P.N.Mookerjee, J. - (1.) The only point which arises in this appeal is whether a contract for sale of land stood discharged and came to an end by reason of certain intervening or supervening circumstances, to which due reference will be made in the course of this judgment. The point was, even lately, not free from doubt and it was beset with considerable difficulties, but a recent pronouncement of the Supreme Court has clarified the position and considerably lightened our task.
(2.) The law to be considered is the law of frustration of contract as applicable to this country. The matter appears to be concluded by the decision of the Supreme Court in the case of Satyabrate Ghose v. Mugneeram Bangur and Co.. where under apparently similar circumstances, their Lordships of the Supreme Court rejected the plea of frustration of the contract, but, as the said case has been sought to be distinguished on facts and a seemingly new question has also been raised for our consideration and as it his been further argued that this Court, though bound by the Supreme Court's statement or enunciation of the principle, is not bound by any particular application of that principle, made by it in any particular case, and may make a different application of that principle even to the similar facts before it and reach a different conclusion, it is necessary to examine the whole position and record our views on the same in some detail.
(3.) The controversy, as we have said above, centres round the question whether the contract in suit came to an end by frustration due to the intervening circumstances, to which we shall presently refer. The material facts lie within a short compass and they stand as follows: The appellant Company, which was the defendant in the Court below, was the owner of a large tract of land, situate in the vicinity of the Dhakuria Lakes, which they intended to develop and sell by plots under their Lake Colony Scheme No. 1. In respect of two of these plots, plots Nos. 245 and 246, comprising an area of 10 cottahs, the Company entered into an agreement for sale with the plaintiff respondent Gurbachan Singh and received an earnest money of Rs. 202/- in pursuance & in terms thereof. By that agreement, the Company undertook to construct the roads etc. for appropriate enjoyment of the above plots as a building site. The terms of the agreement appear sufficiently from the two documents, the letter of agreement, more correctly, the letter of offer, Ext. A, and the earnest money receipt (which is really the acceptance) Ext. 1, which may be set out as follows: Ext. A: Letter of agreement by Gurbachan Singh to Mugneeram Bangur and Co. "To Mugneeram Bangur and Co., Land Department, Russa Road South. Tollygunge, Calcutta No. 488. Phone: South 135. Through Babu-- Re: Plot Nos. New No. 245/246 on 30' Road in Premises No. Lake Colony Scheme No. 1, Northern Block. Area measuring 10 ks. X. ch. ......sqr. ft. more or less. Dear Sir, I am willing to purchase the above plot of land from you at the average rate of Rs. 1,075/- (Rupees one thousand and seventy-five only) per Katta irrespective of the condition of the soil and I am ready to deposit Rs. 202/- of the actual value as an earnest money at once. I undertake to complete the transaction within one month from the date on (?) (of) completion of road on payment of the balance of the consideration money and time must be deemed as essence of the contract. If I fail to do so within the said period the earnest money deposited by me will be forfeited and you will be free to re-sell the land and I shall be liable for all damages that may result thereby. I also agree to sign a formal agreement in the form required by you if you so desire. Yours faithfully. Name: Gurbachan Singh, Address: 48/1, Chakraberia Road North. Dated the 19 Witness (Illegible) Address :-------------- N. B.--I agree to pay half of the value at the time of Registration of the Deeds and the balance within 6 years bearing interest at the rate of 6 per cent. per annum with half yearly rests and the said Plots Nos. 245 and 246, purchased by me shall remain charged for the payment of the balance of the purchase money in the manner as aforesaid and the necessary security deed and charge should be executed and registered by me at my own cost. Name: Gurbachan Singh. Address:-- Witness (Illegible) 4, Bakliar Sha Road, Tollygunge." Ext. 1;--Receipt for earnest money granted to Gurbachan Singh on behalf of Mugneerarn Bangur and Co., dated the 14th May, 1941. "Mugneerarn Bangur and Co., Land Department. No. 488. Phone: South 135. Russa Road South, Tollygunge, Calcutta, 14th May, 1941. Receipt. Received with thanks from Babu Gurbachan Singh of 48/1, Chakraberia Road North, the sum of Rs. 202/- (Rupees two hundred and two only) as earnest money having agreed to sell to him/her or his/her nominee 10 kottahs Ch. sq. ft. more or less in Plot No. New 245/246 on 30' Road in Premises No. Lake Colony Scheme No. 1 Northern Block at the average rate of Rs. 1,075/- (Rupees one thousand seventy-five only) per katta. The conveyance must be completed within one month from compilit (sic) roads date (?) on payment of the balance of the consideration money, time being deemed as the Essence of the Contract. In case of default, this agreement will be considered as cancelled with forfeiture of earnest money. Mukarari Mourasi one-third value of the land will be paid of (sic) the time of Registration the balance within 6 years bearing 6 per cent. interest. Rs. 202/- By Cheque No. BB/39 1678184 the Bhowanipur Banking Corporation Ltd. Dated 14-5-41. Revenue Stamp. Kanialal Muchal for Mugneeram Bangur and Co.";