ready and willing to perform his part of the contract, but the defendants had failed to perform their part of the contract. Defendant No.1, in her written statement, denied the plaint allegations and even that a sale transaction was even negotiated and finalised between the parties. She also denied that she was holding Power of Attorney of respondent Nos. 2 and 3 or was authorised to execute agreement for sale on their behalf. She alleged that negotiation was not for selling the property but for procuring money on loan. Defendant Nos. 2 and 3, in their written statement, denied to have entered into any agreement with the plaintiff or to receive any part of sale consideration. Following issues were framed by the learned Trial Court : 1. Is the suit maintainable in law? 2. Has the plaintiff any cause of action against the defendants? 3. Is the suit barred by the principles of estoppel, waiver and acquiescence? 4. Is the suit barred by the provision of Section 34 of the Specific Relief Act? 5. Is the plaintiff entitled to get a decree for specific performance of contract, damage and injunction as prayed for? 6. Is the plaintiff entitled to get a decree as prayed for? 7. To what relief, if any, is the plaintiff entitled? Issues No.1 to 4 were not pressed at the trial. Issue No. 5 was decided against the plaintiff holding that the agreement of sale did not bear the signatures of defendant Nos. 2 and 3 and that the agreement did not even purport to have been signed by defendant No.1 on behalf of defendant Nos. 2 and 3 and as such it could not be said to be binding upon defendant Nos. 2 and 3. On issue No.6 the learned Trial Court came to the finding that the two cheques which had been issued in favour of defendant Nos. 2 and 3 had not been encashed and defendant No.l had received a total amount of Rs. 85,121/- as earnest money of which Rs. 75,121/- was received in cash and Rs. 10,000/- by cheque. The plaintiff was held entitled to this amount of Rs. 85,121/- as compensation alongwith interest, as stated earlier.
(3.) It is manifest from the agreement of sale that it was not executed by defendant Nos. 2 and 3 nor any one else on their behalf. It is also not proved that defendant No. 1 was holding any power of attorney from defendant Nos. 2 and 3. Admittedly, the cheques meant for defendant Nos. 2 and 3 were not enchashed. There is no dispute that the plea of loan taken in the written statement by defendant No. 1 is without any merit. In the circumstances, it was not disputed at the time of arguments that the agreement of sale was not binding on defendant Nos. 2 and 3 and the plaintiff/appellant is not entitled to relief of specific performance against defendant Nos. 2 and 3.;