JUDGMENT
Monoj Kumar Mukherjee, J.
1. The appellants before us instituted the suit, out of which the present appeal arises, against the three respondents in the City Civil Court at Calcutta praying for a decree for specific performance of contract against, alternatively, for recovery of Rs. 7,000/- with interest from, the respondent 1. The case of the appellants was as follows. Sri Pran Krishna Bhattacharjee, father of the appellants, was a tenant under Respondent 1 in respect of the suit premises and the other two respondents were sub-tenants under him, In or about April, 1974 the respondent 1 agreed to sell the suit premises to the appellants and took a sum of Rs. 1,500/- as earnest money. Pursuant thereto the appellants entered into a formal agreement with the respondent 1 on Jan. 10, 1975 for purchase of the suit premises for a consideration of Rs. 45,000/- on terms and conditions embodied in the deed. A further sum of Rs. 500/- was paid to the respondent 1 on the date of execution of the agreement and on the following day another sum of Rs. 5,000/- was paid by the father of the appellants. As per Clause 3 of the deed the respondent 1 was to deliver forthwith to the appellants or their lawyer Sri Prafulla Kumar Chowdhury certified copies of the documents of title and other relevant papers for investigating into the title hut the respondent 1 utterly failed and neglected to deliver the said documents to the appellants or their Advocate in spite of repeated requests alleging difficulties due to marriage ceremony of his daughter and other pre-occupations. As a result Sri Chowdhury could not proceed with the investigation and searches and deliver any requisition before Jan. 31, 1975, the date by which the purchase of the property was to be completed in terms of the agreement.
2. The further case of the appellants was that they believed in good faith that the respondent 1 would honour the agreement by supplying necessary particulars and delivering the documents of title and, in fact, the respondent 1 always assured the appellants that he would do the needful as per agreement and close the deal. The father of the appellants requested the respondent. No. 1 on several occasions to supply the documents of title but without any success. According to the appellants, they were always willing and ready to complete the transaction but the matter was unusually delayed due to failure on the part of the respondent 1 fo perform the initial part of the contract by handing over the documents of title. Thereafter the respondent 1 through his Solicitor illegally revoked the contract for sale and the appellants through their Lawyer sent a letter refuting all the allegations made by the respondent 1 while making out a case for revocation of the contract. By a subsequent letter dt. May 19, 1975 the respondent 1. through his lawyer. informed the appellants’ lawyer that the suit property had already been sold by the respondent 1 to the respondents 2 and 3. The appellants asserted that the respondent 1 could not have legally sold the property to the other two respondents in view of the contract earlier entered into by him with them. They further asserted that the purchase of the suit property by the respondents 2 and 3 was not legal and valid as they were purchasers in good faith for consideration and as they had full knowledge of the subsisting agreement between them (the appellants) and the respondent 1 and the respondents 2 and 3 contested the suit by filing separate written statements. The respondent 1 contended that he was always ready and willing to perform his part of the contract and offered to give inspection of all original title deeds relating to the suit premises and kept the same ready for the purpose but neither the appellants nor their Advocate nor anybody else on their behalf ever called for such inspection. Under such circumstances by a letter dt. Mar. 29, 1975 he called upon the appellants to complete the purchase within 7 days and gave notice that if they failed to do so the agreement would stand cancelled, with effect from April 6. 1975. The respondent 1 next contended that as the appellants failed to comply with the terms of the said letter he cancelled the agreement and sold the suit property to the other two respondents. The respondent No. 1 asserted that the appellants were not even entitled to recover the amount of Rs. 7,000/- as claimed. The main defence of the other two respondents was that they were bona fide purchasers for value without notice of the agreement between the appellants and the respondent 1.
