JUDGMENT 1. In this suit the plaintiff claims a decree for specific performance of the agreement for purchase of premises No. 202 C, Bepin Behari Ganguly Street, Calcutta, and a decree directing the defendant to deliver all relevant title deeds relating to the said premises, alternatively an enquiry into title and a decree for specific performance of the agreement to the title if found good, decree for possession of the premises and the fixtures in terms of the agreement, decree for Rs. 875/- as damages and further damages at the rate of Rs. 250/ - per month till sale is completed and possession is delivered and certain other reliefs. 2. The facts briefly staled are as follows: the defendants Nos. 1 and 2, herein after referred to as the vendor defendants, were the owners of premises No. 202 C, Bowbazar Street. Sometime in November, 1960 they entered into an agreement for sale of the premises to the plaintiff through one Sagore Sen who acted as a broker in the transaction. The price agreed upon was Rs. 45,000/ - and was to be split up into Rs. 4s,500/- for the land and building and Rs. 1500/- for fittings like electric fans, electric motor pump and hand pump. The property was sold free from encumbrances and vacant possession was to be given with the completion of the sale. A draft agreement for sale was prepared by the plaintiff's solicitor and was sent to the vendors defendants' solicitor for approval. Alterations were made in the draft agreement by the vendor defendants' solicitor, the most material of such alterations being that the clause relating to vacant possession was struck out and in its place was substituted a clause to the effect that the vendors intend to give vacant possession. As dispute arose between the parties as to whether the draft agreement correctly recorded the terms agreed upon, it was mutually agreed that the agreement for sale would not be executed and the parties should proceed with the preparation of the conveyance without a formal agreement for sale. Thereafter the plaintiff proceeded with the preparation of the conveyance without a formal agreement for sale. Thereafter the plaintiff proceeded with the investigation of title. There was some dispute regarding the original partition deed which the vendors did not produce as it was in the custody of one Rabindra Mohan Mukherjee. Thereafter the plaintiff proceeded with the preparation of the conveyance without a formal agreement for sale. Thereafter the plaintiff proceeded with the investigation of title. There was some dispute regarding the original partition deed which the vendors did not produce as it was in the custody of one Rabindra Mohan Mukherjee. At no time did the vendors inform the purchaser that the premises were occupied by a tenant who was in default in payment of rent for more than eight months. Far from pointing this out, the vendors agreed to give vacant possession. On February 7, 1961 the plaintiff's solicitor sent the draft conveyance for approval by the vendors defendants' solicitors. In the forwarding letter it was pointed out that the draft conveyance was sent subject to two conditions, viz., vacant possession and making over of original title deeds to the purchaser. Thereafter on February 16, 1961 the purchaser's solicitor wrote to the vendors' solicitor for appointment of data and time for execution of conveyance. On February 24, 1961 the vendors defendants' solicitors repudiated the contract. Thereafter the vendor defendant entered into an agreement for sale of the premises to Hrishikesh Ganguly, the defendant No. 3 in this suit. On January 31, 1962 the vendor defendant sold and conveyed the premises to Ganguly. So far as Ganguly is concerned, the vendor defendants made no secret of the fact that the premises were in the occupation of one Barindra Nath Sen who was a tenant and who had defaulted in payment of rent for more than eight months. The vendor defendants also informed Ganguly that the plaintiff in this suit had instituted this suit and Ganguly agreed to purchase the premises subject to the result at this suit. Ganguly purchased the premises for a total sum of Rs. 36,750/-which was split up into Rs. 31,000/- for the premises and Rs. 5750/- for assignment of accumulated rent due from the tenant and also for mesne profits. 3. The case as made out in the plaint is that shortly before November, 29,1960 an oral agreement was entered into between the plaintiff and the vendor defendants through broker Sagore Sen whereby the plaintiff agreed to purchase from the vendor defendants premises No. 202 C, Bowbazar Street (now known as Bepin Behari Ganguly Street) for Rs. 43,500/-; the vendor defendants would also sell to the plaintiff the fixtures, viz. 43,500/-; the vendor defendants would also sell to the plaintiff the fixtures, viz. ceiling fans, electric pump and the hand pump at Rs. 1500/-both sales to be completed simultaneously. The sale was to be completed on or before the expiry of the month of Magh, 1367 B. S., corresponding to February 12, 1961. Vacant possession of the premises was to be delivered to the plaintiff simultaneously with the completion of the sale. A formal agreement was to be executed, incorporating the usual clauses. 4. This oral agreement, according to the plaintiff's allegations in the plaint, was recorded and/ or confirmed by three letters, viz. a letter from the plaintiff's solicitor dated November 29, 1960 and two letters from the solicitors for the vendor defendants dated November 30, 1960 and December 3, 1960. Pursuant to the agreement the plaintiff's solicitor sent to the vendor defendants' solicitor a draft agreement for sale on or about December 7, 1960. It is alleged in the plaint that between December 14, 1960 and December 19, 1960, it was agreed between the solicitors for the parties that no formal agreement for sale would be executed and that the plaintiff's solicitor would investigate the title of the vendor defendants and prepare a draft of the final deed of sale for approval by the solicitor for the vendor defendants. The plaintiff alleges that a request was made by her solicitor on or about December 21, 1960, to the solicitor for the vendor defendants, to send the documents of title on accountable receipt. The solicitor for the vendor defendants, however, sent to the plaintiff's solicitor certain papers purporting to be plain copies of the documents of title. It is alleged that in these plain copies there was reference to a plan but no copy of the plan was delivered with the papers and in the absence of such a plan the documents were not intelligible. 5. It is further alleged that on or about January 9, 1961 the solicitor for the vendor defendants gave inspection of certain documents to the plaintiff's solicitor but that inspection of the original partition deed, of which a copy had been supplied, was not given. Further, inspection was not given of the original conveyance dated May 3, 1940 or of any document prior to that date. Further, inspection was not given of the original conveyance dated May 3, 1940 or of any document prior to that date. Requisitions on title were forwarded by the plaintiff's solicitor on January, 11, 1961 and on January 25, 1961 the solicitor for the vender defendants supplied to the plaintiff's solicitor the Answer to the same. It appeared from the Answers that the title deeds of the premises were not with the vender defendants and were with one Rabindra Mohan Mukherjee of 202 D, Bowbazar Street, Calcutta, who was one of the parties to the partition deed and by arrangement between the parties the documents were kept with the said Rabindra Mohan Mukherjee. It appeared from the partition deed that there was a stipulation to the effect that the title deeds relating to the premises shall remain with Surendra Mohan Mukherjee since deceased, the father of the vendor defendants. In this deed there was an usual covenant for safe custody and production of the title deeds. It is further alleged in the plaint that the plaintiff always was and still is ready and willing to complete the purchase in accordance with the terms of the agreement. A draft conveyance was sent by the plaintiff's solicitor subject to the vendor defendants' making over the original title deeds and delivery of the vacant possession of the premises. A draft receipt for sale of the fixtures was also forwarded for approval. 6. It is further alleged that the vendor defendants wrongfully declined to' obtain a declaration from Rabindra Mohan Mukherjee that the original title deeds have been delivered to him and are kept with him by arrangement between the parties or to give indemnity against claim arising out of non delivery of the same. By letter dated February 24, 1961 the solicitor for the vendor defendants wrongfully purported to cancel the agreement. On the above allegations the plaintiff claims specific performance of the agreement, enquiry into the title of the vendor defendants to the premises and specific performance of the agreement, if the title is found to be good on such enquiry. The plaintiff further claims by way of damages Rs. 875/- being the rent which could be realised from the premises from February 12, 1961 to May 27, 1961 at Rs. The plaintiff further claims by way of damages Rs. 875/- being the rent which could be realised from the premises from February 12, 1961 to May 27, 1961 at Rs. 250 - per month, if the vendor defendants completed the sale and also further damages at the same rate until completion of sale and delivery of possession. 7. The defence of the vendor defendants is firstly that there was no agreement for sale between the parties. The letters dated November 29, 1960, November 30, 1960 and December 3, 1960 did not record or confirm any agreement between the parties and they were exchanged in course of negotiations between the parties for sale. No concluded contract was entered into between the parties. In any event there was no agreement to deliver vacant possession of the premises to the plaintiff and the letter of December 3, 1960 merely gave expression to a desire on the part of the vendor defendants to deliver vacant possession, if possible. It is denied that the draft agreement for sale was forwarded by the plaintiff's solicitor pursuant to any alleged agreement. The draft agreement for sale did not contain all the terms and conditions upon which negotiations were carried on. The said draft was returned to the plaintiff's solicitor after making alterations incorporating the terms and conditions upon which the vendor defendants offered to sell the premises. It is alleged that the said offer was never accepted by the plaintiff and therefore, there was no concluded contract between the parties. In any event, it was a condition of the agreement between the parties that there should be an agreement for sale incorporating the terms upon which the vendors transferred the premises and the parties intended to be bound only when a formal agreement had been executed. It is alleged that neither party intended to make or believe that they had made a binding agreement and in the absence of a formal agreement for sale the plaintiff is not entitled to ask for specific performance of the agreement. 8. The vendor defendants' case further is that the terms and conditions of the proposed sale were not finalised and the plaintiff through her solicitor was merely trying to prolong the negotiations unnecessarily. 8. The vendor defendants' case further is that the terms and conditions of the proposed sale were not finalised and the plaintiff through her solicitor was merely trying to prolong the negotiations unnecessarily. The vendor defendants had agreed to the title being investigated by the plaintiff's solicitor only to ascertain if the plaintiff was agreeable to accept the defendants' title so that the agreement for sale could be entered into. The plaintiff never accepted or approved the title of the vendor defendants to the premises and as such no agreement was entered into for the transfer of the premises. It is further alleged that copies of the title deeds which were in the possession of the vendor defendants were sent to the plaintiff's solicitor. The vendor defendants had duly given inspection to the plaintiff's solicitor of the certified copy of the partition deed dated May 3, 1940 and also a certified copy of the plan mentioned in the deed. It is alleged that the plaintiff was not entitled to claim inspection of the other documents mentioned in the plaint. It is denied that the plaintiff was or is ready or willing to complete the purchase of the premises. The title of the vendor defendants was never accepted and in any event the purported acceptance was a mere counter-offer and was subject to conditions on which the vendor defendants did not agree to transfer the premises to the plaintiff. The vendor defendants were not obliged to obtain any declaration from Rabindra Mohan Mukherjee or to give any indemnity as claimed. It is further claimed that the negotiations which were going on between the parties were duly cancelled by the solicitors for the vendor defendants by their letter dated February 24, 1981. The claim for enquiry or specific performance of the agreement for sale is denied and it is alleged that the plaintiff is not entitled to claim specific performance of the alleged agreement. The plaintiff's claim for damages is denied and it is alleged that such claim is not recoverable in law. 9. It is further alleged that if it is held that there was an agreement between the parties, the plaintiff is not entitled to claim specific performance as she failed to complete the purchase within February 12, 1961 which time was, according to the vendor defendants, of the essence of the alleged agreement. 9. It is further alleged that if it is held that there was an agreement between the parties, the plaintiff is not entitled to claim specific performance as she failed to complete the purchase within February 12, 1961 which time was, according to the vendor defendants, of the essence of the alleged agreement. It is claimed that the cancellation of the agreement was lawfully done, as the plaintiff failed and neglected to complete the purchase within the specified time. Secondly, vacant possession of the premises could not be made over to the plaintiff and without such vacant possession the plaintiff was not ready and willing to complete the purchase. Thirdly, it is alleged that the plaintiff did not accept at any time the vendor defendants' title to the premises and fourthly, the plaintiff had accepted the cancellation of the alleged agreement and led the vendor defendants to believe that the plaintiff accepted the cancellation. 10. By an order dated June 21, 1962 Hrishikesh Ganguly was added a party defendant to this suit. He entered appearance and filed a written statement in which it is alleged that he purchased the property in suit for Rs. 31,000/-from the vendor defendants. He also denies that there was a concluded contract between the plaintiff and the vendor defendants. He alleges that the plaintiff had full knowledge and notice of the tenancy in respect of the said premises and the impossibility of delivering vacant possession. He denies that the plaintiff was at all ready and willing to perform her part of the agreement. It is alleged that the draft agreement sent by the plaintiff's solicitor constituted a violation of the terms of the alleged agreement and or constituted a variation thereof. It is further alleged that the plaintiff and the vendor defendants intended to be bound only if and when a formal agreement for sale had been executed and no such agreement was executed between the parties. The other defences set out in the written statement are a repetition of the defence taken by the vendor defendants. On the above pleadings the following issues were raised and settled: 1. Was there any agreement between the plaintiff and the defendants Nos. 1 and 2 for the sale and purchase of the premises No. 202c, Bowbazar Street Calcutta? 2. Was the bargain between the parties enforceable without the execution of an agreement for sale? 3. On the above pleadings the following issues were raised and settled: 1. Was there any agreement between the plaintiff and the defendants Nos. 1 and 2 for the sale and purchase of the premises No. 202c, Bowbazar Street Calcutta? 2. Was the bargain between the parties enforceable without the execution of an agreement for sale? 3. Was the plaintiff always ready and willing and is still ready and willing to complete the purchase in accordance with the alleged agreement? 4. Did the defendants Nos. 1 and 2 wrongfully decline to obtain a declaration from Rabindra Mohan Mukherji regarding the original deed of partition as alleged in paragraph 13 of the plaint? 5. Did the defendants Nos, 1 and 2 wrongfully decline to give indemnity against any possible claim arising from non-delivery of the original deed of partition as alleged in paragraph 13 of the plaint? 6. Was time of the essence of the alleged agreement between the plaintiff and the defendant Nos. 1 and 2? 7. Is the plaintiff debarred from claiming specific performance in view of the allegations made in paragraph 12 of the written statement of the defendant Nos. 1 and 2? 8. Is the plaintiff entitled to damages as claimed in para. 15 of the plaint? 9. Did the plaintiff accept the cancellation of the agreement as alleged in paragraph 7 (i) of the written statement of the defendant No. 3? 10. Does the plaint disclose any cause of action? 11. To what relief, if any, is the plaintiff entitled? 11. The documentary evidence in this case, particularly the correspondence between the solicitors is of considerable importance. On November 29, 1960 the plaintiff's solicitor wrote to the solicitor for the vendors placing on record that an agreement was arrived at between the plaintiff and the vendor defendants whereby the latter agreed to sell to the plaintiff premises No. 202c, Bowbazar Street, Calcutta together with fittings and fixtures including electric pump set for Rs. 45,000/-, free from encumbrances. Vacant possession of the entire premises was to be delivered simultaneously with the completion of sale before the expiry of the month of Magh, 1367 B. S. The solicitor for the vendor defendants was requested to confirm formally. It was stated in this letter that on receipt of the confirmation, the draft agreement for sale with usual clauses would be sent for approval. It was stated in this letter that on receipt of the confirmation, the draft agreement for sale with usual clauses would be sent for approval. This letter was answered on November 30, 1960 by the solicitor for the Vendor defendants by which the offer to sell the premises was accepted subject to certain terms which were set out in the letter. The price was split up into a sum of Rs. 43,500/-for the premises and Rs. 1500/- for electric ceiling fans, electric motor pump and hand pump. In effect and in substance the agreement recorded in the letter of November 29, 1960 was confirmed. It was added that the usual clauses will be incorporated in the agreement for sale and a request was made for sending the draft agreement for sale for approval. Thus, the agreement between the parties for sale of the premises at Rs. 45,000/ -, free from encumbrances and delivery of vacant possession was confirmed and the agreement was concluded between the plaintiff and the vendor defendants. Thereafter on December 3, 1960 the vendor defendant solicitor wrote to the plaintiff's solicitor that their clients intended to give vacant possession of the premises and were working out their plan accordingly. A true construction of this letter, in my opinion is that either it was an attempt by the vendors defendants' solicitors to modify the agreement so far as vacant possession was concerned or a reaffirmation of their intention to give vacant possession. The contract between the parties was an oral contract and it was recorded and confirmed in writing by the two letters of November 29, 1960 and November 30, 1960. The terms of the contract could be varied only by an agreement between the parties and not unilaterally. 