Calcutta High Court
Dulchand Omprakash vs Dhirendro Mullick & Ors on 9 March, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
C.S. No. 738 of 1987
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Dulchand Omprakash
Vs.
Dhirendro Mullick & Ors.
For the Plaintiff : Mr. Abhrajit Mitra, Sr. Advocate
Mr. Suman Dutta, Advocate
Mr. Satadeep Bhattacharya, Advocate
Mr. Surajit Biswas, Advocate
For the Defendant : Mr. Aniruddha Mitra, Advocate
Nos. 3, 6 & 7 Mr. Aiman Abdullah, Advocate
Mr. Ram Chandra Banerjee, Advocate
For the Defendant No. 5 : Mr. P.C. Pal Chowdhury, Advocate
Mr. D.N. Mukherjee, Advocate
Hearing concluded on : January 30, 2015
Judgment on : March 09, 2015
DEBANGSU BASAK, J.
The plaintiff seeks specific performance of an agreement dated September 1, 1982 claimed to be modified on July 30, 1984 against the defendants.
According to the plaintiff, the defendant nos. 1, 2 and 3 are the trustees of a trust known as Trust Estate Jitendro Mullick. The trustees had entered into an agreement in writing on September 1, 1982 with the defendant no. 4 for lease of premises No. 7A, Kiran Sankar Roy Road, Kolkata- 700001. The defendant no. 4 had paid the consideration reserved under the said agreement to the defendant nos. 1, 2 and 3. The defendant no. 4 had nominated the plaintiff to obtain the lease on July 30, 1984. Such nomination was accepted by the defendant nos. 1, 2 and 3. According to the plaintiff, the agreement dated September 1, 1982 was modified on July 30, 1984. The plaintiff claims that, by a letter dated July 30, 1984 the defendant nos. 1, 2 and 3 informed the plaintiff that the trustees were making an application for obtaining Income Tax Clearance Certificate. The trustees promised to execute the lease as and when such certificate was obtained. The defendant nos. 1, 2 and 3 made an application under Section 230A of the Income Tax Act, 1961 on July 30, 1984. The income tax authorities issued a certificate on October 18, 1984. According to the plaintiff, the time for execution and completion of the lease was extended from time to time by mutual consent and the last of such extension was made by a letter dated August 5, 1986. The plaintiff claims that he has paid the balance consideration to the defendant nos. 1, 2 and 3. The plaintiff alleges that that in spite of repeated demands the defendant nos. 1, 2 and 3 did not execute the lease in his favour. The plaintiff therefore seeks specific performance of the agreement dated September 1, 1982 as modified on July 30, 1984.
The defendant nos. 1 and 3 have filed a written statement. The defendant nos. 1 and 3 claim that the defendant no. 4 had procured the agreement dated September 1, 1982 by misrepresentation. The defendant nos. 1 and 3 had refunded the sum of Rs.10,000/- and had returned the cheque of Rs.20,000/-. They claim that the agreement for lease was not acted upon. The agreement according to them is unconscionable, illegal, procured by false representation and not binding upon the trust. They also claim that the agreement was duly terminated. With regard to the modification of 1984, the defendant nos. 1 and 3 claim that the same was a draft deed and was never executed by the trustees. Such draft lease according to the defendant nos. 1 and 3 has no legal validity. It was not meant to be an agreement and, therefore, could not be treated as a modification of the agreement for lease dated September 1, 1982. They claim that the 1984 draft lease was prepared by the plaintiff and handed over to one of the trustees of the trust. All the trustees of the trust did not see the draft lease and the same was not executed by the trust.
The defendant no. 5 was added as a party defendant in the suit by virtue of an Order dated March 20, 2013. Defendant nos. 6 and 7 were also added by the Order dated February 10, 2014. The defendant no. 8 was added by an Order dated July 4, 2014.
The defendant no. 5 has filed a written statement. The defendant no. 5 claims that the suit is barred by the laws limitation. He claims that there are variations between the terms and conditions of the so- called 1982 agreement and the 1984 agreement. The defendant no. 5 claims that the agreements in any event were duly terminated.
Seven issues were settled for trial by the order dated August 4, 2014. An additional issue of limitation was framed by an Order dated August 8, 2014. The eight issues therefore are as follows:-
1. Is the present suit maintainable in its present form?
2. Whether the Agreement for Lease dated 1st September, 1982 executed by and between the Defendant Nos. 1, 2 and 3 for and on behalf of "Trust Estate Jitendro Mullick" and the Defendant No. 4 binding upon the parties?
