A suit for specific performance is maintainable if filed within the statutory limitation period following notice of refusal, and readiness and willingness are established through the totality of the plaintiff's conduct and partial performance rather than the application of a rigid formula.

Judgment :

Sugato Majumdar, J.

This is a suit for specific performance of contract along with other prayers.

The suit was initially filed in this Court which was registered as Suit No. 137 of 1996 on 6^th June, 1996. The plaint was returned by Order dated 30^th August, 1996 for presenting the same before the appropriate Court. Therefore, the suit was presented and registered in the Court of Learned 8^th Assistant District Judge at Alipore and was numbered as Title Suit No. 91 of 1996. Subsequently, on the basis of one ALP No. 36 of 1998, this Court, in terms of Order dated 18^th February, 1999 transferred the matter to this Court in terms of Clause 13 of the Letters Patent 1865. The suit became renumbered as present.

PLAINT CASE:

a) The premises nos. 215 and 217 Netaji Subhas Chandra Bose Road, Tollygunge, Kolkata (hereinafter mentioned as the “said premises”) were owned by Shankar Lal Sarkar. The said premises are continuous to each other being amalgamated, covering a total area of 34 cottah of land with building. This is Schedule-A property.

b) The Plaintiffs carry on business jointly. The Plaintiffs are in control and management of Defendant No.3 and the Plaintiff Nos.1 and 2 are the directors thereof. The Plaintiffs through the Defendant No.3 carry on the business of real estate development.

c) The Defendant Nos.1 and 2 expressed their intention to develop the said premises which could be done only after shifting the tenants. Following several discussions it was orally agreed in the month of July 1987 between the Plaintiffs and the Defendant Nos.1 and 2 that the property would be developed. Various terms have been negotiated. On 5^th August, 1987, the following agreements were executed:

i) The agreement for development and construction of building by the Defendant No.3 was executed by and between the Defendant Nos.1 and 2 on the one hand and the Defendant No.3 on the other providing therein payment of cost of construction at the specified rate.

ii) The agreement for sale of undivided 1/4^th share of the Defendant Nos.1 and 2 in premises no. 217, Netaji Subhas Chandra Bose Road, Tollygunge, Calcutta by the Defendant Nos.1 and 2 in favour of the Plaintiff no. 1 was executed by the said parties showing consideration amount of Rs.5,98,5oo/-.

iii) The agreement for sale of undivided 1/4th share of the Defendant Nos.1 and 2 in premises no. 215, Netaji Subhas Chandra Bose Road, Tollygunge, Calcutta by the Defendant Nos.1 and 2 in favour of the Plaintiff No. 1 was executed by the said parties showing consideration amount of Rs.5,33,000/-.

iv) The agreement for sale of undivided 1/4^th share in premises no.215, Netaji Subhas Chandra Bose Road, Tollygunge, Calcutta by the Defendant Nos.1 and 2 in favour of the Plaintiff No.2 was executed by the said parties showing consideration amount of Rs.5,33,000/-.

v) The agreement for sale of undivided 1/4^th share in premises no.217, Netaji Subhas Chandra Bose Road, Tollygunge, Calcutta by the Defendant Nos.1 and 2 in favour of the Plaintiff No.2 was executed by the said parties showing consideration amount of Rs.5,98,500/-.

vi) The agreement for sale of undivided 1/4^th share in premises no.215, Netaji Subhas Chandra Bose Road, Tollygunge, Calcutta by the Defendant Nos.1 and 2 in favour of the Plaintiff No.3 was executed by the said parties showing consideration amount of Rs.5,33,000/-.

vii) The agreement for sale of undivided 1/4th share in premises no.217, Netaji Subhas Chandra Bose Road, Tollygunge, Calcutta by the Defendant Nos.1 and 2 in favour of the Plaintiff No.4 was executed by the said parties showing consideration amount of Rs.5,98,500/-.

There were six agreements for sale and one agreement for development and construction. The six agreements for sale contained identical, terms and conditions, particulars of which are given in the plaint.

d) Pursuant to the said six agreements, the Plaintiff paid earnest money to the Defendant Nos.1 and 2 as follow:

a) Rs.7,000/- was paid by the Plaintiff No. 1 to each of