12. On December 7, 1960 the plaintiff's solicitor sent to the vendor defendants' solicitor the draft agreement for sale for approval and this draft was returned by the vendor defendants' solicitors with alterations in red ink by a letter dated December 30, 1960. Various alterations were made in the draft, the most important of which was that the clause relating to making over of vacant possession was struck out, and in its place new clauses were inserted to the effect that the vendors intended to give vacant possession and the position would be made clear in the final conveyance. Various alterations were made in the draft, the most important of which was that the clause relating to making over of vacant possession was struck out, and in its place new clauses were inserted to the effect that the vendors intended to give vacant possession and the position would be made clear in the final conveyance. The question of vacant possession is of considerable importance in this suit. The premises were let out by the vendors to one Birendra Nath Sen at a rent of Rs. 250/- per month. He was in occupation at the time when the agreement for sale between the parties was made. The tenant was a defaulter in payment of rent from March, 1960. Although at the time of the agreement the tenant was a defaulter for more than eight months the vendors defendants made no reference either to the tenancy of Birendra Nath Sen or to his default for eight months. On the contrary, the vendor defendants deliberately suppressed from the purchaser the fact that the premises were in occupation of a tenant who had defaulted in payment of rent for over eight months at the time of the agreement between the parties. 13. It is significant that inspite of the dispute between the landlord and the tenant the vendors entered into the agreement for making over vacant possession of the premises simultaneously with the completion of the sale. No doubt having realised that they had made a gross misrepresentation to the purchaser in suppressing the occupation of the premises by a tenant, who was a defaulter, the vendor defendants attempted to modify the agreement by the letter of December 3, 1960 in which it was stated that they intended to give vacant possession. It is difficult to understand why the vendor defendants entered into the agreement for making over vacant possession, knowing that they could not give vacant possession, as the premises was in occupation of a tenant who was a defaulter for over eight months. 14. In a suit for specific performance the conduct of the vendor in agreeing to give vacant possession, knowing that such vacant possession cannot be given is of considerable bearing. This question, viz. the conduct of the vendors in agreeing to give vacant possession becomes all the more important because of their subsequent conduct. 14. In a suit for specific performance the conduct of the vendor in agreeing to give vacant possession, knowing that such vacant possession cannot be given is of considerable bearing. This question, viz. the conduct of the vendors in agreeing to give vacant possession becomes all the more important because of their subsequent conduct. The vendor defendants purported to cancel the contract with the plaintiff and thereafter they not only entered into an agreement for sale with the defendant No. 3 but actually conveyed and transferred the premises to the defendant No. 3. But so far as the defendant No. 3 is concerned, the vendor defendants made a full disclosure of the tenancy of Birendra Nath Sen, and also of his default in payment of rent, and further assigned the arrears of rent to the defendant No. 3 by the conveyance. The defendant No. 3 paid Rs. 5,750/- for assignment of all the accumulated rent and mesne profits. It is surprising that the vendor defendants who had the services of a firm of solicitors at their disposal made an agreement for giving vacant possession knowing that this cannot be done. It may be that they expected to persuade the defaulting tenant to make over vacant possession at the time of the sale. But of this, there is no evidence at all. 15. The defendant No. 3 entered into the agreement knowing that this suit Ms been filed by the plaintiff for specific performance of the agreement and that the suit was pending at the time of the conveyance. In fact, it has been recited in the conveyance that the defendant No. 3 had inspected the relevant papers of this suit and the sale to the defendant No. 3 was expressly made subject to the result of this suit. The defendant No. 3 no doubt entered into the bargain in the hope of making a speculative gain out of the transaction, as the price he paid was only Rs. 31,000/- for the property. He paid a further sum of Rs. 5,750/- as consideration for assignment of the accumulated rent. 16. On December, 7, 1960 the draft agreement for sale was forwarded by the plaintiff's solicitor to the vendor defendants' solicitor and on December 13, 1960 it was returned to the former with alterations made by the vendors' solicitor. 31,000/- for the property. He paid a further sum of Rs. 5,750/- as consideration for assignment of the accumulated rent. 16. On December, 7, 1960 the draft agreement for sale was forwarded by the plaintiff's solicitor to the vendor defendants' solicitor and on December 13, 1960 it was returned to the former with alterations made by the vendors' solicitor. On December 14, 1960 the plaintiff's solicitor wrote to the vendor defendants' solicitor pointing out that the alterations made in the draft were inconsistent with the agreed terms and were an attempt to vary the terms agreed upon between the parties. He also pointed out that as agreed the purchaser was proceeding with the investigation of title without going through a formal agreement for sale and would complete the transaction within the stipulated time. On December 19, 1960 the vendors defendants' solicitor wrote to the plaintiff's solicitor that the draft could not be finalised as no document is signed in the Bengali month of Pous but they disputed that the draft agreement for sale was in any way inconsistent with the terms agreed upon between the parties. Further they agreed to the plaintiff's proceeding with the investigation of title and to her getting ready the draft of the final conveyance for approval. It was stated in this letter that the title deeds were available for inspection in their office. On December 19, 1960 the plaintiff's solicitor asked for an appointment for inspection of the title deeds and on December 22, 1960 he again wrote to the vendors defendants' solicitor that time for completion was running short and inspection could not be obtained yet. He also requested the vendors defendants' solicitor to send the documents of title on his accountable receipt on the usual undertaking. Instead, however, of sending the title deeds the vendors defendants' solicitors sent plain copies of the title deeds and offered inspection of the original. On January 4, 1961 the plaintiff's solicitor wrote to the vendors defendants' solicitor that searches had been practically completed and requisitions would be sent in course of the next week. On January 9, 1961 the plaintiff's solicitor put on record that inspection had been given to him of a certified copy of the partition deed dated May 3, 1940, original power of attorney dated August 22, 1933 and original conveyance dated October 9, 1953. On January 9, 1961 the plaintiff's solicitor put on record that inspection had been given to him of a certified copy of the partition deed dated May 3, 1940, original power of attorney dated August 22, 1933 and original conveyance dated October 9, 1953. On January 11, 1961 the plaintiff's solicitor forwarded to the vendors defendants' solicitor the Requisitions on Title. On January 25, the vendors defendants' solicitor returned the Requisitions on Title with their Answer. The requisition No. 19 and the answer thereto are important and I set out the same below: requisition No. 19. "the purchaser intends to complete the sale as soon as vacant possession is delivered. Please state when such possession will be delivered. "answer. "delivery of possession cannot prevent sale thereof. As soon as sale is completed vacant possession will be given. " 17. The above requisition and the answer can leave no room for doubt that the agreement between the parties was to give vacant possession of the premises. It is significant that even at the time of answering requisitions the vendor defendants made no reference to the occupation of the premises by a tenant who was a defaulter. On the contrary, the Answer assured vacant possession to the plaintiff at the time of completion of the sale. If the tenant was on friendly term with the vendor defendants, the promise regarding vacant possession would have been quite consistent with the position. But there was a dispute going on between the vendor defendants and the tenant and the latter was a defaulter for more than eight months. The suppression on the part of the vendors defendants of all information regarding occupation of the premises by the tenant is deliberate. 18. Referring to the Answer to the Requisitions the plaintiffs' solicitor wrote to the vendors defendants' solicitor on January 28, 1961 enquiring if the vendor defendants could procure a declaration from Rabindra Mohan Mukherjee, with whom the original partition deed was kept, that the said deed was kept with him for convenience of parties. Alternatively the plaintiff asked for an Indemnity against possible claim arising from non-delivery of the title deeds. Finally the plaintiff's solicitor asked for an appointment of a date for completion of sale subject to delivery of possession and also subject to either a declaration from Rabindra Mohan Mukherjee as aforesaid or an Indemnity from the vendors. Alternatively the plaintiff asked for an Indemnity against possible claim arising from non-delivery of the title deeds. Finally the plaintiff's solicitor asked for an appointment of a date for completion of sale subject to delivery of possession and also subject to either a declaration from Rabindra Mohan Mukherjee as aforesaid or an Indemnity from the vendors. On February 4, 1961 the plaintiff's solicitor pointed out to the vendor defendants' solicitors that time for completion of the sale was due to expire on February 12, 1961 and, therefore, an early reply should be sent to his letter of January 28, 1961. On February 6, 1961 the vendors defendants' solicitors wrote to the plaintiff's solicitor that by arrangement between the parties the partition deed was kept with Rabindra Mohan Mukherjee who was the allotters of 202-D, Bowbazar Street. There was a letter dated February 28, 1947 from Rabindra Mohan Mukherjee acknowledging receipt of the original partition deed. The vendors defendants' solicitor offered inspection of the said letter. In paragraph 5 of the letter the vendor defendants' solicitors for the first time suggested that what had taken place between the parties so long was mere negotiation and not an agreement for sale of the premises. They also requested that the draft conveyance might be sent to them for approval and. as soon as definite progress in this respect was made, exact date of vacant possession would be communicated to the plaintiff's solicitor. Even in this letter the vendor defendants suppressed the fact of occupation of the premises by the tenant and made a representation that vacant possession would be readily available to, the plaintiff. In paragraph 7 of the letter they suggested that the negotiations might be dropped if the purchaser so desired as their clients did not feel inclined to force completion of sale on an unwilling purchaser. 19. On February 7, 1961 the plaintiff's solicitor wrote to say that simultaneously with the completion of the sale the! original title deeds must be made over to the plaintiff and vacant possession also should be given. Subject to these two conditions the draft conveyance was forwarded with the letter, for approval and return. 19. On February 7, 1961 the plaintiff's solicitor wrote to say that simultaneously with the completion of the sale the! original title deeds must be made over to the plaintiff and vacant possession also should be given. Subject to these two conditions the draft conveyance was forwarded with the letter, for approval and return. In their reply to the plaintiff's solicitor dated February 14, 1961, the vendor defendants' solicitor again described all that had taken place between the parties as negotiations and not an agreement and complained that the plaintiff had been making unnecessary demands. They further complained that instead of stating whether the plaintiff approved the title of the vendors and was prepared to complete the transaction, unnecessary correspondence was carried on the plaintiff's behalf without approving the draft conveyance which they were required to do. They demand that the plaintiff's solicitor should state within a week whether he approved the title of the vendors defendants. 20. It is strange that the vendor defendants' solicitors should raise the question of approval of title, although they knew well that the draft conveyance would not have been sent by the plaintiffs solicitor if the title was not approved by him. The plaintiff claimed delivery of the title deeds of the property and this, without a doubt, was a legitimate claim on behalf of a purchaser. A claim to the delivery of title deeds does by no means indicate that the vendors' title has been disapproved or rejected by the purchaser. It is clear that the vendor defendants were seeking an opportunity to resale from the agreement for sale on one pretext to another. On February 16, 1961 the plaintiff's solicitor again wrote to the vendors defendants' solicitor that subject to the original title deeds being made over to the plaintiff and also subject to delivery of vacant possession, the plaintiff had always been and still was ready and willing to complete the sale. He further requested the appointment of a date and time for the purpose of completion of the sale and also asked for return of the draft conveyance and the draft sale receipt duly approved. On February 22, 1961 the plaintiff's solicitor sent a reminder to the vendors defendants' solicitor for an early reply to his letter of the 16th February, 1961. On February 24, 1961 the vendor defendants' solicitors repudiated the contract for sale. On February 22, 1961 the plaintiff's solicitor sent a reminder to the vendors defendants' solicitor for an early reply to his letter of the 16th February, 1961. On February 24, 1961 the vendor defendants' solicitors repudiated the contract for sale. They, however, chose to describe the agreement for sale between the parties as negotiation which they purported to cancel. Thereafter the vendor defendants entered into an agreement with the defendant No. 3 for sale of the premises and on January 31, 1962 the conveyance was registered in favour of the defendant No. 3. 21. There is no doubt that the plaintiff was very eager to complete the sale within the stipulated time. Her solicitor repeatedly pointed out that time was running out and matters should be expedited. The parties had entered into a binding contract for the sale of the premises but the vendors defendants' solicitors chose to describe the agreement between the parties as mere negotiations. It seems that the vendor defendants having realised that it would not be possible for them to make over vacant possession of the premises, as they were bound to do under the agreement, (as dispute was going on with the tenant, who no doubt refused to oblige the vendor defendants by vacating the premises) were looking for some excuse to put an end to the contract. The vendor defendants alleged that the purchaser had not made a clear statement approving the title of the vendors and this seems to have provided the excuse they needed. Evidently it was not realised that no purchaser would send a draft conveyance for approval by the vendors unless the vendors' title to the property was approved. No doubt the plaintiff claimed possession of the title deeds to the property but this claim, as I have already pointed out, was a legitimate claim on her part. But even then it is to be noted that her solicitor had pointed out that he would be content with a declaration from Rabindra Mohan Mukherjee who had the custody of the title deeds, to the effect that the title deeds were held by him for convenience of parties, alternatively the plaintiff had demanded an Indemnity. 22. But even then it is to be noted that her solicitor had pointed out that he would be content with a declaration from Rabindra Mohan Mukherjee who had the custody of the title deeds, to the effect that the title deeds were held by him for convenience of parties, alternatively the plaintiff had demanded an Indemnity. 22. The real difficulty with the vendors defendants however, was that, having entered into an agreement for delivery of vacant possession simultaneously with the completion of the sale, they found that it would not be possible for them to persuade the tenant to make over vacant possession of the premises. The oral evidence tendered on behalf of the plaintiff substantially confirms the position as stated in the documentary evidence. The evidence of the plaintiff was taken on commission. According to her, an agreement was made with Rai Saheb Phanindra Mohan Mukherjee the defendant No. 1 for the purchase of premises No. 202c, Bowbazar Street through broker, Sagore Sen. The price was Rs. 45,000/-and was split up into Rs. 43,500 - for the house and Rs. 1500/- for the fixtures. She was and is ready and willing to purchase the house and had the means to purchase and pay the price. Vacant possession of the house was to be given with the completion of sale. The negotiations were conducted and the agreement made through broker, Sagore Sen and her solicitor. She was satisfied about the ownership of the house. She had cashed Government Promissory Notes of the face value of Rs. 25000/- thereby realising Rs. 18700/-and had also given notice to the Bank for withdrawal of Rs. 17000/ -. On being questioned if she was willing to take the property with tenant her answer was that she was prepared to take the premises with the tenant if the price was reduced. 