3. Whether the Plaintiff as the nominee of the Defendant No. 4 to the said Agreement entitled to enforce the said agreement against the Defendant Nos. 1, 2 and 3 and/or the said Trust?
4. Is the Plaintiff entitled to the decree of specific performance of the said agreement as claimed for in the plaint?
5. Is the Plaintiff entitled to the decree of delivery of vacant and peaceful possession of the said premises?
6. Is the Plaintiff entitled to the perpetual injunction restraining the Defendant Nos. 1, 2 and 3 and their servants and agents from dealing with, alienating or parting with possession and inducting any tenant in the said premises?
7. To what other relief or reliefs, if any, the plaintiff is entitled to as against the defendant Nos. 1, 2 and 3?
8. Is the claim of the plaintiff barred by the laws of limitation?
The plaintiff adduced evidence through one witness. The defendant nos. 1 and 3 produced one witness, while the defendant no. 5 came as his witness.
The first issue relates to the maintainability of the suit. The eighth issue is that of limitation. These two issues are taken up together for the sake of convenience.
The suit is one for specific performance of two agreements. The issue of maintainability of the suit is taken to mean whether the suit was maintainable when filed and as filed on its date of filing. Nothing has been demonstrated to show that the suit for specific performance is not maintainable on the date of its filing. The defence as to why the plaintiff is not entitled to the relief of specific performance as prayed for, in my view, does not translate to mean that the suit was not maintainable when it was filed. The plaint also discloses a cause of action in favour of the plaintiff. No law has been shown to debar the plaintiff from filing the suit. The first issue is therefore answered in the affirmative and in favour of the plaintiff.
On the eighth issue, the plaintiff is seeking specific performance of the agreement dated September 1, 1982 claimed to be modified on July 30, 1984. The plaintiff has filed the instant suit on July 30, 1987. On appraisal of the evidence, I find that, the defendants claim that he agreement dated September 1, 1982 being Exhibit 'A' was terminated by a notice dated January 15, 1986 being Exhibit '1'. The plaintiff has not accepted such termination. The plaintiff has replied to the notice of termination by a letter dated April 17, 1986 being Exhibit 'O'. The suit was filed on July 30, 1987 and is therefore well within the period of limitation as the relationship between the parties was sought to be terminated on January 15, 1986 with the plaintiff not accepting such termination.
In such circumstances, the eighth issue is answered in the negative and in favour of the plaintiff.
The second to the sixth issue are taken up together for the sake of convenience. These issues relate to the right of the plaintiff to receive specific performance of the agreement for lease dated September 1, 1982 claimed to be modified on July 30, 1984.
On these issues learned Counsel for the defendant no. 5 submits that the reliefs sought for in the plaint are barred by the laws of limitation. He submits that the plaintiff is claiming relief with regard to Exhibit 'A' which is the agreement dated September 1, 1982 in a suit filed in 1987. He also points out that the plaintiff claims that Exhibit 'A' was modified on July 30, 1984 being Exhibit 'C'. Even then a period more than three years has elapsed since July 30, 1984 till the date of filing of the suit. Learned Counsel for the defendant no. 5 submits that during the pendency of the instant suit, the plaintiff sought to negotiate with persons claiming to be trustees of the trust in 1996 with regard to the subject matter of the suit. The plaintiff has not modified the pleadings in the plaint nor has the plaintiff filed a new suit. He submits that, the plaintiff had entered into fresh negotiations in 1996 with regard to the suit property and the plaintiff had sought to enter into new documentation with regard to the lease in question. He therefore submits that the plaintiff has conduct given up Exhibits 'A' and 'C' and is therefore not entitled to any relief with regard to the Exhibits 'A' and 'C'. Learned Counsel for the defendant no. 5 also submits that, the 1996 document was not executed by the trustees of the trust. In any event there are major variations in the terms and conditions of Exhibits 'A' and 'C' with that of the 1996 document. He points out that the liability of payment of corporation tax, the amount of rent and the area of tenants in the two sets of agreement are different. These are substantial variations of the essential terms and conditions. Therefore, the plaintiff having varied the essential terms of the contract subsequent to the filing of the suit with regard to the Exhibits 'A' and 'C', the plaintiff is not entitled to the relief of specific performance with regard to Exhibits 'A' and 'C'.
