Judgment

B. K. MUKHERJEA, J. : The facts giving rise to this appeal are, for the most part, uncontroverted and the dispute between the parties centres round the short point as to whether a contract for sale of land to which this litigation relates was discharged and came to an end by reason of certain supervening circumstanes which affected the performance of a material part of it.

2. To appreciate the merits of the controversy, it will be necessary togive a brief narrative of the material facts. The defendant company, which is the main respondent in this appeal, is the owner of a large tract of land situated in the vicinity of the Dhakuria Lakes within Greater Calcutta. The company started a scheme for development of this land for residential purposes which was described as Lake Colony Scheme No. 1 and in furtherance fo the scheme the entire area was divided into large number of plots for the sale which offers were invited from intending purchasers.

The company s plan of work seemed to be to enter into agreements with different purchasers for sale of these plots of land and accept from them only a small portion of the consideration money by way of earnest at the time of the agreement. The company undertook to construct the roads and drains necessary for making the lands suitable for building and residential purposes and as soon as they were completed, the purchaser would be called upon to complete the conveyance by payment of the balance of the consideration money. Be Joy Krishna Roy, who was defendant No. 2 in the suit and figures as pro forma respondent in this appeal was one of such purchasers who entered into a contract with the company for purchase of a plot of land covered by the scheme. His contract is dated the 5th of August 1940 and he paid Rs. 101 as earnest money.

In the receipt granted by the vendor for this earnest money, the terms of the agreement are thus set out :

"Received with thanks from Babu Bejoy Krishna Roy of 28, Tollygunge Circular Road, Tollygunge, the sum of Rs. 101 (Rupees one hundred and one only) as earnest money having agreed to sell to him or his nominee 5 K. more or less in plot No. 76 on 20 and 30 ft. Road in Premises No. Lake Colony Scheme No. 1, Southern Block at the average rate of Rs. 1.000 (Rupees one thousand only) per Cotta.

The conveyance must be completed within one month from the date of completion of roads on payment of the balance of the consideration money, time being deemed as the essence of the contract. In case of default this agreement will be considered as cancelled with forfeiture of earnest money.

Mokarari Mourashi

Terms of payment : - One-third to be paid at the tme of registration and the balance within six years bearing Rs. 6 per cent interest annum."

3. On November 30, 1941 the plaintiff appellant was made a nominee by the purchaser for purposes of the contract and although he brought the present suit in the character of a nominee, it has been held by the trial Judge as well as by the lower appellate court that he was really an assignee of Bejoy Krishna Roy in respect to the latter s rights under the contract. Some time before this date, there was an order passed by the Collector 24-Paraganas, on 12th of November 1941, under Rule 79 of the Defence of India Rules on the strength of which a portion of the land covered by the scheme was requisitioned for military purposes.

Another part of the land was requisitioned by the Government on 20th of December 1941, while a third order of requistion, which related to the balance of the land comprised in the scheme, was passed sometime later. In November 1943 the company addressed a letter to Bejoy Krishna Roy informing him of the requisitioning of the lands by the Government and stating inter alia that a considerable portion of the land appertaining to the scheme was taken possession of by the Government and there was no knowing how long the Government would retain possession of the same. The construction of the proposed roads and drai