23. Dhananjoy Ray, the husband of the plaintiff and a solicitor of this Court gave evidence in support of the plaintiff's case. It was he who carried on the negotiations before the agreement for sale and also gave necessary instructions to the plaintiff's solicitor after the agreement was entered into. According to him, the agreement was made through the broker, Sagore Sen who also arranged for inspection of the premises. The premises were inspected by him along with his wife and father-in-law. It was he who carried on the negotiations before the agreement for sale and also gave necessary instructions to the plaintiff's solicitor after the agreement was entered into. According to him, the agreement was made through the broker, Sagore Sen who also arranged for inspection of the premises. The premises were inspected by him along with his wife and father-in-law. They were satisfied on inspection of the premises about the proposal for purchase of the same. He met Rai Saheb Phanindra Mohan Mukherjee at his office where the oral agreement to purchase the premises was arrived at. According to him, the plaintiff had sufficient funds to purchase the premises. He had approved the title to the premises and only wanted to be satisfied about the proper custody of the title deeds. The vendor defendant never pointed out to him that the premises were in the occupation of tenants. He came to know about the occupation of the premises by the tenants from the conveyance executed by the vendor defendant in favour of the defendant No. 3. He had seen people occupying the premises but since the vendors told him that vacant possession would be given and there need be no worries on that account, he did not bother any further about it. In answer to question put to him in cross examination he said that there might be tenants but he did not care to make further enquiries as the agreement was to deliver vacant possession. Regarding the title deds he only wanted to be sure that they were in proper custody. He was ready to take the property and had sent the draft conveyance to the vendors solicitor subject to two conditions, namelythe title deds to be made over to the plaintiff and vacant possession to be given. But he was prepared to take the property even if title deeds were not produced and vacant possession was not given. 24. According to him, time was not of the essence of the contract. The agreement was verbal and was recorded and confirmed in letters exchanged between the solicitors. The plaintiff was quite willing to enter into a formal agreement for sale but it was the vendor defendants who did not want to do so. 24. According to him, time was not of the essence of the contract. The agreement was verbal and was recorded and confirmed in letters exchanged between the solicitors. The plaintiff was quite willing to enter into a formal agreement for sale but it was the vendor defendants who did not want to do so. In his view the case made out by the vendor defendants that mere negotiations were being carried on by the parties and there was no agreement for sale is wholly untrue because if negotiations were to be completed by February 12, 1961 how could the sale be completed on the same day? He said that negotiations between the parties ware over at the first interview with the vendor Rai Saheb Phanindra Mohan Mukherjee, when the agreement was entered into for sale of the premises. His wife was ready to purchase the premises without indemnity, declaration as to custody of title deeds or vacant possession of the premises. The oral testimony of the plaintiff and her husband is quite consistent with the statements in the correspondence between the solicitors for the parties. The plaintiff was eager to purchase the premises, she had the necessary funds in her hand, she had approved the title deeds and was ready to complete the sale. The vendor defendants had for some reasons, best known to them, withheld from the purchaser all information about the occupation of the premises by tenant. It is quite likely that the plaintiff's husband knew that the premises were in the occupation of some parties other than the vendors. It may also be that he had known about the tenancy. But the vendors had categorically assured that vacant possession would be given at the time of completion of the sale and there was no reason why the plaintiff or her husband should worry about the occupation of the premises by third parties having regard to the assurance in answer to Requisition No. 19, that vacant possession would be given with the completion of sale. I accept the evidence of both the plaintiff and her husband regarding the agreement for sale and the terms thereof. 25. On the other hand, the conduct of the vendor defendants in suppressing the occupation of the premises by tenants from the plaintiff and her husband is noteworthy. I accept the evidence of both the plaintiff and her husband regarding the agreement for sale and the terms thereof. 25. On the other hand, the conduct of the vendor defendants in suppressing the occupation of the premises by tenants from the plaintiff and her husband is noteworthy. The court in exercising its powers under the Specific Relief Act, in my view, should take note of the conduct of the parties. There was no doubt that the suppression of all information regarding tenancy was deliberate and willful. 26. The case sought to be made on behalf of the vendor defendants both in correspondence and also in the suggestions to the plaintiff's husband in cross examination, is that all that had taken place between the parties was mere negotiations for sale of the premises and that no agreement for sale of the premises was arrived at. In their letter of February 24, 1961 the solicitors for the vendor defendants purported to put an end to what they described as mere negotiations. No doubt the vendor defendants realised that the only means by which they could attempt to shake off their obligations was to treat all that had taken place as mere negotiation. They also realised that if an agreement had been concluded, they would be liable to an action for specific performance. A suggestion that the matter was in the stage of negotiations was made to the plaintiff's husband in cross-examination in question No. 385. The answer, of course, was that the witness did not agree with the suggestion. On a scrutiny of the undisputed facts, it is difficult to hold that the matter was in the stage of negotiations. The contract between the parties was oral. But this oral contract was confirmed by exchange of letters between the solicitors as I have noted in the earlier part of this judgment. This was followed by preparations and dispatch of the draft agreement for sale. This draft agreement was not executed but on December 19, 1960 the vendor's solicitor agreed that the plaintiff's solicitor should proceed with the investigation of the title and get ready the final deed of conveyance. This again was followed by dispatch of the copies of title deeds by the vendors defendants' solicitor and inspection. Thereafter Requisitions on Title were forwarded by the plaintiff's solicitor to the vendors defendants' solicitor and these Requisitions were duly answered. This again was followed by dispatch of the copies of title deeds by the vendors defendants' solicitor and inspection. Thereafter Requisitions on Title were forwarded by the plaintiff's solicitor to the vendors defendants' solicitor and these Requisitions were duly answered. In between, exchange of correspondence took place between the solicitors relating to various points arising out of the answers to the requisitions. Finally the draft deed of conveyance was forwarded by the plaintiff's solicitor to the vendors defendants' solicitors for the latter's approval. On these admitted facts I cannot accept the defendants' contention that the matter was in the stage of negotiations and no agreement for sale was arrived at between the parties. There can be no doubt that there was a concluded agreement between the parties for sale of the premises. Both parties proceeded on the footing that there was such an agreement and all the steps that had been taken by the parties or their solicitors subsequent to the letter of November 30, 1960 from the vendors defendant. ' solicitor conclusively establish that there was an agreement for sale and both parties clearly understood the position to be so, acted accordingly, and took steps for completion of the sale. 27. The broker Sagore Sen was also examined as a witness on behalf of the plaintiff. He corroborated the evidence of the plaintiff and Dhananjoy Ray regarding the terms of the agreement including the term relating to vacant possession. He accompanied the plaintiff, her father and her husband when they went to inspect the house. In cross-examination he said that the defendant No. 1 told him that the premises were occupied by the relatives of the vendor. This evidence of the broker fits in with the term in the agreement relating to vacant possession. The only person who could have controverter the statements of the broker as to occupation of the premises by relatives of the vendor defendants and the term of the agreement for vacant possession is the defendant no. 1. But he has not chosen to give evidence in the case and no explanation has been offered as to why he has not come forward to tell the court his version of the case. 1. But he has not chosen to give evidence in the case and no explanation has been offered as to why he has not come forward to tell the court his version of the case. The agreement undoubtedly was -oral between Mm and the plaintiff represented by her husband and the broker, yet he did not come forward to controvert or contradict the evidence of the plaintiff, her husband and the broker. I accept the evidence of Sagore Sen regarding the representation of the defendant No. 1 to him to the effect that the premises were in the occupation of his relatives. The defendant No. 1 and his advisers knew what evidence has been given in this case and yet he chose to keep away from the court and no explanation has been offered for his not coming forward to support his case. I shall have more to say later on regarding the effect of his not giving evidence in support of his case. 28. Hiralal Ganguly, the defendant No. 3, in his evidence stated that the premises were conveyed to him by the vendors and the consideration of Rs. 36,750/ - was made up as follows, viz., Rs. 31,000/- for the premises and Rs. 5,750/ - for arrears of rent and damages. He purchased the house as he was in great need for a house, having no house in Calcutta. The conveyance in his favour was executed on January 31, 1962. He purchased the premises knowing about the agreement between the vendor defendants and the plaintiff and also knowing that the purchaser had filed this suit for enforcement of her claims under the agreement. The conveyance was expressly made subject to the result of this suit. He admitted that the price was reduced by the vendors because of the litigation and also because of the fact that the premises were in occupation of a tenant. As 1 have mentioned earlier, the vendors who had carefully withheld all information about the occupation of the premises by tenants were very particular in furnishing all information regarding such occupation to the defendant No. 3. As 1 have mentioned earlier, the vendors who had carefully withheld all information about the occupation of the premises by tenants were very particular in furnishing all information regarding such occupation to the defendant No. 3. But it is very strange that although the defendant No. 3 was badly in need of a house for his own occupation, and he purchased this house for that purpose, the notice determining the tenancy was served only about a week before he gave evidence on March 28, 1963. He said that he waited for nearly fifteen months for giving a notice of ejectment because he was waiting for default in payment of rent by the tenant. He had to admit that the other ground of ejectment, viz., bona fide requirement for personal occupation, was available to him. He took the precarious and uncertain chance of the tenants making a default after he purchased the premises, in order to give him a notice of ejectment. It is difficult to believe that a purchaser who is badly in need of a house for his occupation, and his need was so pressing that he entered into the bargain knowing that the property was the subject-matter of litigation, would not determine the tenancy by notice on the ground of bonafide requirement for own occupation but would wait for the uncertain chance of the tenant's making a default. He had purchased the premises fully knowing that he may lose it altogether. A reduction in the price was the inducement for him to enter into the bargain. He seems to me to be a man who was in the look out for making a speculative gain by transaction in immovable properties. I am confirmed in this view as he made a similar transaction relating to a property in Baruipur. He was occupying, in course of his service career, a house belonging to a lady by the name of Surobala Dasgupta at a rent of Rs. 25/ -. Possibly he was paying a much lower rent than should have been paid and when asked if he was paying only Rs. 25/-, his answer was "that may be soa dilapidated house". He was reluctant to admit that he was paying Rs. 25/ - only for the house and then to justify the payment of a small rent added that the house was dilapidated. 25/-, his answer was "that may be soa dilapidated house". He was reluctant to admit that he was paying Rs. 25/ - only for the house and then to justify the payment of a small rent added that the house was dilapidated. He purchased the house from Surobala and her sister, who were the owners, through their constituted attorney for a sum of Rs. 8,000/ -. Thereafter a suit was filed against him by a nephew of the owners, for setting aside the sale and the charge against him was that he had purchased the house in collusion with the constituted attorney and a fraud was perpetrated by him and also that no consideration was paid. In the trial court the suit was dismissed and an appeal was preferred against the decree of dismissal. The appeal was settled by him by payment of a further sum of Rs. 10,000/ -. It seems to me, therefore, that the defendant No. 3 relying upon his experience in the judicial service, was quite eager to go in for properties with imperfect and doubtful titles, and make a speculative gain in the transaction. It is hard to have any sympathy for him for the predicament in which he has willfully placed himself. He realised that he stood to lose nothing by entering into the bargain. If this suit is dismissed he would get the property at much lower than the market price and if it was decreed he would get back the money he had invested. He was so eager to purchase the property that he did not even properly inspect the title deeds. He was taken to Rabindra Mohan Mukherjee who said that the original deed of partition was in the custody of the latter but he did not ask for production of the original Deed. (Ganguly Qs. 197-204. 29. Rai Saheb Phanindra Mohan Mukherjee, the defendant No. 1 in this suit did not come forward to give evidence in support of the case that has been made in his written statement. No doubt, as I have pointed out earlier, the agreement for sale was oral, the terms were settled at a meeting with him and these terms were subsequently recorded in correspondence between the solicitors. He was the most material witness with regard to the agreement. No doubt, as I have pointed out earlier, the agreement for sale was oral, the terms were settled at a meeting with him and these terms were subsequently recorded in correspondence between the solicitors. He was the most material witness with regard to the agreement. He alone could have controverter or contradicted the testimony of the plaintiff, her husband and the broker. But he has willfully kept away from the court and no explanation has been offered as to why he did not give evidence. There were important questions of fact on which he alone could have thrown light by his testimony, namely whether there was an agreement between the parties to give vacant possession, whether he had informed the plaintiff through her solicitor or her husband about occupation of the premises by tenants and whether he had told the broker about occupation by relatives. 30. The effect of a party not giving evidence in support of the case made by him in the pleadings may be fatal as was pointed out by the Privy Council more than once. Reference was not made to these cases at the Bar. But it seems to me that a reference to these cases is very useful in finding out the effect of a party not giving evidence. In Gurbaksh Singh v. Gurdial Singh (1) A. I. R. 1927 P. C. 230 Lord Shaw after referring to the fact that a material witness who was present in Court did not go to the witness box pointed out at page 233 of the report as follows: "notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which the counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's own witness. This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranjilal (2) calling it "a vicious practice, unworthy of a high-toned or reputable system of advocacy". The present case, however, is a pointed instance of the evils which flow from such a practice. This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranjilal (2) calling it "a vicious practice, unworthy of a high-toned or reputable system of advocacy". The present case, however, is a pointed instance of the evils which flow from such a practice. Bhagwan's case had been the subject of prolonged investigation in the Revenue courts and had been pronounced by them a bogus case. She had appeared and told the story there and it had not been believed. She was, however, also present in this Civil Suit, the issue in which was the legitimacy of the boy that she was putting forward as a jaigir of the estate. Her non-appearance in answer to the challenge, that is to say, to disclose the actual fact as to her condition shortly after her husband Jawala's death, her disappearance into a foreign state, and all the other circumstances mentioned had been established. If her story were, notwithstanding all this, a true story, it was her bounden duty to give evidence in the suit telling the whole facts in support of her and her alleged son's case ; but she did not. If under advice she did not do so, that advice was of the worst description, and worthy of the animadversion above made. But in my view her non-appearance as a witness, she being present in court, would be the strongest possible circumstance going to discredit the truth of her case". Similar observations were made by the Privy Council in the case of Durga Kunwar v. Mathura Kunwar (3) 15 C.W.N. 721, 722. Besides the court is entitled to draw the inference as provided in illustration (g) to section 114 of the Evidence Act and come to the conclusion that the evidence of the defendant No. 1 has been deliberately withheld because, if produced it would have been wholly unfavorable to him. In this view of the matter I accept the plaintiff's case regarding the agreement and all its terms. I reject the case sought to be made out by the defendants in their written statement that no agreement was arrived at between the par ties and that all that had taken place was mere negotiation for the purchase of the premises. 