Learned Counsel for the defendant no. 5 submits that, although defendant no. 5 was not a trustee for the period 1982-1984, he was asked to handle the affairs of the trust in 1984 by a power of attorney. The defendant no. 5 has no knowledge of Exhibits 'A' and 'C'. He submits that Exhibits 'C' was not executed by the trustees. He points out that the defendant nos. 3, 6 and 7 also agree that Exhibit 'C' was not executed in 1984. He points out that Exhibit 'C' is undated. It is the plaintiff's inference that Exhibit 'C' is dated July 30, 1984 although Exhibit 'C' does not bear such date. Such inference has no basis.
Learned Counsel for the defendant no. 5 contends that the witness of the plaintiff should not be relied upon. He was not present when the transactions of 1982-1984 had happened. He became a partner of the plaintiff in 1994. According to the defendant no. 5, Exhibit 'A' was validly cancelled by Exhibit '1'. It is submitted that Exhibit 'P' does not establish that Exhibit 'C' was revived. The fact that Exhibit 'C' was not referred to in the contemporaneous correspondence is also highlighted on behalf of the defendant no. 5.
On behalf of the defendant nos. 3, 6 and 7 the legality and validity of the agreements in the suit are questioned. It is submitted that Exhibit 'C' was signed by Purnendro Mullick who was not a trustee. Reference was made to the clause of the trust deed which requires the trustees to act by way of majority and in the event of a tie the decision of the senior most trustee to prevail. It is pointed out that Purnendro Mullick, the signatory trustee was not the senior most trustee. He could not have acted alone to bind the trust. According to the defendant nos. 3, 6 and 7 Exhibit 'A' was entered into with the defendant no. 4. It is submitted that no document of nomination or assignment was executed by the defendant no. 4 in favour of the plaintiff and in any event the trustees did not accept such nomination or assignment. There is no evidence on record to demonstrate that the defendant no. 4 was a partner of the plaintiff. With regard to the so-called consideration of Rs.30,000/- mentioned in Exhibit 'C', it is pointed out that even on the statement made in the plaint to be true and correct, according to the plaintiff a sum of Rs.10,000/- was paid by 1982 and Rs.20,000/- in October 11, 1985.
According to the defendant nos. 3, 6 and 7, no agreement was executed by the trustees with the plaintiff in 1984. The trust had duly cancelled the subsisting agreement of 1982 being Exhibit 'A'. The trustees did not recognize the 1984 agreement being Exhibit 'C' as valid. Again the differences between Exhibits 'A' and 'C' with regard to the terms and conditions of the two leases are highlighted on their behalf. It is pointed out that the parties to the agreement are different, the person to bear the corporation liability in the two agreements is different, a clause of termination is introduced in one of the agreements. The default clause as well as the list of tenants are different. According to the defendant nos. 3, 6 and 7 the plaintiff by misrepresentation got Purnendro Mullick to apply under Section 230A of the Income Tax Act, 1961. The allegation made in the paragraph 5 of the plaint has not been established in evidence.
It is contended on behalf of the defendant nos. 3, 6 and 7 that the alleged 1984 agreement is not a concluded contract. All the trustees did not execute the 1984 agreement. The plaintiff itself did not sign the 1984 agreement. No date is given in the 1984 agreement. Therefore, the 1984 agreement is an incomplete document.
Referring to the oral evidence of the witness of the plaintiff it is contended that the 1982 agreement was validly terminated. The 1982 agreement was terminated by a letter dated January 15, 1986. This letter was replied to by a letter dated March 5, 1986 being Exhibit 'N'. It is contended on behalf of the defendant nos. 3, 6 and 7 that the plaintiff claims to be a nominee of the defendant no. 4. As a nominee, the plaintiff could not seek specific performance. Reliance is placed on 90 Calcutta Weekly Notes page 849 (Brojendra Badan Goswami v. Tapan Kumar Chakravarty) in this regard. Relying on Section 36 of the Indian Trust Act, 1882 it is submitted on behalf of the defendant nos. 3, 6 and 7 that the agreements of which specific performance has been sought for was not entered into by the trustees in accordance with law. The documents are not for the beneficial interest of the trust. Reliance is placed on All India Reporter 1998 Calcutta page 44 (Punit Beriwala v. Suva Sanyal & Anr.).
