A concluded contract for the sale of property exists when the parties have agreed on all the essential terms of the sale, even if they intend to embody the terms in a formal agreement.

P. B. MUKHARJI, J. : This is a plaintiffs appeal from the judgment and decree of P. C. Mallick, J. dismissing the plaintiffs suit for specific performance of an agreement to sell premises No. 168. Bowbazar Street, Calcutta, for a sum of Rs. 1,30,000/-.

2. The learned trial Judge dismissed the suit on the ground first that there was no concluded contract between the plaintiff and the defendant and secondly that the plaintiff as a purchaser was not acceptable to the defendant vendor. The appellant has attacked the judgment on both the grounds.

3. The case of the respective parties lies within a small compass. The plaintiff appellants case is that on the 4th January, 1946, an agreement was concluded in Calcutta whereby the plaintiff agreed to buy and the defendant agreed to sell premises No. 168, Bowbazar Street, Calcutta, free from encumbrance and subject to the title being found good and marketable for the price of Rs. 1,30,000/-. The appellants further case is that it was agreed that a formal document only evidencing the said agreement would be drawn up and executed between the parties. The plaintiff pleads that the defendant company wrongfully and unreasonably revoked the said agreement on the 7th January, 1946 and on the very same day agreed to sell the same premises to the appellants trade rival. The appellants case is that the property is very close to premises No. 167C, Bowbazar Street, which was purchased by the plaintiff and his brothers and was being made ready for the purpose of locating the Appellants long standing business of jewellery Messrs. M. B. Sirkar and Sons, now carried on by the plaintiff and his brothers in another site nearby. The appellant wanted to purchase the property in suit for the said business.

4. The case of the defendant company is a denial of the fact that there was any agreement on the 4th January, 1946. The defendants case is that there were only mere negotiations and that there never was any concluded agreement. The defendant admits the agreement of sale of the said premises on the 7th January 1946 with another person by the name of Kanchanlal Sirkar.

5. Neither the plaintiff nor the defendant gave evidence at the trial but their respective Solicitors, Subodh Kumar Sen and Nirmal Chandra Biswas gave evidence in Court. The petition and affidavits of the interlocutory application made in the suit for injunction have, however, been marked as exhibits in this suit. These interlocutory papers include the petition of the plaintiff and his affidavit as well as the affidavit of his Solicitor, Subodh Kumar Sen along with the affidavits of Ram Chandra Sur, one of the principal officers of the defendant company, and its Solicitor, Nirmal Chandra Biswas. Although these petition and affidavits are exhibits and must be treated as evidence in the suit, it is unfortunate that neither the plaintiff nor the defendant was called at the trial so that their statements could be verified, checked and tested by cross-examination.

6. No formal Issue had been raised at the trial and the trial court proceeded on the grounds, I have mentioned above. The main issue on which the learned Judge dismissed the suit is the issue of concluded contract. It will be necessary, therefore, to examine the respective cases of the parties on this question of concluded contract in order to determine this issue.

7. A large part of the determination of this issue must depend on the interpretation and the effect of the correspondence exhibited in the suit. The correspondence requires close examination at some length. On the 20th December, 1945, the defendants Solicitor gave a letter to a broker called Ahi Bhusan Majumdar to the following effect:

Dear Sir,

Re : 168 Bowbazar Street.

Under instructions from the owners of the above premises we hereby authorise you to negotiate for sale of the above premises at the price of Rupees One lac and Thirty thousand nett.

This letter will remain in force upto 2 P. M. of Saturday the 22nd December, 19