31. I reject the case sought to be made out by the defendants in their written statement that no agreement was arrived at between the par ties and that all that had taken place was mere negotiation for the purchase of the premises. 31. The demand made on the plaintiff's behalf for delivery of the title deeds or at least a declaration or an indemnity against loss was quite a legitimate demand. Similarly the demand for vacant possession was quite justified having regard to the agreement between the parties. There was no latches or delay on the plaintiff's part. Her solicitor had repeatedly pointed out, that time was running out and asked for appointment of a date and time for completion of the sale. She had collected the necessary funds for payment of the price and had thus done all that she was required to do under the agreement. 32. Mr. Somnath Chatterjee appearing for the defendants Nos. 1 and 2 argued that there was no concluded contract between the parties, because the letter from the vendors defendants' solicitor of December 3, 1960 shows that there was no agreement for vacant possession but merely an expression of intention on the part of the vendor defendants to give vacant possession. It is to be noted that the agreement between the parties was oral and this agreement was recorded in the letter dated November 29, 1960 from the plaintiff's solicitor. The terms set out in that letter were confirmed by the vendors defendants' solicitors by the letter of November 30, 1960. The letter dated December 3, 1960 from the vendors defendants' solicitors was merely an attempt to vary the terms. This attempted variation was not accepted by the plaintiff. That the parties agreed to give vacant possession with the completion of the sale is established by the Answer to the Requisition No. 19. The only person who could have contradicted the plaintiff's case that vacant possession was agreed to be given, is the defendant No. 1 and he did not go to the witness box to support the case that has been sought to be made out on his behalf. Nor has any explanation been given why he has not been called as a witness. For the reasons abovementioned I reject the first contention of Mr. Chatterjee that there was no agreement to give vacant possession. Nor has any explanation been given why he has not been called as a witness. For the reasons abovementioned I reject the first contention of Mr. Chatterjee that there was no agreement to give vacant possession. In this connection reference is to be made to a judgment of the Court of Appeal in this Court in Gostha Behari Sarkar Vs. Sur's Estate Ltd. (4) A. I. R. 1960 Cal. 752. In paragraph 12 of the report P. B. Mukharji, J. held: "a point is made here that in the penultimate paragraph of the letter of the 3rd January, 1946 the word "negotiation" is used to indicate that until the 3rd January, 1946, no concluded contract had been made. Whether a concluded contract has been made or not is a question to be determined in each case by a consideration of all the relevant circumstances and facts and cannot be concluded by the parties or the solicitors' description of the situation either as a contract or negotiation. " A reference should also be made to Marshall v. Berridge, (5) 19 Ch. D. 233. At page 241 of the report Jessal, M. R. held: "i admit, indeed, that where an agreement is in writing and is unambiguous, it is the duty of the court to construe it quite independently of the ideas of the parties as to what it means, but where an agreement is, as it is here, ambiguous, or capable of two constructions, I think it would be very strange indeed if a plaintiff, who had always acted on one construction, should succeed in persuading the court to grant specific performance on the footing that it ought to bear the opposite construction. " In my view, the agreement between the parties is clear and unambiguous. Attempt has been made by the vendor defendants to vary or resile from the same. Having regard to the correspondence between the parties there can be no doubt as to the terms that were agreed upon between the vendors and the purchaser. 33. Mr. Chatterjee referred to the plaint and submitted that the plaintiff himself had stated in paragraph 2 of the plaint that the contract is contained in the three letters, viz., the letters of November 29, 1960, November 30, 1960 and December 3, 1960. 33. Mr. Chatterjee referred to the plaint and submitted that the plaintiff himself had stated in paragraph 2 of the plaint that the contract is contained in the three letters, viz., the letters of November 29, 1960, November 30, 1960 and December 3, 1960. But as has been pointed out, where the contract is unambiguous, it is the duty of the court to construe it independently of the ideas of the parties, and whether such contract has been made is to be determined by reference to all the relevant circumstances, and cannot be concluded by the parties or the solicitors' description of the situation either as a contract or as negotiation. 34. I therefore hold that there was a concluded contract between the parties for sale of the premises. The next point argued by Mr. Chatterjee was that a formal agreement for sale was a condition precedent to the agreement between the parties. He referred to paragraph 2 of the plaint and urged that it was the plaintiff's case that the agreement was recorded in the three letters dated November 29, 1960 from the plaintiff's solicitor and two letters dated November 30, 1960 and December 3, 1960 from the vendors' solicitor. He argued that in the letter of November 29, 1960 it was stated that a draft agreement for sale with usual clauses would be sent to the vendors' solicitor for approval and return. Referring to this clause in the letter, Mr. Chatterjee argued that the agreement for sale was subject to a formal agreement being executed by the parties. As I have noticed earlier the draft agreement was duly sent by the plaintiff's solicitor to the vendors defendants' solicitor, in which alterations were made by the latter. After some correspondence between the solicitors, the vendor defendants' solicitors wrote on December 19, 1960 to the plaintiff's solicitor agreeing to the plaintiff's solicitor's proceeding with the investigation of title to the premises and getting ready the draft of a final deed of sale. Assuming, therefore, that the agreement between the parties was subject to a condition, namely the execution of a formal agreement of sale, there was no doubt that the parties subsequently agreed to dispense with the execution of such a formal agreement. Assuming, therefore, that the agreement between the parties was subject to a condition, namely the execution of a formal agreement of sale, there was no doubt that the parties subsequently agreed to dispense with the execution of such a formal agreement. That this was so agreed will be clear from the subsequent conduct of the parties, viz., inspection of title deeds, submission of Requisitions on Title and answering the same, and preparation and dispatch of the draft conveyance for approval. 35. In support of his argument Mr. Chatterjee referred to Rossiter v. Miller (6) (1877) 5 Ch. D. 648. In this case there was an agreement among eight persons that an estate should be conveyed to two persons who are to hold it upon trust, to divide it into lots and then sell or let the same. A plan was prepared showing the lots and on this plan conditions were printed. One of the conditions was "each purchaser will be required to sign a contract embodying the foregoing conditions and providing for the payment of a deposit at the rate of 10 p. c. on the amount of the purchase money, and for the completion of the purchase at the expiration of not exceeding two months from the date of the contract". The defendant proposed to purchase some plots and he received a letter to the effect that the proprietors had agreed to accept the defendant's offer. He purchased three plots subject to the conditions and stipulations printed on the plan. Lord Coleridge, C. J. at page 656 of the report pointed out that he disagreed with the judgment of the master of the Rolls and was of the view that the letters exchanged between the parties did not amount to a concluded contract. In the last few lines of his judgment at page 658 of the report he said as follows: "if a set of terms are agreed upon in writing, they constitute a contract, although it may be the intention of the parties that they should be put into a more formal shape ; but here a set of terms never was finally agreed to, and the defendant cannot be held to be bound". Baggallay, L. J. at page 659 of the report held: "there is a reference in the letters to the printed conditions which provide for a formal contract being signed, and this would naturally lead any person making an offer to suppose that nothing was binding until such a contract was signed, and the correspondence was only a negotiation as to the price. The defendant verbally offered 1,000 for certain plots. White, by his letter of the 21st of April, signified the proprietors' acceptance with the offer subject to the stipulations on the plan, one of which conditions provides for the signing of the formal contract, and the letters of the 22nd of April left the defendant a right to believe that the signing of a formal contract was necessary to create a binding agreement". Relying on this case Mr. Chatterjee strenuously argued that the agreement between the parties was subject to the condition precedent that a formal agreement should be executed. 36. The above mentioned case however went up in appeal to the House of Lords and the judgment of the House of Lords (6) is reported in (1878) 3 A. C. 1124. The judgment of the Court of Appeal was expressly overruled and reversed by the House of Lords and it was held that what had taken place by the correspondence constituted a complete contract between the parties, and that under such circumstances the execution of a formal deed was not necessary. At page 1137 of the report Lord Cairns, L. C. held as follows: "my Lords, I have only to say that but that I have found the learned Judges in the Court of Appeal, for whose opinion I have the greatest respect, taking a different view I should have said that a clearer and simpler case of an offer made and accepted by a correspondence consisting of no more than three letters I have seldom seen. Every term is made clear, by reference to an elaborate scheme of conditions under which sales were to be made. The offer was recognised in terms by the persons who had made it, under his hand and it is accepted with-out the possibility of doubt or cavil by the persons to whom the offer was made. Every term is made clear, by reference to an elaborate scheme of conditions under which sales were to be made. The offer was recognised in terms by the persons who had made it, under his hand and it is accepted with-out the possibility of doubt or cavil by the persons to whom the offer was made. " Later at the same page of the report the Lord Chancellor held: "my Lords, I, therefore, come to the conclusion that there is here a clearly and distinctly concluded contract with the terms expressed in this letter, subject to the observation I have yet to make upon what I call the second part of the case in reference to the use of the word 'authorised' ". The judgment of the House of Lords however was not referred to, in the arguments at the Bar. But it is clear that the law as propounded by the Court of Appeal is no longer good law. In the instant case also it will be clear from the analysis of the correspondence between the parties, that the terms of the contract, which was oral, were made perfectly clear when the same were recorded in the correspondence between the parties' solicitors, viz. the letters of November 29, 1960 and November 30, 1960. The purchaser quite clearly understood what were the terms on which she was making the purchase and the vendors equally clearly understood the terms on which they were selling the property. 37. Appearing for the plaintiff Mr. Tarun Bose referred to several cases in support of his contention that there was a concluded contract between the parties although a formal agreement for sale was not executed. The first case referred to by him is Harichand Mancharam v. Govind Luxman Gokhale, (7) 50 L. A. 25. In this case it was held that documents may upon true construction, amount to a binding contract for sale and purchase of immovable property, enforceable by specific performance, although they provide for a preparation of a contract by a lawyer. A suit was filed for specific performance of contract for sale of certain immovable property by defendant to plaintiff. Two Gujrati documents were prepared one sent by the vendor, the other by the vendee, both bearing the same date and were practically in identical terms. A suit was filed for specific performance of contract for sale of certain immovable property by defendant to plaintiff. Two Gujrati documents were prepared one sent by the vendor, the other by the vendee, both bearing the same date and were practically in identical terms. The plaintiff contended that the two documents formed a completed contract but the defendant urged that it was only a provisional arrangement subject to the preparation by a lawyer of a formal document evidencing the contract. The trial court came to the conclusion that the documents did not constitute a completed contract. It considered that the condition that the "bargain" paper in respect of the sale was to be made by a lawyer within two days was a condition to which the whole bargain was subject so that until the lawyer prepared a "bargain" paper, there was no concluded contract. The trial court dismissed the suit. In appeal the High Court came to a different conclusion. The High Court held that the two documents constituted a binding agreement and the provision relating to preparation of a "bargain" paper by a lawyer was not a condition to which the contract was subject and accordingly the High Court reversed the judgment of the trial court and decreed the suit. It was contended before the Privy Council that the fact that the 'bargain' paper was to be made within two days from the execution of the two documents and that at the making of the bargain paper the earnest money was to be paid, shows that the real effect of contract was to be found on the paper to be prepared by the lawyer. At page 30 of the report it was held: "whether an agreement is a completed 'bargain' or merely a provisional arrangement depends on the intention of the parties as deducible from the language used by the parties on the occasion when the negotiations take a complete shape. As observed by the Lord Chanceller (Lord Cranworth) in Ridgway v. Wharton, (8) [10 E. R. 1287: 27 L. J. C. 46] "the fact of a subsequent agreement duly prepared may be evidence that the previous negotiations did not amount to an agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement". At page 31 of the report it was held: "here Exhibits A and A (1) show clearly that the parties had come to a definite and complete agreement on the subject of the sale. They embodied in the documents that were exchanged the principal terms of the bargain of which they were in absolute agreement and regarding which they did not contemplate any variation or change. The reservation in respect of a formal document to be prepared by a vakil only means that it should be put into proper shape and in legal phraseology, with any subsidiary terms that the vakil might consider necessary for insertion in a formal document. " 38. The next case referred to by Mr. Bose is Shankarlal Narayandas Mundade v. New Mofussil Co. Ltd., (9) 73 I. A. 98. In this case the appellant orally offered to the liquidator of the respondent Rs. 63,000/- for a Pressing and Ginning Mill. The offer was accepted by the liquidator on the term that a specified sum should be paid as earnest, that the completion period was to be one month and there were to be other usual terms which were to be incorporated in agreements by solicitors. A draft agreement was prepared and an engrossment thereof was made ready for signature. The company alleged that the purchaser had not agreed to the terms of the draft agreement and refused to allow the purchaser to sign the engrossment alleging that the agreement was broken. The purchaser filed a suit claiming specific performance of the agreement. The trial court found that a binding oral agreement had been made. In the High Court a point was taken that it was contemplated by the parties that the agreement was not to be considered as complete until it was signed by the parties. The Privy Council held that apart from the objection that the point was taken for the first time in appeal, the facts did not support the inference that the party is entitled to be bound only when a formal agreement had been executed. On the contrary, there was ample evidence to prove that both parties intended to make and had made a binding oral agreement and that the desire and. intention to put that agreement into formal shape did not affect its validity. On the contrary, there was ample evidence to prove that both parties intended to make and had made a binding oral agreement and that the desire and. intention to put that agreement into formal shape did not affect its validity. At page 106 of the report it was held: "by the law of India such an oral contract is valid and enforceable. It was, however, natural enough that the parties should wish to have their agreement put in writing and drawn up in proper form". At page 108 it was held: "but apart from the objection that the point was taken too late, their Lordships, with all due respect for the Judges of the High Court are satisfied that