3. On consideration of the evidence, both documentary and oral, adduced during trial the learned trial Court held that the respondent 1 was fully justified in cancelling the agreement and that it could not be said that the respondents purchased the property with knowledge of the subsisting agreement between the appellants and the respondents 1 It accordingly rejected the prayer of the appellants for a decree for specific performance of contract but allowed the alternative prayer of the appellants for recovery of the sum of Rs. 7,000/- paid against the agreement. Hence this appeal.
4. Mr. Ghose, the learned Advocate appearing for the appellants submitted that the evidence on record clearly established that by not handing over the documents of title in terms of Clause 3 of the agreement the respondent 1 failed to perform his part of the contract and consequently the appellants were entitled to claim specific performance of the contract. Mr. Ghose next submitted that the evidence also established that the other two respondents were aware of the subsisting agreement between the appellants and the respondent 1 and as such the said contract was enforceable against those respondents under Section 19 of the Specific Relief Act, 1963 (‘Act’ for short). Mr. Dasgupta, the learned Advocate appearing for the respondent 1 on the other hand submitted that the correspondences between the parties clearly proved that the appellants were not willing to purchase the property and as such the respondent 1 was legally entitled to cancel the agreement and to sell the property to the other two respondents. Mr. Chatterjee, appearing for the respondents 2 and 3 supported the above contention of Mr. Dasgupta and further contended that having regard to the fact that the respondents 2 and 3 purchased the property in good faith at a point of time when the contract had already been cancelled. Section 19 of the Act had no manner of application to the instant case. 5. To appreciate the respective contentions of the parties it will be profitable at this stage to refer to Clause 3 of the agreement which reads as under :
“The Vendor shall simultaneously with the execution of these presents deliver to the said Advocate for the purchasers Sri Prafulla Kumar Chowdhury, all certified copies of all documents of title and papers relating to the said property in their possession or power and necessary for the purpose of making out a marketable title thereto. The Vendor agrees and undertakes to make out a marketable title to the said property at his own costs.”
While, according to the appellants the respondent 1 failed to comply with his obligation under the above clause, according to the respondent 1, the appellants never asked for the documents and did not express their intention to exercise their right thereunder even after receipt of the letter dt. Mar. 29, 1975 sent on his behalf. To support their contention in this regard the appellants examined their father Pran Krishna Bhattacharjee (P.W. 1) and Prafulla Kumar Chowdhury (P.W. 2) the lawyer who drafted the agreement in question. P.W. 1 deposed that the respondent 1 did not deliver any document or certified copy at the time of execution of the agreement (Ext. 1) nor did he deliver the same when he went to his residence and asked for the same stating that without these they were unable to proceed into the matter further. He further deposed that Prafulla Babu (P.W. 2) was present when the respondent 1 signed the agreement. According to P.W. 1 even in March, 1975 the respondent 1 promised to send the documents. In cross-examination he stated that he made verbal demands of documents from the respondent 1 and thereafter through his Solicitor but no written demand was made for the documents by him or Prafulla Babu. He denied the suggestion that Prafulla Babu was not present at the time of execution of the document. In his deposition P.W. 2 stated that it was agreed that the documents of title of the suit property would be handed over to him but the respondent 1 did not hand over the documents. He also denied the suggestion that he was not present at the time of execution of the document.
6. The oral evidence of these two witnesses seems to suggest that the case of the appellants that the respondent 1 did not comply with the requirments of Clause 3 of the agreement by not furnishing copies of the title deeds and their documents is true, but the documentary evidence on record and the conduct of the appellants prove otherwise. If the respondent 1 had refused to hand over the documents in terms of the agreement when asked for on the very day of its execution, as deposed to by P.W. 1, it was expected of the appellants to write a letter calling upon him to comply with the said requirement. They took no such step and on the contrary, it was the respondent 1 who first addressed a letter to the appellants on Mar. 29. 1975 which reads, inter alia, as follows :
“With reference to the above quoted agreement made between you as the
Purchasers and myself as Vendor whereby
you contracted to purchase the premises
mentioned above in accordance with the
terms of the said agreement, I have to call
upon you to complete the purchase thereof
and to pay all the consideration therefor within
7 days from the date of this notice, i.e. 5th
April, 1975.
