JUDGMENT - SHAH S.K., J.:—The plaintiffs have filed the suit for specific performance of the agreement of sale of a flat, in the alternative for refund of earnest money and for compensation.

2. Defendant No. 1 is a partnership firm of which defendants Nos. 2 to 4 are the partners. Defendant No. 5 is a subsequent purchaser for value.

3. Defendant No. 1 is a firm of builders. Their business is to build buildings and sell the flats. By an agreement dated 27th March, 1976, the plaintiffs agreed to purchase a Flat No. 304 comprising of three rooms and a kitchen and two toilets and bathrooms on the 3rd floor of the proposed building admeasuring about 970 sq. ft. built up area for a total consideration of Rs. 1,05,100/-. By way of earnest money, the plaintiffs paid to the defendants a sum of Rs. 21,000/-. Under the agreement, the next instalment of Rs. 21,000/- was agreed to be paid by the plaintiffs to the defendants by end of April, the second instalment of Rs. 21,000/- was agreed to be paid by the plaintiffs to the defendants by end of May and the last instalment of Rs. 42,100/- was agreed to be paid by the plaintiffs to the defendants at the time of getting possession of the flat. It is undisputed that none of the amounts of the instalments were paid by the plaintiffs to the defendants. Lot of correspondence ensued between the plaintiffs and the defendants. The plaintiffs had raised dispute about the marketable title. Lastly, by defendants letter dated 7th June, 1977, the defendants stated that they were unable to produce the promised documents of title and that for the said reason the defendants put an end to the said agreement. With that letter, the defendants forwarded a cheque for a sum of Rs. 21,000/- by way of refund of earnest money to the plaintiffs.

4. It is further undisputed that subsequent thereto, again lot of correspondence ensued between the plaintiffs and the defendants. The defendants did not pay heed to the plaintiffs request and ultimately sold the said flat to defendant No. 5 under an agreement dated 28th February, 1978.

5. The plaintiffs alleged that for purchase of the said flat the plaintiffs had a talk with defendants Nos. 2 and 4 who were representing the defendants. The last meeting took place on 27th March, 1976 between the plaintiffs and defendant No. 2 for finalisation of the agreement. During the said agreement, defendant No. 2 produced a printed copy of the agreement for sale and stated that the plaintiffs should pursue the same and sign the same. At that time, defendant No. 1 had agreed to acquire the said plot of land from Bipinbhai Nagindas Patel and others under an agreement for sale dated 17-7-1975. It was also mentioned that the certificate of marketability of the title was issued by M/s. Shah Sanghavi, Advocates of the defendants. It was mentioned in the printed form of agreement in Clause 2 that a copy of such certificate was annexed as Exhibit "A" to the agreement. However, the plaintiffs noticed that no such copy was annexed to the agreement which the plaintiffs executed on 27-3-1976. In the recital made in the printed agreement, there was also mention that inspection of all documents have been given by the defendants to the plaintiffs. However, in fact, no such inspection was given by the defendants to the plaintiffs, although the defendants were under an obligation to do so. When this was pointed out to the defendants, it is alleged by the plaintiffs, defendant No. 2 stated that the said agreement was similar to the other agreements entered into by the 1st defendants with other purchasers and that the plaintiffs should execute the said agreement. At that time, defendant No. 2 assured the plaintiffs that the defendants had a marketable title in respect of the said plot of land free from all encumbrances and that they would satisfy the plaintiffs about the same and that they would deliver to the plaintiffs a clear certificate of title issued by their Advocates before demanding further instal

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