it is without substance. In their Lordships' opinion, the facts do not support the inference that the parties intended to be bound only when a formal agreement had been executed. On the contrary, their Lordships consider that there was ample evidence to prove that both parties intended to make and believe that they had made, a binding oral agreement. Their desire and intention to put that agreement in formal shape does not affect its validity. " The same point was also considered in a judgment of the court of Appeal of this court in Gostha Behari Sarkar v. Sur's Estates Ltd., (4) A. I. R. 1960 Cal. 752. In this case the plaintiff entered into an agreement with the defendants to buy premises No. 168, Bowbazar Street, Calcutta, free from encumbrances and subject to the title being found good and marketable. The plaintiff's further case was that it was agreed that a formal document evidencing the agreement would be drawn up and executed between the parties. It was alleged by the plaintiff that the defendant wrongfully revoked the agreement and on the same day agreed to sell the premises to the plaintiff's trade rival. The defendant contended that there was no agreement with the plaintiff and that there were only negotiations between the parties and a concluded agreement was not arrived at. The trial court dismissed the suit on the ground that there was no concluded contract. The defendant contended that there was no agreement with the plaintiff and that there were only negotiations between the parties and a concluded agreement was not arrived at. The trial court dismissed the suit on the ground that there was no concluded contract. After referring to the facts P. B. Mukharji, J. in paragraph 41 of the report held as follows: "the second point of the respondent in support of the judgment was that this was not a concluded contract on the ground that it was subject to an agreement for sale. The essential question on this branch of law is to find out that the formal document is of such a nature that it was a very condition of that contract or whether it was merely commemorative of the evidence on the point. " In paragraph 42 of the report his Lordship held: "the law on this point is to be found in the trilogy of cases in Harichand Mancharam v. Govind Luxman Gokhale, (7) 50 I. A. 25 ; Currimbhoy and Co. Ltd. v. Greet, (10) 60 LA. 297 and Shankarlal Narayandas Mundade v. New Mofussil Co. Ltd., (9) 73 LA. 98. Harichand's case lays down the proposition that documents may upon their true construction, amount to a binding contract for sale and purchase of immovable property, enforceable by specific performance, although they provide for the preparation of a contract by a lawyer and that provision with other terms of the agreement is described in the translation of the documents as a condition". In paragraph 45 of the report it was held: "but on the authorities I have discussed above, such a kind of draft agreement for sale does not displace the contract already concluded. Such agreements for sale are very often a precursor of the actual conveyance. But if the actual sale or the contract to sell had already been concluded then this kind of agreement for sale is not such a document as to make the contract to sell itself indeterminate. It is noteworthy that what the appellant seeks to enforce in his plaint is an agreement that he has pleaded in paragraph 1 of his plaint and which I think he has proved and not an agreement according to the draft agreement for sale. It is noteworthy that what the appellant seeks to enforce in his plaint is an agreement that he has pleaded in paragraph 1 of his plaint and which I think he has proved and not an agreement according to the draft agreement for sale. These agreements for sale spoken of in the correspondence between the solicitors are ancillary and are not fundamental to the main contract to sell. " I respectfully agree with the views expressed by P. B. Mukharji, J. In the instant case the agreement for sale proposed to be executed was not by any means a condition precedent of the contract to sell the premises. On the facts it is clear that the parties had orally agreed to sell the property and the terms of the agreement were recorded in the letters as hereinbefore mentioned and the proposed agreement for sale was to be merely commemorative of the evidence on the point and nothing more. I, therefore, hold that although a formal agreement for sale was not executed by the parties there was a concluded contract between the parties and the plaintiff is entitled to ask for specific performance of the same. The absence of formal agreement for sale does not prejudice the plaintiff's claim to a decree for specific performance of the contract. The next point argued by Mr. Chatterjee was that the contract had come to an end by efflux of time and there is nothing to enforce. In other words, his argument is that time was of the essence of the contract and as the time mentioned in the agreement between the parties as recorded in the letters, had expired, the agreement for sale cannot be enforced. 39. In order to deal with this point it is necessary to refer to the agreement as recorded in the correspondence between the solicitors. 39. In order to deal with this point it is necessary to refer to the agreement as recorded in the correspondence between the solicitors. In the letter dated April 29, 1960 from the plaintiff's solicitor it is stated that the property would be sold free from encumbrances and delivery of vacant possession of the entire premises would be given simultaneously with the completion of sale before the expiry of the month of Magh, 1367 B. S. In the letter dated November 30, 1960 from the vendors defendants' solicitor to the plaintiff's solicitor it is stated that the sale would be completed on or before the expiry of the Bengali month of Magh, 1367 B. S. i. e., before 12th February, 1961. It is on this term of the agreement that the argument that time is of the essence of the contract was based. 40. Before proceeding to deal with this branch of the argument I should note that it will be clear from the correspondence that the plaintiff's solicitor was throughout eager to complete the conveyance within the specified time and had more than once pointed out that time was running out and requested expedition. On December 7, 1960 the plaintiff's solicitor sent a draft agreement for approval. On December 13, 1960 the vendors defendants' solicitor returned the draft agreement with alterations. On December 14, 1960 the plaintiff's solicitor wrote to say that his client was proceeding with investigation of title without going through formal agreement and would complete the transaction within the stipulated time. On December 19, 1960 the plaintiff's solicitor made an appointment for inspection of title deeds at the office of the vendors' solicitor. On December 22, 1960 the plaintiff's solicitor wrote to say that time for completion of transaction was running short and requested that title deeds may be sent to him on his accountable receipt. On January 6, 1961 the plaintiff's solicitor appointed the date for inspection of original title deeds. On January 11, 1961 the plaintiff's solicitor sent the Requisition on Title which were returned with the Answer by the vendors' solicitor on January 25, 1961. On February 4, 1961 the plaintiff's solicitor sent a reminder to the vendors' solicitor for an early reply to his letter of January 28, 1961 as the time appointed for completion of the sale was due to expire on February 12, 1961. On February 4, 1961 the plaintiff's solicitor sent a reminder to the vendors' solicitor for an early reply to his letter of January 28, 1961 as the time appointed for completion of the sale was due to expire on February 12, 1961. On February 7, 1961 the draft conveyance was sent by the plaintiff's solicitor to the vendors' solicitor. On February 16, 1961 the plaintiff's solicitor asked for appointment of date and time for completion of the sale. On February 22, 1961 the plaintiff's solicitor sent a reminder to Ms letter of February 16, 1961. It will be clear from the correspondence mentioned above that the plaintiff's solicitor was ready and anxious to complete the transaction within the stipulated time and there was no latches on the plaintiff's part in the matter. Mr. Chatterjee first of all referred to Tilley v. Thomas (11) (1867) 3 Ch. 61. In this case a person agreed to purchase a leasehold house and was to have possession by a certain day the vendor tendered possession but failed to show good title by the appointed day. The vendor filed a suit for specific performance of the contract. The general question of law explained by Lord Cairns, L. J. at page 67 of the report as follows: "the legal construction of the contract is, in my opinion such as I have expressed, and the construction is and must be, in equity the same as in a court of law. A court of Equity will indeed relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion or for the steps towards completion, if it can do justice between the parties, and if (as Lord Justice Turner said in Roberts v. Berry), there is nothing in the 'express stipulation between the parties the nature of the property or the surrounding circumstances', which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract". This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract". After stating the general proposition of law as above his Lordship turned to the facts of the case and stated that on the facts he had no hesitation in saying that in his opinion it was essential and known to both parties to be essential that the defendant should have by the time stipulated, possession of the house for repairs and improvement for his immediate residence and this possession was to be with a good title. It was found in this case that the plaintiff had failed to make out a good title and, therefore, had committed a breach of the contract and to enforce such a contract against the purchaser would be inequitable. On facts this case is clearly distinguishable from the instant case. In Tilley's case the vendor had failed to make out a title and clearly, therefore, the purchaser could not be forced to take a property with a bad title. But in the instant case the plaintiff had approved of the vendors' title and was ready and eager to complete the transaction within the stipulated time. This case, therefore, is of no assistance to Mr. Chatterjee's clients. On the contrary, the general proposition that a court of Equity will relieve against and enforce specific performance notwithstanding a failure to keep the dates assigned by the contract is against the contention of Mr. Chatterjee. 41. In a contract for sale of immovable property, unlike other commercial contracts, time is not of the essence of the contract unless it is expressly provided that time would be of the essence or unless the nature of the property or the surrounding circumstances make time of the essence of the contract. In the instant case neither of the conditions are satisfied. But even assuming that time was of the essence of the contract, in the facts of the case there is no reason why the court should not, to quote the words of Lord Cairns "relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract. " 42. Mr. Bose referred to Jamshed Kodaram Irani v. Burjorji Dhunjibhai, (12) 43 LA. 26. " 42. Mr. Bose referred to Jamshed Kodaram Irani v. Burjorji Dhunjibhai, (12) 43 LA. 26. In this case by an agreement in writing dated July 8, 1911 the respondent sold to the appellant land for Rs. 85,000/- of which Rs. 4,000/-was paid as deposit. The agreement provided that the balance is to be paid on completion which was to be made in two months and if the appellant did not pay within the fixed time he should forfeit the deposit and the respondent would be at liberty to resell the land. On October 6, 1911 when the appellant's Requisitions on Title had not been complied with, the respondent purported to rescind the contract and forfeit the deposit. Referring to sec. 55 of the Indian Contract Act Viscount Haldane held that the section did not lay down any principle differing from English law regarding contracts for sale of land. Equity which governs the right of the parties in cases of specific performance of contract to sell immovable property does not look to the letter but to the substance of the agreement in order to ascertain whether the parties, notwithstanding that they named specific time within which completion was to take place, really and in substance intended more than that it should' take place within a reasonable time. A passage from the judgment of Lord Cairns in Tilley v. Thomas (11), which has been referred to by me earlier in this judgment, relating to the circumstance in which equity will relieve against and enforce specific performance, although a time was mentioned for completion of the contract, has been quoted at page 32 of the report. The appellant's solicitor proceeded to investigate title and made Requisitions on October 3, 1911 more than two months after the date of the contract. The respondent did not answer the Requisitions, but on October 6, asserted a right to put an end to the contract on the ground that time was of its essence, and to forfeit the deposit as appellant failed to complete the purchase within the time fixed. It was held that the Requisitions were legitimately made if time was not of the essence of the contract. It was held that the Requisitions were legitimately made if time was not of the essence of the contract. At page 32 of the report it was held: "the special jurisdiction of the equity to disregard the letter of the contract in ascertaining what the parties to the contract are to be taken as having really and in substance intended as regards the time of its performance may be excluded by plainly expressed stipulation. But to have this effect the language of the stipulation must show that the intention was to make the rights of the parties depend on the observance of the time limits prescribed in a fashion which is unmistakable. The language will have this effect if it plainly excludes the notion that these time-limits were of merely secondary importance in the bargain and that to disregard them would be to disregard nothing that lay at is foundation. " Viscount Haldane pointed out that equity which governs the rights of the parties in cases of specific performance of contracts to sell land, looks not at the letter but at the substance of the agreement in order to ascertain whether the parties, notwithstanding, that they named specific time within which completion was to take place really, and in substance, intended more than that it should take place within a reasonable time. Then at page 33 of the report it was held: "prima facie, equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin, specific performance notwithstanding that from the point of view of a court of law the contract has not been literally performed by the plaintiff as regards the time limit specified". Applying the above principles it was held that there was nothing in the language of the agreement or in its subject-matter to displace the presumption that for the purposes of specific performance time was not of the essence of the bargain. The Privy Council laid down quite clearly the principles on which and the circumstance in which time has to be treated as of the essence of the contract. The Privy Council laid down quite clearly the principles on which and the circumstance in which time has to be treated as of the essence of the contract. Applying these principles to the instant case I hold without any hesitation, that time was not of the essence of the contract and although the date mentioned in the agreement, viz., February 12, 1961 expired, specific performance of the agreement can and should be granted by this court. But even assuming time was of the essence of the contract, I am of the view that in the facts of this case this court should enforce specific performance of the agreement, notwithstanding a failure to keep the dates mentioned in the contract. 43. The next case referred to by Mr. Bose is Arun Prokash Boral v. Tulsi Charan Bose (13) A. I. R. 1949 Cal. 510. In this case there was an agreement; for sale of immovable property. Thai plaintiff paid Rs. 501 /- as earnest money. The vendor had disclosed that the property was in the occupation of the tenant and had agreed to give vacant possession. But he failed to take steps to eject the tenant from the premises and to arrange for giving him vacant possession and thereafter he cancelled the agreement. The plaintiff filed the suit for specific performance of the agreement, alternatively for damages, enquiry into damages, enquiry as to title and refund of the deposit with interest. Time fixed on the agreement was six months and the defendant's case was that he had taken all steps for ejectment on the tenant and that as vacant possession could not be given as agreed, the agreement came to an end and therefore the defendant claimed to be entitled to cancel the contract. The facts of this case are similar to the facts of the instant case under my consideration. The plaintiff in the instant case is in a stronger position because, unlike Arun Prokash Boral's case, the vendor defendants in the instant case are guilty of suppression of the fact of occupation of the premises by a tenant who was in default in payment of rent. P. B. Mukharji, J., in delivering judgment, following the Privy Council's decision in Jamshed Kodaram v. Burjorji Dhunjibhai, (12) 43 LA. P. B. Mukharji, J., in delivering judgment, following the Privy Council's decision in Jamshed Kodaram v. Burjorji Dhunjibhai, (12) 43 LA. 26, held that specific performance of the contract should be granted although there has been a failure to keep the dates mentioned in the contract, if justice can be done between the parties and if nothing in the express stipulation of the parties, the nature of the property or the surrounding circumstances makes it inequitable to grant relief. An intention to make time of the essence of the contract must be expressed in clear language it may be inferred from what passed between the parties before but not after the contract is made. In the facts of that case, it was held that time was not of the essence of the contract and that the mere fact that the contract is to be performed within a period of six months did not make time of the essence of the contract. I respectfully agree with the views expressed by P. B. Mukharji, J. on this aspect of the law. There is nothing in the instant case to make time of the essence of the contract. The mere fact that the parties agreed that the sale was to be completed before February 12, 1961 did not make time of the essence of the contract. In fact on February 14, 1961, two days after expiry of the time fixed, the vender defendants' solicitors wrote to the plaintiff's solicitor asking him to let them know in course of the week, if he approved the title of the vender defendants. 