Referring to Section 10 of the Contract Act and Goel's Law on Specific Performance as well as All India Reporter 2008 Supreme Court page 1267 (B.K. Sri Harsha & Anr. v. M/s. Bharath Heavy Electricals Ltd.) it is submitted on behalf of the defendant nos. 3, 6 and 7 that the relief of specific performance is discretionary. In the given facts, it is submitted that, the relief of specific performance ought not to be granted.
On behalf of the plaintiff it is contended that Exhibit 'A' has been accepted by the parties. Exhibit 'C' being the agreement of 1984 has also been accepted by the parties. In this regard reference is made to Exhibits 'B' and 'U'. Referring to Exhibit 'R' being the post suit agreement dated April 19, 1996, it is contended that, the various terms and conditions contained in Exhibit 'R' would show that the trustees had accepted Exhibit 'C'. According to the plaintiff, the defence of the present contesting defendants because of their conduct post suit is not available to them. Referring to Order 12 Rule 6 of the Code of Civil Procedure, 1908 learned Counsel for the plaintiff submits that, post suit admission could be taken into consideration. Learned Counsel for the plaintiff submits that there is no major difference between the terms and conditions of Exhibit 'A', Exhibit 'C' and Exhibit 'R'. He submits that the differences between Exhibits 'C' and 'R' are tabulated in Exhibit 'T1'.
Relying on Section 16(c) of the Specific Relief Act, the learned Counsel for the plaintiff submits that, the essential terms and conditions of Exhibit 'C' and Exhibit 'R' being the same and Exhibit 'R' disclosing the readiness and willingness of the plaintiff to perform the essential terms and conditions of the contract, the plaintiff is entitled to the relief of specific performance as prayed for.
Referring to Exhibit 'F' which is the application for grant of income tax permission, learned Counsel for the plaintiff submits that the date of Exhibit 'C' is established. The date of the application for income tax clearance is July 30, 1984. The application was accompanied with the lease of 1984. Therefore, the date of Exhibit 'C' has to be read as July 30, 1984. He refers to Exhibits 'G', 'I' and 'J' and submits that, the same exhibits the readiness and willingness of the parties to execute Exhibit 'C'. Learned Counsel refers to the written statements filed by the defendant nos. 1 and 3 and the defendant no. 5 and submits that, there is no pleading as to why Exhibit 'A' is unconscionable. A party could not be allowed to contend Exhibit 'A' to be unconscionable without necessary pleading to such effect and evidence in support of such pleading. He relies upon an unreported judgment dated September 29, 2014 for the proposition that post suit events could be taken into consideration.
The first prayer of the plaintiff in the suit relates to specific performance of the agreement dated September 1, 1982. The first prayer speaks of the agreement dated September 1, 1982 claimed to be modified on July 30, 1982. The learned Counsel for the defendant no. 5 has highlighted this typographical error in the prayer. The plaintiff has put a wrong date of the second agreement in the first prayer. Instead of July 30, 1984 the first prayer speaks of July 30, 1982. I am proceeding to decide the issues on the basis that prayer (a) of the plaint contains a typographical error so far as the date of the second agreement is concerned. I am not minded to reject the first prayer of the plaintiff in the suit on the basis of the typographical error.
The agreement dated September 1, 1982 being Exhibit 'A' has been executed by three persons on behalf of the lessor. Such persons claim themselves to be the trustees of the Trust at the point of time. The second agreement referred to in the first prayer of the plaint is Exhibit 'C'. The first prayer of the plaint seeks specific performance of the agreement dated September 1, 1982 as modified on July 30, 1984 by directing the defendants to execute and register the deed of lease in favour of the plaintiff on the terms and conditions mentioned in the so- called approved deed of lease being Annexure-B to the plaint.
Exhibit 'A' was terminated by the letter dated January 15, 1986. The cheque for consideration amount was returned along with Exhibit '1'. The Advocate for the plaintiff responded thereto on March 5, 1986 being Exhibit 'N'. In this letter dated March 5, 1986 the Advocate for the plaintiff claims that Exhibit 'A' permitted nomination in favour of third party and that pursuant to such terms of Exhibit 'A' the plaintiff was nominated by the agreement holder of Exhibit 'A'. Such letter also contends that there was no concluded contract to provide 300 square feet on the top floor of the premises at Kiran Shankar Roy Road, Kolkata in Exhibit 'A'. Exhibit 'A' speaks of two Schedules. The first Schedule is the property which the agreement holder would have leased out excepting the tenancies named in the second Schedule to Exhibit 'A'. It also appears from Exhibit 'N' that the parties to Exhibit 'A' had agreed that the trust would have 300 square feet on the roof top of the premises concerned.
