- (1.)THIS is a suit for recovery of Rs. 21,400 including interest representing the balance of the purchase money for which the defendants have purchased the property in question from the plaintiffs.
(2.)THE plaintiffs case was that on 26th June 1961 there was an agreement between the plaintiffs and the defendants by which the plaintiffs agreed to sell a house situated at Residency Road and which is described in the plaint for a total consideration of Rs. 85,000 as mentioned in the various sale deeds. The plaintiffs case further was that the real consideration settled between the parties was Rs. 78,000 out of which the plaintiffs received only Rs 58,000 leaving a balance of Rs. 20,000. At the time of arguments however, the learned counsel for the plaintiffs abandoned this plea and conceded that the suit may be decided on the footing that the consideration fixed was Rs. 85 000 out of which the plaintiff had got Rs. 65,000 leaving a balance of Rs. 20,COO. The reason for this concession was that whatever may be the consideration between the parties, there was no dispute that a sum of Rs. 20,000 out of the entire consideration money was not paid to the plaintiffs. In view of these circumstances, therefore, I can take it that the real consideration of the sale deed was as mentioned in the various sale deeds that is to say Rs. 85,000 out of which the plaintiff had received Rs 65,000. According to the terms of the agreement dated 26 -6 -1961 the plaintiffs were to deliver vacant possession to the defendants within a period of four months from that date I might mention that at the time when the agreement to sell was executed, the property in question was in possession of the Income Tax department as a tenant which was paying a rent of Rs. 350 per month. It was also stipulated in the agreement that after the execution of the sale deed the purchaser would be entitled to the rent paid by the tenant. In fact, the main controversy between the parties centres round the interpretation, of that part of the agreement which relatees to (handing over vacant possession to the defendants within the stipulated period. The case of the plaintiffs further was, that they in fulfillment of their duties, gave a notice to the Income Tax department for vacating the premises but as the defendants accepted rent from the tenants without the knowledge of the plaintiffs and thus established direct contract with the tenant, they waived the condition regarding handing over of vacant possession. It was further pleaded that the agreement in so far as it related to the handing over of vacant possession to the defendants within a period of four months was an impossible agreement and was, therefore, void. Finally, it was averred that even if the agreement regarding handing over vacant possession to the defendants was valid, it amounted to a penalty for which the court could grant relief to the plaintiffs by fixing only a reasonable compensation for the breach of the terms.
(3.)THE case of the defendants mainly was that under the agreement the plaintiffs had undertaken to give vacant possession of the property to them, failing which a sum of Rs 20,000 was to be forfeited and since the plaintiffs did not perform their part of the contract, they were not entitled to the balance of Rs. 20,000 which stood forfeited. In other words, the defendants main plea was that the handing over of vacant possession was an integral part of the contract failing which the parties had agreed to fix pre -estimated damages at Rs. 20 000 and since the plaintiffs had committed a breach of the agreement, they were not entitled to recover this amount from the defendants. The defendants further contended that they did not contact the Income Tax department directly nor did they act as owners in effecting repairs to the property before the expiry of the period fixed in the agreement. The defendant, however, admitted to have received rent within the period stipulated and the explanation given by them was that under the agreement they were entitled to take the rent from the tenants after having purchased the property.
On the pleadings of the parties, the following issues were frmed : -

1. Whether in view of the terms and recitals of the agreement to sell relied upon by both the parties, the plaintiff is entitled to a decree of Rs. 20,000 O. P. P. 2. Has the defendant committed any breach of the terms of the agreement so for as he is concerned ? If so in what manner and with what effect ? O. P. P. 3. Is the provision in the agreement relating to relinquishment of Rs. 20.000/ - by the plaintiff a penal one so as to be unenforceable ? O. P. P. 4. Did the agreement between the parties become impossible of performance and as such void? O. P. P. 5. Did the defendants forfeit remedy by entering in collusion with the Income Tax department regarding the properties sought to be sold ? O. P. P. 6. To what relief, if any, is the plaintiff entitled ? O. P. P.