44. In this connection reference should be made to Fry on Specific Performance of Contracts, Sixth Edn., page 503, Art. 1077, which is as follows: "in order to render time thus essential, it must be clearly and expressly stipulated, and must also have been really contemplated and intended by the parties that it shall be so it is not enough that a time is merely mentioned during which or before which something shall be done". The next point argued by Mr. Chatterjee is that the plaintiff was not entitled to claim an indemnity from the vendor defendants against loss, for not delivering the title deeds to her. This argument proceeded on the basis as if the plaintiff had made a demand for indemnity for a defective title but that is not so. The next point argued by Mr. Chatterjee is that the plaintiff was not entitled to claim an indemnity from the vendor defendants against loss, for not delivering the title deeds to her. This argument proceeded on the basis as if the plaintiff had made a demand for indemnity for a defective title but that is not so. The indemnity was claimed for not delivering the title deeds. There is no doubt that the title of the vendors to the property was approved but the plaintiff was demanding delivery and possession of the title deeds relating to the property which she was perfectly entitled to do. It is nobody's case that there was some defect in the title for which an indemnity was claimed by the purchaser from the vendors. Mr. Chatterjee referred to a passage in Fry on Specific Performance of Contracts, Sixth Ed., page 592, Art. 1281 in which it is stated that "a purchaser cannot insist on the vendor performing the contract, giving indemnity against a defect, unless the indemnity was contracted for. "Mr. Chatterjee also referred to Halsbury, 3rd Ed., Vol. 34 page 253, Art. 421. The heading of this Article is "defects of Title". The law as stated in the Article is that where the condition is framed to cover errors in the description of the property, it does not extend to defects in title, but to mis-descriptions of the property. In the last paragraph of the Article it is stated that with regard to defects in title the general rule is that the vendor will not be compelled to give nor the purchaser to take, an indemnity against the defect. 45. I cannot see what application the above propositions of law have to the facts of this case. As I said earlier, there is no question of any defect in the title of the vendors. Indeed the title was approved by the plaintiff and it is only after such approval that the draft conveyance was forwarded by the plaintiffs solicitor to the vendor defendants' solicitor. In my view, therefore, the propositions of law mentioned above and cited by Mr. Chatterjee, have no application and are of no assistance to his clients. Before, however, passing on to the next branch of the argument should note that Mr. Bose referred to sec. 55 sub-sec. In my view, therefore, the propositions of law mentioned above and cited by Mr. Chatterjee, have no application and are of no assistance to his clients. Before, however, passing on to the next branch of the argument should note that Mr. Bose referred to sec. 55 sub-sec. (1) clause (b) of the Transfer of Property Act and submitted that under that section the seller is bound to produce to the buyer title deeds which are in the seller's possession or power. Mr. Bose contended that the vendors were bound to produce the title deeds under the provisions of the said section. In my view, this provision in the Transfer of Property Act has no application in this case because production as contemplated under the above section is for examination only and then again production contemplated is only of those documents which are in the seller's possession or power. The dispute in this case is not with regard to the production for examination but with regard to possession of title deeds upon completion of the transaction. Indeed in this case the vendors had produced the title deeds in their possession or power for examination by the plaintiff's solicitor and it was only upon such examination that the vendor defendants,' title was approved. 46. The next question to be considered is whether the vendor defendants had wrongfully declined to obtain a declaration from Rabindra Mohan Mukherjee regarding the latter's possession and custody of the original Deed of Partition. In order to understand this aspect of this case reference should be made to the agreement between the parties. In the letter from the plaintiff's solicitor dated November 29, 1960 it was recorded that the agreement was for the sale of the property, free from, encumbrances. This was confirmed by the vendors defendants' solicitors in their letter of November 30, 1960. Turning now to the draft agreement for sale, which was returned by the vendor defendants' solicitor on December 13, 1960, it is to be noted that the last line of clause 1 of the draft provided for a good and marketable title being made out by the vendors. Clause 7 of the draft agreement provided that if vendors fail to make out a marketable title they shall refund the earnest money. Clause 8 again similarly provided for making out a marketable title. Clause 7 of the draft agreement provided that if vendors fail to make out a marketable title they shall refund the earnest money. Clause 8 again similarly provided for making out a marketable title. It is clear, therefore, that the vendors was bound to make out a good marketable title and the plaintiff was entitled to insist on good marketable titles being made out by the vendors. In the Requisition No. 1 the purchaser requested production of the original Deed of Partition and in the Answer thereto the vendors stated that the original Deed of Partition was kept by arrangement between the parties in 1947, with Rabindra Mohan Mukherjee, one of the parties to the partition, for convenience of parties. It appears from the Requisition No. 1c that the original Partition Deed was kept with Surendra Mohan Mukherjee and there was a covenant for production of the Deed by him. It appears from the Answer to the said requisition and also to the Requisition No. 1 that the partition deed was subsequently kept with Rabindra Mohan Mukherjee. In the above circumstances the plaintiff's solicitor requested that an explanation may be given as to why the title deeds could not be taken back from Rabindra Mohan Mukherjee and enquired if in default, the vendors were prepared to furnish an indemnity against any possible claim arising from non-delivery of the title deeds. In the letter from the vendors defendants' solicitors dated December 19, 1960 they stated that the title deeds were available at their office for inspection. This, it appears, is not a correct statement because, the original deed of partition all along remained with Rabindra Mohan Mukherjee. A similar statement was again made by the vendors defendants' solicitors in their letter of December 30, 1960, viz., that the original documents were lying with them and inspection could be had at their office. An appointment was made for inspection of the original title deeds by the plaintiff's solicitor by his letter of January 6, 1961. On January 9, 1961 the plaintiff's solicitor put on record that inspection was offered of a certified copy of the partition deed dated May 3, 1940 and of other original documents. An appointment was made for inspection of the original title deeds by the plaintiff's solicitor by his letter of January 6, 1961. On January 9, 1961 the plaintiff's solicitor put on record that inspection was offered of a certified copy of the partition deed dated May 3, 1940 and of other original documents. As the original of the deed of partition, by which the premises were allotted to the father of the vendor defendants was not forthcoming and only a certified copy of the partition deed was produced for inspection, the plaintiff's solicitor was justified in asking for an explanation regarding custody and possession of the partition deed. 47. The plaintiff's solicitor in his letter of January 28, 1961 enquired if the vendors could procure a declaration from Rabindra Mohan Mukherjee that the partition deed was kept with him by arrangement between the parties for their convenience. On February 6, 1961 the vendors defendants' solicitors wrote to the plaintiff's solicitor pointing out that the custody of the partition deed was originally with Late Surendra Mohan Mukherjee, senior most of the parties, to the partition and the father of the vendor defendants. Subsequently, by mutual arrangement the partition deed was kept with Rabindra Mohan Mukherjee. There was a communication dated February 28, 1947 from Rabindra Mohan Mukherjee acknowledging receipt of the partition deed of which inspection was offered to the plaintiff's solicitor. But the inspection of this communication from Rabindra Mohan Mukherjee was not in fact given to the plaintiff's solicitor. 48. In the above circumstances the plaintiff was quite justified in asking for an explanation regarding the custody of the original partition deed. The acknowledgment from Rabindra Mohan Mukherjee dated the 28th February, 1947 merely shows that on that date the document was received by him. But the plaintiff was entitled to demand satisfaction regarding subsequent custody and possession of the partition deed. As I have pointed out earlier, it is not a question of curing a defect in the title but it is a question of possession of the title deeds. Absence of the original title deeds, and satisfactory explanation of such absence may quite justifiably raise doubts in the purchaser's minds as to the subsequent dealings with the title deeds by the vendors. Absence of the original title deeds, and satisfactory explanation of such absence may quite justifiably raise doubts in the purchaser's minds as to the subsequent dealings with the title deeds by the vendors. There was nothing wrong, or improper on the plaintiff's part in insisting upon production of the title deeds for inspection and a declaration regarding its possession or in the alternative an indemnity against loss arising from non-delivery of title deeds. It is to be noted that before selling the property to the defendant No. 3, the latter was taken to Rabindra Mohan Mukherjee for his satisfaction regarding the custody of the partition deed. But so far as the plaintiff is concerned, she was left to guess for herself regarding; the custody and possession of the title deeds. In this connection reference was made to Williams on Vendor and Purchaser, 4th Ed., Vol. 1, page 700 in which the law on this subject is stated to [be that where ownership of land held under one title is divided, and the title deeds remain in the possession of the owner of a part, the owners of the rest of the land have an equitable right, independently of any covenant or statutory acknowledgment, to enforce production of the title deeds, in order to defend a title or effect any sale or like dispossession of their lands. The purchaser, therefore, had a right to enforce production of the title deeds for inspection but this right was not insisted upon ; the purchaser was content with much less, viz., a mere declaration from Rabindra Mohan Mukherjee that the deed of partition was in his custody but even this the vendor defendant declined to concede. As the original partition deed was not produced nor a declaration of possession obtained from Rabindra Mohan Mukherjee and no satisfactory explanation was given regarding the present custody and possession of the partition deed, there Was nothing improper in the plaintiff's demanding an indemnity against any possible claim arising from non-delivery of the title deeds to the purchaser. As purchaser of the premises, the plaintiff is entitled to protection of her title and interest in the premises. There was no justification on the part of the vendor defendants to decline to give an indemnity against loss arising to the plaintiff for non-delivery of the title deeds. As purchaser of the premises, the plaintiff is entitled to protection of her title and interest in the premises. There was no justification on the part of the vendor defendants to decline to give an indemnity against loss arising to the plaintiff for non-delivery of the title deeds. On the facts it is clear ho me that the plaintiff would have been content with a declaration from Rabindra Mohan Mukherjee that the partition deed was in his custody and the question of indemnity arose as an alternative demand. I hold, therefore, that the demand made by the plaintiff for a declaration as to the custody of the title deeds and in the alternative an indemnity against future loss was quite reasonable and justified. 49. The next question to be discussed is the readiness and willingness of tie plaintiff to complete the transaction. Mr. Chatterjee's contention is that the plaintiff was not ready and willing to complete the transaction. Referring to the evidence of the plaintiff's husband Dhananjoy Roy, Mr. Chatterjee argued that he was not ready and willing. Roy said that the conveyance was not completed as he was not satisfied about the property being free from encumbrance, and then added that the documents might have been pledged with somebody. Regarding vacant possession Roy said that he was willing to take the property with the tenant provided the value was reduced. Mr. Chatterjee further pointed out that according to Roy, the suit has been filed asking for conveyance of the property with vacant possession. Mr. Chatterjee also commented upon the evidence of Roy that he wanted inspection of the original deed of partition. There was further comment on Roy's evidence to the effect that without the original title deeds or without being satisfied about the proper custody thereof, the plaintiff was not prepared to complete the conveyance. 50. I have already pointed out that the vendor defendants' title to the premises was not in fact, rejected by the plaintiff. On the contrary, the vendor defendants' title was approved by the plaintiff's solicitor and only upon such approval, the draft conveyance was sent to the vendors defendants' solicitors for their approval. The plaintiff was justified in demanding production of the deed of partition for inspection. On the contrary, the vendor defendants' title was approved by the plaintiff's solicitor and only upon such approval, the draft conveyance was sent to the vendors defendants' solicitors for their approval. The plaintiff was justified in demanding production of the deed of partition for inspection. I have already noted that under section 55, sub-section (1) clause (b) of the Transfer of Property Act the vendors were bound to produce the title deeds for inspection by the purchaser. The conduct of the plaintiff's solicitor in demanding satisfaction of the proper custody of the partition deed is reasonable and justifiable. The plaintiff is entitled to be satisfied that an encumbrance has not been created over the property, and one method of ascertaining if an encumbrance has been created, is by demanding production of title deeds of the property. Regarding delivery of possession of the title deeds it is to be noted that normally a purchaser is entitled to delivery of possession of the title deeds on completion of the transaction. In this case, of course, the title deeds remained, by arrangement between the parties with Rabindra Mohan Mukherjee. The conduct of the plaintiff's solicitor and the evidence of her husband regarding production of title deeds, inspection of the same, the demand for a declaration as to the custody of the title deeds and in the alternative an indemnity against damages in future, is by no means evidence which support Mr. Chatterjee's contention that the plaintiff was not ready and willing to complete the sale. On the other hand, as I have noted earlier in this judgment, the plaintiff's solicitor had written time and again pointing out that time for completion of the contract was running out. The defendants' solicitors were repeatedly asked for appointment of date and time to complete the conveyance. In these letters, apart from asking for appointment for completion of the sale, the plaintiff's solicitor pointed out that his client has always been and still is ready and willing to complete the sale at once. As I have already dealt with this matter earlier it is not necessary for me to deal with the letters once again. I will only mention the dates of the letters from which the plaintiff's eagerness to complete the sale can be gathered. As I have already dealt with this matter earlier it is not necessary for me to deal with the letters once again. I will only mention the dates of the letters from which the plaintiff's eagerness to complete the sale can be gathered. These are the letters from the plaintiff's solicitor dated December 22, 1960, January 28, 1961, February 7, 1961 and February 16, 1961. In the last mentioned letter it was pointed out that the plaintiff needed the premises for her residence and would immediately occupy the same on completion of the transaction. The correspondence from the plaintiff's solicitor, therefore, clearly indicate that she was ready, willing and eager to complete the sale from the time of the agreement until February 22, 1961 which is the date of the last letter from the plaintiff's solicitor before cancellation of the contract by the vendors' solicitor on February 24. 1961. 51. The plaintiff has disclosed the Pass Book of her Savings Bank account with National and Grindlays Bank Ltd. This Pass book shows that she had a credit balance of Rs. 37,344,59 np. in January, 1961. She also gave notice to the Bank by letter dated February 2, 1961 of her intention to withdraw Rs. 17,000/ -. She had encased Government Promissory Notes of the face value of Rs. 25,000/- for Rs. 18,700/- and old and a sum of Rs. 18,716. 29 np. was credited to her account in the said Bank. In answer to question 99 put by Mr. Arun Sen, learned Counsel for the defendant No. 3, the plaintiff clearly and unequivocally stated that she was always ready and willing and is still very anxious to purchase a house. 