I have always been and still am ready and
willing to execute the conveyance in your
favour but you have failed and neglected to
complete such purchase in violation of the
terms of the said agreement.”
In this letter (Ext. A/3) it was also made explicitly clear that if the appellants failed to comply with the notice, the agreement for sale dated 10th January, 1975 would stand cancelled with effect from April 6, 1975 and he (the respondent 1) would be at liberty to resell the property and claim the deficiency in the price from them. Admittedly this letter was received by the appellants on April 1, 1975 but no reply was given to the said letter. If the grievance of the appellants that the respondent 1 failed to comply with Clause 3 of the agreement was a genuine one and if they were still interested in purchasing the property it was expected of them to immediately write a letter for redress of their grievance and to call upon the respondent 1 to fulfil his obligations under the contract to enable them to purchase the property. No satisfactory explanation was offered by the appellants as to why they did not take any such step which was expected of them or why they did not reply to the letter (Ext. A/3). In fact, there is no whisper about this letter in the plaint.
7. Mr. Ghose however contended that the respondent 1 to cover up his own failure in the matter and to forestall any pre-emptive action by the appellants for such failure wrote the letter in question as would be evident from the fact that only a week’s time — and that too from the date of issuance of the notice — was given to the appellants to act in terms of the agreement which was impossible. We are not impressed by this contention of Mr. Ghose having regard to the fact that the appellants did not send a reply satating that the deal could not be completed within such a short time.
8. The records further indicate that thereafter another letter dt. 25th April, 1975 was sent by the Solicitor of the respondent 1 to the appellants whereby the appellants were asked to take back the sum of Rs. 5,000/- lying in deposit as the agreement stood cancelled in terms of the earlier letter dt. 29-3-75. It was only after this letter (Ext. A) was received, that the appellants’ Solicitor wrote a letter to the Solicitor of the respondent 1 disclosing for the first time that the transaction could not be competed as the respondent 1 failed and neglected to deliver to their Advocate certified copies of all documents of title and papers relating to the property in spite of repeated requests and calling upon him to send all title deeds and documents to enable him (the Solicitor) to investigate into the title and to take steps for preparation of the deed of conveyance. Interestingly enough in this letter no reference was made to the letter dt. Mar. 29, 1975. This letter was replied to by the Solicitor of the respondent 1 on 13-5-75 whereby the appellants were informed that the question of sending the title deeds did not arise as the agreement dt. Jan. 10, 1975 stood cancelled with effect from April 6, 1975. Thereafter the deed of sale was executed by the respondent 1 in favour of other two respondents.
9. The documents on record, particularly the letter dated Mar. 29, 1975, unmistakably show that the respondent 1 was ready and willing to perform his part of contract and even though he called upon the appellants to complete the transaction they did not do so. The very fact that the appellants did not demand the documents even after receipt of the letter dt. Mar. 29, 1975 leads us to accept the case of the respondent 1 that they had no money with them to purchase the property and to complete the transaction thereby; and the demand for documents was raised only after the cancellation of the agreement and more than one month after the letter dt. Mar. 29, 1975 was received by them. The facts and circumstances therefore clearly prove that the respondent 1 was fully justified in cancelling the agreement. As admittedly the sale deed was executed by the respondent 1 in favour of the respondents 2 and 3 the agreement subsisting between the respondent 1 and the appellants was cancelled, the question whether the respondents 2 and 3 purchased the property in good faith and without notice of the original contract need not be delved into. In other words, as the contract between the appellants and the respondent 1 was not enforceable on the date of execution of the sale deed by the respondent 1 in favour of the respondents 2 and 3, Section 19 of the Act has no manner of application.
10. For the foregoing discussions the appeal fails and the same is hereby dismissed. There will be no order as to costs.
Satyabrata Mitra, J.
11. I agree.