52. Turning now to the evidence of Dhananjoy Roy, the husband of the plaintiff, it will be seen that he was ready to advance to his wife, the necessary amount, over and above the sum of Rs. 37,000/ - which she had in her Bank account. No suggestion has been made that he was not in a position to advance to his wife a sum of Rs. 8,000/- to enable her to purchase the property for Rs. 45,000/ -. I, therefore, hold that the plaintiff had the financial resources to enable her to complete the bargain and that she had promptly taken all steps necessary in order to make funds available to her for the purpose of completing the sale. 8,000/- to enable her to purchase the property for Rs. 45,000/ -. I, therefore, hold that the plaintiff had the financial resources to enable her to complete the bargain and that she had promptly taken all steps necessary in order to make funds available to her for the purpose of completing the sale. Further, her solicitor was prompt in taking every possible step that could be taken on her behalf, consistent with safety and security of her interest, for the completion of the sale. I, therefore, hold that the plaintiff was ready and willing to complete the sale from the time the agreement was entered into between the parties up to the date of filing of this suit and in course of the trial the plaintiff made it quite plain that she was at all times and still is ready, willing and eager to complete the sale. There was nothing more which could be done on her part for the purpose of completing the transaction. The next question is to what relief is the plaintiff entitled? the relevant sections of the Specific Relief Act are sections 14, 15, 16, 17 and 19. Referring to sec. 17 Mr. Chatterjee argued that as vacant possession cannot be given specific performance cannot be granted under sections 14, 15 and 15. He argued that the plaintiff is not entitled to partial performance. 53. The above argument, if accepted, would result in allowing the vendor defendants to take advantage of their own default. The vendor defendants entered into the agreement to give vacant possession and are guilty of suppression of the tenancy from the plaintiff. There is no evidence that any steps have been taken by the vendor defendants at any time, since the agreement was entered into, to obtain vacant possession of the house by ejectment of the tenant. To my mind, it is not open to Mr. Chatterjee's clients, after gross suppression of material facts, to argue that specific performance should not be granted because vacant possession cannot be given. 54. A similar question arose for consideration in Arun Prokash v. Tulsi Charan, (13) A. I. R. 1949 Cal. 510 to which reference has already been made. In that case, however, the vendors' conduct was much clearer, because he had disclosed the fact that there was a tenant. 54. A similar question arose for consideration in Arun Prokash v. Tulsi Charan, (13) A. I. R. 1949 Cal. 510 to which reference has already been made. In that case, however, the vendors' conduct was much clearer, because he had disclosed the fact that there was a tenant. In that case also it was argued that the agreement had become impossible of performance by reason of the inability of the vendor to deliver vacant possession within the specified period. The vendor, however, had taken some steps, though not all, for ejectment of the tenant by filing a suit against him. But the suit was not brought to a hearing although no written statement was filed. P. B. Mukharji, J. held that the defendant had failed and neglected to take steps for ejecting the tenant and also that he could not be allowed to take advantage of his own default. I respectfully agree with this view, Mr. Chatterjee referred to Graham v. Krishna Chandra Dey (14) 52 I. A. 90. In this case there was a contract for sale of two plots of land. The contract stated that the plots were of equal size. The vendor failed to make out a good title for one plot. The purchaser sued for specific performance or damages. He declined to take one plot only under sec. 15. It was held that specific performance could not be decreed with regard to one plot with an abatement of price, in consequence of the failure to make out a good title for the other plot. The trial court offered the plaintiff a decree for one plot on terms of sec. 15 which the plaintiff refused and thereupon the suit was dismissed. On appeal the High Court held that the case fell within sec. 16, but remanded the case to the trial court for taking evidence on abatement of price. The Privy Council set aside the judgment of the High Court and restored that of the trial court. This case is clearly distinguishable from the facts of the case under my consideration. There was a refusal by the buyer to take one of the properties on terms of section 15 and on such refusal the suit for specific performance was dismissed. This case therefore is of no assistance to Mr. Chatterjee's clients. 55. This case is clearly distinguishable from the facts of the case under my consideration. There was a refusal by the buyer to take one of the properties on terms of section 15 and on such refusal the suit for specific performance was dismissed. This case therefore is of no assistance to Mr. Chatterjee's clients. 55. In the instant' case, however, although the plaintiff has claimed damages, the learned Counsel for the plaintiff in course of his argument made a statement that his client is prepared to take the property on terms of sec. 15 if the court is of the opinion that the question of vacant possession forms a considerable portion of the contract. He relinquished all claim to further performance and all right to compensation for not obtaining vacant possession or for loss or damages. 56. The next case referred to by Mr. Chatterjee is Hiralal Lachmiram Pardeshi v. Janardan Govind Narlekar, (15) A. I. R. 1938 Bom. 134. In this case A who was owner of four plots of land agreed to sell one plot to B for Rs. 2,000/- and the latter paid Rs. 200/- as earnest money. A later agreed to sell all the four plots to P for Rs. 7,000/ -. In this agreement the prior agreement with B was referred to and the vendor alleged that P would not be affected as B had not paid the balance of the price and taken a sale deed. B filed a suit for specific performance against A and P also filed a suit for claiming the same relief or damages. In the suit filed by B a consent decree was passed providing that P should get Rs. 1600/- and execute a sale deed in B's favour. But p was unwilling to purchase the remaining three plots without compensation for A's inability to convey the other plot to him. It was held that as P had notice of B's agreement, P was bound by it and the question whether P was entitled to relief depended on the application of sections 14 to 17. But p was unwilling to purchase the remaining three plots without compensation for A's inability to convey the other plot to him. It was held that as P had notice of B's agreement, P was bound by it and the question whether P was entitled to relief depended on the application of sections 14 to 17. A by reason of the prior agreement with B was unable to carry out the whole of his agreement within the meaning of sections 14 and 15 as he had no legal title as to the plots sold to B and this plot did not bear a small proportion to the whole and, therefore, section 14 did not apply. Section 15 did not apply as P was unwilling to pay the agreed purchase price for the three plots minus the plot sold to B. Section 16 did not apply as there was only one contract for the four plots. It was held that under section 15 the plaintiff can only get specific performance if he is prepared to agree to pay the agreed purchase price for the properties minus the plot sold to B. But P expressed his unwillingness to do this. Thus case, on facts, is entirely different from the case under my consideration. The vendor had put it entirely beyond his power to convey to P the plot which he sold to B. Therefore, he could not in any event perform the whole of the contract. Secondly, P was unwilling to purchase the three plots on terms of section 15. In the instant case the vendors had a perfectly good title to the property. Thirdly, the purchaser in the instant case is willing to take the property on terms of section 15, relinquishing all claims to compensation or damages. The above case, therefore, does not help Mr. Chatterjee. The next case referred to by Mr. Chatterjee is Promotha Nath Mitra v. Gostha Behari Sen, (16) 59 I. A. 47. In this case the owner of undivided twelve annas share in property entered into an agreement for lease of the entire sixteen annas share. The plaintiff paid the selami to the owners of twelve annas share and prepared and registered a kabuliyat. But the owners of the four annas share refused to accept it. The suit was filed against both sets of owners claiming execution of a lease. The plaintiff paid the selami to the owners of twelve annas share and prepared and registered a kabuliyat. But the owners of the four annas share refused to accept it. The suit was filed against both sets of owners claiming execution of a lease. The owners of the twelve annas share contended that the transaction was conditional upon the consent of the owners of four annas share. The Privy Council held that the suit failed, as on the evidence there was no contract. But even if there was a contract specific performance could not be granted as to twelve annas share because the plaintiff had not relinquished all other claims as required by section 15. The plaintiff proceeded on the footing that the agreement was by all the owners of the property. But as the owners of the four annas share were not parties to the agreement, it was held that there was no contract at all. The plaintiff did not relinquish all claims to further performance and compensation either for the deficiency or for the loss. On these facts the Privy Council held that the suit failed. On facts this case again is clearly distinguishable from the facts under my consideration. In the first place, there was no contract as the owners of the four annas share were not parties to the agreement and in the second place, there was no relinquishment of further claims as required by section 15 This case therefore is of no assistance to Mr. Chatterjee's clients. 57. Mr. Chatterjee next referred to Ramchandra Lalbhai v. Chinubhai Lal bhai, (17) A. I. R. 1944 Bom. 76, 86. In this case the plaintiff prayed for damages in substitution of specific performance. It was held that under section 19 when the court comes to the conclusion that specific performance ought not to be granted and also that the contract is broken, the court would grant compensation to the injured party, provided he is entitled to compensation for breach. It was further held that it is not enough for a plaintiff in a suit for specific performance, merely to establish that contract is broken ; but he must also establish that he is entitled to compensation. I do not see how this proposition helps Mr. It was further held that it is not enough for a plaintiff in a suit for specific performance, merely to establish that contract is broken ; but he must also establish that he is entitled to compensation. I do not see how this proposition helps Mr. Chatterjee at all because applying section 19, it was held that if the court came to the conclusion that specific performance should not be granted, compensation should be granted, provided the plaintiff is entitled to it. This argument of Mr. Chatterjee proceeded on the footing that the claim of the plaintiff is only under section 19. Although the plaintiff's Counsel argued that section 19 applied and he was entitled to compensation under section 19, he also argued in the alternative on both sections 14 and section 15. Section 19 applies firstly to those cases where the court decides that specific performance ought not to be granted, only then the question is whether compensation should be awarded to the plaintiff for a contract which has been broken. Secondly, it applies to cases where the court decides that specific performance ought to be granted but that it is not sufficient to satisfy the justice of the case and, therefore, compensation for breach of contract should be made to the plaintiff. Chagla, J. (as he then was) in the Bombay case held that the plaintiff who is claiming compensation must establish that he is entitled to compensation and not merely that the contract is broken. This case would be attracted if the court is of the opinion that relief is to be granted under section 19. In my opinion, the appropriate section under which the plaintiff is entitled to relief in this case is section 15 and therefore, the Bombay case, in my view, does not help the vendor-defendants. 58. Mr. Chatterjee next referred to Ardeshir H. Mama v. Flora Bassoon, (18) 55 LA. 360. In this case it was held that if a plaintiff who has claimed, pursuant to section 19, specific performance of a contract and also compensation in addition or substitution, subsequently give notice abandoning claim for compensation, he cannot recover damages for breach of contract without amending the plaint, as relief under sec. 19 can be decreed only when the plaintiff is ready and willing to perform the contract and it is, therefore, still subsisting. 19 can be decreed only when the plaintiff is ready and willing to perform the contract and it is, therefore, still subsisting. The further point decided in this case is that if in a suit the court holds that specific performance should not be granted, but that there is a contract which has been broken by the defendant and, therefore, the plaintiff is entitled to compensation, it shall award him compensation accordingly. I do not see how the propositions of law laid own in this case help Mr. Chatterjee's client. In the instant case I am not of the opinion that specific performance ought not to be granted. On the contrary, in my judgment it is a case where specific performance should be decreed subject to the conditions hereinafter mentioned by me. Mr. Chatterjee also referred to Leeds Industrial Cooperative Society ltd. v. Slack (1924), A. C. 851. In this case the House of Lords was considering the special provisions of Lord Cairns' Act which was repealed, but provisions similar to which were incorporated in the Judicature Act 1873 and the Statute Law Revision Act 1898. It was held that under that under the two latter Acts the court had power to award damages in lieu of injunction when injury is threatened but has not yet been done. The power is given to award damages to the injured party either in addition to or in substitution for injunction. If damages are given in addition to injunction they are to compensate for injury which has been done and the injunction will prevent continuance or repetition. But if the damages are given in substitution for an injunction they must necessarily cover not only injury sustained but also injury that would be inflicted in future. I do not see what application this case has to the facts of the instant case. In the first place, the question under consideration was the special provisions of the English Statutes and secondly, the suit was for an injunction to restrain wrongful act and not a suit for specific performance at all. 59. The next case referred to by Mr. Chatterjee is Duncan Rutherford v. William Acton-Adams (20) (1915), A. C. 866. In this case the appellant was a purchaser of a large tract of land. 59. The next case referred to by Mr. Chatterjee is Duncan Rutherford v. William Acton-Adams (20) (1915), A. C. 866. In this case the appellant was a purchaser of a large tract of land. After taking a conveyance and entering into possession he claimed compensation for misrepresentation as to the mileage of fencing on the land. The contract was silent as to the fencing. In delivering judgment Viscount Haldane held that the court would proceed on the assumption that there was a misrepresentation by the respondent on the question of fencing. The purchaser had entered into possession and so rescission of the contract was not possible. As there was no charge of fraud, a claim for damages for deceit could not be sustained. The only remedy is compensation for deficiency in mileage of fencing. The purchaser had retained in his hands two sums to meet claims for compensation for deficiency and it was held that the vendor had valid claim to the money so retained by the purchaser and the latter cannot counter-claim for compensation. It was also held however that if the vendor was in a position to convey substantially what the purchaser had contracted to get, the court will decree specific performance with compensation for any small and immaterial deficiency, provided the vendor had not by misrepresentation disentitled himself to his remedy. The purchaser decided to take all he could get and to have proportionate abatement from purchase money. But this right applies only to a deficiency in the subject-matter in the contract to sell and it does not apply to a claim to make good a representation not in the contract but collaterally to it. In my judgment this case has got no application at all to the facts of the instant case. The whole question whether the vendor should recover the full price and the purchaser withhold part of the price on the ground of alleged misrepresentation regarding a matter namely fencing was not included in the contract to sell but was collateral to it. On the other hand, the observations of Lord Haldane that if the vendor can substantially convey the property which is the subject-matter of the contract, the court will decree specific performance with compensation for small deficiency, supports the plaintiff's contention in the instant case. 60. On the other hand, the observations of Lord Haldane that if the vendor can substantially convey the property which is the subject-matter of the contract, the court will decree specific performance with compensation for small deficiency, supports the plaintiff's contention in the instant case. 60. I will now deal with the question as to under which section of the Specific Relief Act, relief can be given to the plaintiff. Mr. Bose argued that his client claims relief under sec. 19. His argument is that in the facts of the case she is entitled to specific performance of the agreement and also to compensation for breach of contract, as the decree for specific performance, according to him, would not be sufficient to satisfy the justice of the case. In developing this argument he submitted that Barindra Nath Sen was the tenant at a rent of Rs. 250/- per month as appears from Schedule "b" to the conveyance executed by the defendants Nos. 1 and 2 in favour of the defendant No. 3. If the vendor defendants had completed the contract, as they were bound to do by the 12th February, 1961, the plaintiff would have become entitled to a sum of Rs. 250/- per month, as there is evidence before the court of rent of the premises and as the plaintiff would have derived this rental income. If the defendants Nos. 1 and 2 had duly conveyed the property to the plaintiff, it is contended that the plaintiff would have obtained rent at the rate of Rs. 250/- per month from the date when the conveyance should have been executed. On this basis this branch of the argument of Mr. Bose was that his client is entitled to relief under sec. 19. In paragraph 15 of the plaint a sum of Rs. 875/- has been claimed as damages being rent which could be realised from the premises from February 12, 1961 to May 27, 1961 and further damages at the rate of Rs. 250/ - per month until sale is completed and possession is delivered to the plaintiff. The argument for damages on the basis of sec. 19 proceeded on the footing that the vendor-defendants are guilty of suppression of the fact namely that the premises were in the occupation of the tenant and the vendor defendants should have disclosed the fact of tenancy to the plaintiff. The argument for damages on the basis of sec. 19 proceeded on the footing that the vendor-defendants are guilty of suppression of the fact namely that the premises were in the occupation of the tenant and the vendor defendants should have disclosed the fact of tenancy to the plaintiff. Instead of such disclosure, the vendor-defendants made misrepresentation to the plaintiff that vacant possession would be given at the time of completion of sale. Further, the conveyance in favour of the defendant No. 3 shows that a part of the consideration paid to the vendors was for assignment of arrears of rent and mesne profits. Mr. Bose submitted that if the court comes to the conclusion that the plaintiff is entitled to specific performance and that the vendor-defendants had wrongfully failed to complete the conveyance in their favour, compensation should be awarded to the plaintiff on the basis of the rent which was payable by the tenant. 61. The alternative argument of Mr. Bose was that if relief could not be granted under sec. 19, it should be granted under sec. 14 which deals with cases of specific performance of part of contract where part unperformed is small. Mr. Bose referred to Illustration (a) under sec. 14 and submitted that the part in respect of which specific performance cannot be granted by the court is, vacant possession of the premises. This in his submission forms a small part of the contract and, therefore, a decree for specific performance should be granted with compensation for non-delivery of vacant possession. In my judgment delivery of vacant possession of the premises, where the same are in the occupation of tenants, is not a small proportion of the contract for the sale of the premises. The statutory protection given to tenants and the limitations imposed upon the rights of the landlords in obtaining ejectment decree against tenants, necessarily make delivery of vacant possession a considerable and important portion of a contract for sale of immovable property. In my view relief under sec. 14 cannot be given to the plaintiff. 62. Turning now to section 19, it is to be seen if the plaintiff is entitled to relief under that section. Sec. 19 also deals with the question of award of compensation in addition to specific performance of the whole contract can be decreed. In my view relief under sec. 14 cannot be given to the plaintiff. 62. Turning now to section 19, it is to be seen if the plaintiff is entitled to relief under that section. Sec. 19 also deals with the question of award of compensation in addition to specific performance of the whole contract can be decreed. If in such a case the court decides that specific performance is not sufficient to satisfy the justice of the case, compensation should be awarded to the plaintiff. It also deals with the other case, viz., where in the opinion of the court specific performance ought not to be granted but a contract between the parties having been broken the court shall award compensation for the breach of contract. But what is to be noted is, that in those cases where the court is of the opinion that specific performance should be decreed and compensation also should be awarded, sec. 19 is attracted only if decree for specific performance of the whole contract can be granted. If specific performance of the whole contract cannot be decreed, section 19 has no application. The distinguishing feature of sec. 19 from sees. 14 and 15 is that whereas sec. 19 is attracted only in those cases where the decree for specific performance of the whole contract can be granted, Secs. 14 and 15 apply to cases where specific performance can be decreed only in respect of a part of the contract and for the remainder compensation is awarded. Sec. 14 applies to cases where the part which cannot be performed bears only a small proportion to the whole contract in value and admits of compensation in money. Sec. 15 applies to cases where the part unperformed forms a considerable portion of the whole contract or does not admit of compensation in money. In support of this distinguishing feature between sec. 19 and Secs. 14 and 15 Mr. Chatterjee referred to the Tagore Law Lectures on Specific Relief by S. C. Banerjee, 2nd Ed., page 426. I accept this contention of Mr. Chatterjee and reject the submissions made by Mr. Bose and I hold that the plaintiff is not entitled to relief under sec. 19 of the Specific Relief Act, inasmuch as specific performance of the whole contract cannot be granted. The premises being in the occupation of a tenant the vendors cannot give vacant possession. 63. Chatterjee and reject the submissions made by Mr. Bose and I hold that the plaintiff is not entitled to relief under sec. 19 of the Specific Relief Act, inasmuch as specific performance of the whole contract cannot be granted. The premises being in the occupation of a tenant the vendors cannot give vacant possession. 63. Mr. Chatterjee referred to Soma Sundaram Chettiar v. Chidambaram Chettiar, (21) A. I. R. 1951 Mad. 282. In this case a Division Bench of the Madras High Court held that it is neither equitable nor legal that a plaintiff in a suit for specific performance should be given damages not only in lieu of but in addition to specific performance even though the plaintiff has not prayed for such relief. It was also held that there must be allegations by the plaintiff that grant of specific performance would not satisfy justice of the case. The Madras decision, however, has no application to the instant case inasmuch as in paragraph 15 of the plaint the plaintiff has claimed damages in addition to specific performance. In the prayers of the plaint also the plaintiff has claimed both specific performance and also damages. But I have already held that the plaintiff is not entitled to specific performance and compensation either under sec. 14 or sec. 19 for reasons hereinbefore mentioned. 64. Turning now to sec. 15 it is to be seen if in the facts of this case the plaintiff is entitled to relief under that section. The first part of the section deals with cases in which a party to contract is unable to perform the whole of his part of the contract and the part which cannot be performed forms a considerable portion of the whole or does not admit of compensation in money. In such cases the party in default is not entitled to obtain specific performance. But the other party may come to court for specific performance and in such a case the court might direct the party in default to perform so much of his part of the contract as he can, provided the plaintiff relinquishes all claim to further performance and also to compensation either for the part left unperformed or for loss or damages. After making the submissions on Secs. 14 and 19 Mr. After making the submissions on Secs. 14 and 19 Mr. Bose stated that his client is entitled to relief in any event and in the alternative under sec. 15. He also made a statement on behalf of his client relinquishing all claims to further performance and also to all rights to compensation either for not obtaining vacant possession or for loss or damage suffered by his client. In my judgment sec. 15 applies to the facts of this case, as delivery of vacant possession of the premises forms a considerable part of the contract for sale for the reasons mentioned earlier in this judgment. The plaintiff is willing to take the premises with the tenant and is giving up all claims to vacant possession of the premises under the contract and also to compensation or damages. I, therefore, hold that in the facts of this case the plaintiff is entitled to specific performance of the contract on the terms mentioned in sec. 15 of the Act. 65. Similar question came up for discussion in Arun Prokash Boral v. Tulsi Charan Bose, (13) A.I.R. 1949 Cal. 510 to which reference has been made by me earlier in this judgment. In that case also there was a tenant but his occupation had been disclosed by the vendor to the purchaser. The suit was filed by the purchaser for specific performance and plaintiff's counsel stated at the trial that plaintiff was prepared to accept the property with the tenant. P. B. Mukharji, J. in paragraph 18 of the report held that the purchaser was entitled to make his election. The option in such cases is with the purchaser who is entitled to exercise such option. 66. In Kalyanpur Lime Works v. State of Behar, (22) A. I. R. 1954 S. C. 165, 170, the Supreme Court held that relinquishment under section 15 of further performance and also the claim to compensation for loss or damage can be made at any stage of the suit. In this view of the matter I hold that the plaintiff is entitled to a decree for specific performance of the agreement for sale upon relinquishment by her of her claim to vacant possession and also of her claim to compensation for loss or damages. In this view of the matter I hold that the plaintiff is entitled to a decree for specific performance of the agreement for sale upon relinquishment by her of her claim to vacant possession and also of her claim to compensation for loss or damages. My attention was drawn to Suresh Chandra Khasnobish v. The Bank of Calcutta (23) 54 C. W. N. 832 and Mahadeo Lai Kanodia v. The Administrator General of West Bengal (24) A. I. R. 1960 S. C. 936 for the propositions that a single Judge ought not to differ from earlier decision of another single Judge whatever his own views may be and also for the proposition that Judges exercising co-ordinate jurisdiction in the High Court should not overrule one another's decision. But so far as this judgment is concerned, as I have said earlier, I respectfully agree with the view expressed by P. B. Mukharji, J. in Arun Prokash Boral v. Tulsi Charan Bose, (13) A. I. R. 1949 Cal. 510. 67. There remains only the argument advanced by Mr. Arun Sen on behalf of the defendant No. 3. Portions of his argument, dealing with the question whether there was a concluded agreement and whether the plaintiff is ready and willing to complete the transaction, which are common with the argument advanced by Mr. Chatterjee, have been already dealt with by me earlier in this judgment. I now deal with other portions of his argument. Mr. Sen referred to Fry on Specific Performance, 6th Ed., pages 146 and 147, Arts. 316 and 317 for the proposition that where representation is merely of what a party intends to do, the engagement is merely of honorary nature and, therefore, not enforceable by the court. This argument was with regard to the letter of December 3, 1960 from the vendors' solicitor that the vendors intended to give vacant possession. I have already held that there was a concluded oral agreement between the parties and the terms of this agreement were recorded and confirmed by the solicitors by their letter of November 29. 1960 and November 30, 1960. The terms as recorded in the letters leave no room for doubt that the parties agreed upon vacant possession of the premises. 68. The next point argued by Mr. Sen is that the broker had no authority on behalf of either party. 1960 and November 30, 1960. The terms as recorded in the letters leave no room for doubt that the parties agreed upon vacant possession of the premises. 68. The next point argued by Mr. Sen is that the broker had no authority on behalf of either party. On the evidence of the plaintiff her husband Dhananjoy Roy and the broker Sagore Sen I have already held that an agreement was concluded between the parties. I have also held that the only party who could have controverter the evidence of the plaintiff, her husband and the broker and also the documentary evidence is the defendant No. 1 who has not come forward to give evidence. As I have already dealt with this aspect of the case it is not necessary for me to deal with the question again. Mr. Sen referred to the case of Ardeshir H. Mama v. Flora Sassoon, (18) 55 I. A. 360. This case also has been dealt with by me earlier in thus judgment and it is not necessary to deal with this once again. The next argument advanced by Mr. Sen is that the title of the vendor defendants was rejected by the plaintiff and such rejection of title is evidence of lack of readiness and willingness. I have already held that the plaintiff had not rejected the vendors defendants' title. On the contrary, the plaintiff had approved the title of the vendor defendants and it is only because of such approval that the plaintiff's solicitor sent the draft conveyance for approval by the vendors defendants' solicitors. Mr. Sen referred to the case of Sabitri Thakurani v. Mrs. F. A. Savi, (25) A. I. R. 1933 Pat. 306, 411 for the proposition that a party is not entitled to specific performance of a contract unless he shows that he has all along been and is ready and willing to perform his part of the contract. I have already held that the plaintiff was ready and willing to perform her part of the agreement from the time of conclusion of the agreement up to the time of hearing of this suit. Mr. Sen's contention on this aspect of the case, therefore, fails. Mr. Sen referred to Fry on Specific Performance, 6th Ed. I have already held that the plaintiff was ready and willing to perform her part of the agreement from the time of conclusion of the agreement up to the time of hearing of this suit. Mr. Sen's contention on this aspect of the case, therefore, fails. Mr. Sen referred to Fry on Specific Performance, 6th Ed. page 132 Art. 284 for the proposition that an acceptance of a contract to be operative must be plain, unequivocal, unconditional and without variance of any sort between it and the proposal. This aspect of the argument relates to the agreement between the parties. I have already held that there was an oral agreement which was subsequently recorded in and confirmed by the correspondence between solicitors. The terms of the agreement as recorded in the correspondence show that there was no variance between the proposal and its acceptance and also that acceptance of the proposal was unequivocal and unconditional. The issues are, therefore, answered as follows: issue No. 1. . . . . . . . . . Yes. Issue No. 2. . . . . . . . . . Yes. Issue No. 3. . . . . . . . . . Yes. Issue No. 4. . . . . . . . . . Yes. Issue No. 5. . . . . . . . . . Yes. Issue No. 6. . . . . . . . . . No. Issue No. 7. . . . . . . . . . No. Issue No. 8. . . . . . . . . . No. Issue No. 9. . . . . . . . . . The plaintiff's right to sue arose upon a breach of the contract by the vendor defendants. The cancellation of the agreement by the vendor defendants was wrongful and it is only upon acceptance of the cancellation of the contract that the plaintiff became entitled to file this suit but there was no waiver by the plaintiff of her rights arising from wrongful breach of contract by the vendor defendants. Issue No. 10. . . . . . . . . Yes. Issue No. 11. . . . . . . . . Issue No. 10. . . . . . . . . Yes. Issue No. 11. . . . . . . . . The plaintiff is entitled to a decree for specific performance of the agreement for sale of premises No. 202c, Bepin Behari Ganguly Street, calcutta upon relinquishment of her claims to vacant possession of the premises and also her claim for damages. 69. Regarding the form of the decree Mr. Bose referred to the judgment of the Division Bench of this court in Kafiladdin v. Samiraddin, (26) 34 C. W. N. 698 in which it was held that in a suit for specific performance, if the property agreed to be sold was subsequently transferred to third parties and the suit for specific performance succeeded proper decree to pass is to direct both the original contracting party and the subsequent purchaser to convey the property to the plaintiff. I am inclined to hold that the proper decree in such cases would be to direct the subsequent purchaser to convey the property and the vendors should be made confirming parties in such a conveyance. But since there is a judgment of a Division Bench, of this court on this point, the same is binding upon me. 70. There will, therefore, be a decree for specific performance of the agreement for sale of premises No. 202c, Bepin Behari Ganguly Street, Calcutta. The plaintiff will have no claim to vacant possession of the premises and to compensation or damages or further performance of the agreement against the defendants or either of them. I direct that the plaintiff should bring in the sum of Rs. 45,000/- (Rupees Forty-five thousand) and should pay the same into the court to the credit of this suit within a month from the date on which this decree is completed and filed. Within a month from the date of the deposit of the money as herein provided, I order the defendants to execute a conveyance for the aforesaid premises in favour of the plaintiff. Out of the money to be so deposited a sum of Rs. 43,500/- (Forty-three thousand five hundred) should be apportioned and appropriated for the price of the said premises and the balance of Rs. 1,500/- (One thousand and five hundred) for electric ceiling fans, electric motor pump and hand pump as mentioned in the letter dated November 30, 1960 from the vendors defendants' solicitor. 43,500/- (Forty-three thousand five hundred) should be apportioned and appropriated for the price of the said premises and the balance of Rs. 1,500/- (One thousand and five hundred) for electric ceiling fans, electric motor pump and hand pump as mentioned in the letter dated November 30, 1960 from the vendors defendants' solicitor. The defendants are ordered to execute a separate document for sale of the said electric ceiling fans, electric motor pump and hand pump. In default of the defendants' execution of the conveyance and the document for sale of electric ceiling fans, electric motor pump and hand pump, the Registrar, Original Side of this court will execute such a conveyance and a document of sale of the said movables on behalf of the defendants in favour of the plaintiff. Upon execution of the conveyance as herein provided, the defendant No. 3 will be entitled to withdraw a sum of Rs. 36,750/- (Rupees Thirty-six thousand seven hundred and fifty) out of the sum to be deposited by the plaintiff to the credit of this suit as herein provided. The defendants Nos. 1 and 2 will be entitled to withdraw the balance remaining, after payment of commission charges. If and when application for withdrawal of the money by the defendants or either of them is made notice of such application should be given by the applicants to all parties to this suit. The defendants will pay to the plaintiff costs of this suit. Certified that it is a fit case for employment of two counsel.