The plaintiff claims that Exhibit 'A' stood modified by Exhibit 'C'. Exhibit 'C' as produced and placed on record is undated. The plaintiff claims it to be of July 30, 1984 being the date on which Rabindro Mullick had issued the letter dated July 30, 1984 being Exhibit 'B' stating that an application under Section 230A of the Income Tax Act, 1961 for obtaining Income Tax Clearance Certificate from the concerned Income Tax Officer would be filed. The plaintiff claims Exhibit 'C' to be dated July 30, 1984 by virtue of Exhibit 'B'.
Exhibit 'B' has been signed by Rabindro Mullick. There is no evidence on record to suggest that Rabindro Mullick was duly authorized by the trustees of the Trust to issue Exhibit 'B' or to apply for Income Tax Clearance Certificate. Exhibit 'C' is signed by Purnendu Mullick. Exhibit 'C' is not signed by the plaintiff. Again there is no evidence to suggest that Purnendu Mullick was duly authorised by the trustees of the Trust to execute Exhibit 'C'.
The factual position therefore which emerges is that, Exhibit 'A' was terminated by Exhibit '1'. Such termination was not accepted as would appear from Exhibit 'O'. However, the plaintiff seeks specific performance of Exhibit 'A' as modified by Exhibit 'C'. Exhibit 'C' is executed by Purnendu Mullick. The numbers of trustees were more than the person who has executed Exhibit 'C' at that relevant point of time. Exhibit '12', the trust deed requires the trustees to out by majority or in the event of a tie the senior most trustee. Exhibit 'C' has not been established to be entered into by the trustees duly authorized in terms of the trust deed. Exhibit 'C' therefore is not valid. Exhibit 'C' according to the case of the plaintiff itself, modifies Exhibit 'A'. Therefore, the plaintiff cannot have specific performance of the modified version of Exhibit 'A' where the plaintiff has failed to establish that Exhibit 'C' had been entered into by the Trust. The plaintiff has not sought specific performance of Exhibit 'A' as it stands. In such circumstances, the first relief sought for by the plaintiff cannot be granted.
The plaintiff contends that post suit conduct of the parties should be taken into consideration. Exhibit 'R' is pressed into service in support of the contention that, some of the defendants have agreed to the grant of the lease in terms of Exhibit 'A' as modified by Exhibit 'C'.
The witness of the plaintiff has stated that the plaintiff wants specific performance of Exhibit 'A' as modified by Exhibit 'C'. The first prayer of the plaint as noted above is to such effect. By Exhibit 'R' some of the defendants have agreed to execute a lease in terms of Exhibit 'A' as modified by Exhibit 'C'. The defendants who have signed in Exhibit 'R' have done so claiming to be trustees of the Trust. The dispute as to who are the trustees of the Trust is yet to be adjudicated and is a subject matter of a different suit. In absence of the dispute as to who are the trustees of the Trust being settled it would not be prudent to accept that Exhibit 'R' has been entered into on behalf of the Trust. Therefore, this conduct of the defendants post the filing of the suit does not improve the case for the plaintiff. The plaintiff cannot be allowed to have specific performance of Exhibit 'A' as modified by Exhibit 'C' by virtue of Exhibit 'R'.
The Trust had duly terminated Exhibit 'A' by the letter dated January 15, 1986 being Exhibit '1'. The plaintiff may or may not accept such termination. So far as the Trust is concerned, the termination of Exhibit 'A' was complete on the issuance of Exhibit '1'. The receipt of Exhibit '1' is acknowledged inasmuch as the plaintiff had replied thereto through its Advocate's letter dated April 17, 1986 being Exhibit 'O'.
In view of the discussions above the second issue is answered by holding that the agreement for lease dated September 1, 1982 was validly terminated on behalf of the trust.
In Brojendra Badan Goswami (supra) it has been held that, ordinarily the benefits and obligations under a contract are claimable by and enforceable against not only the parties to the contract but also by or against the representative in interest of such parties, unless there is an expression contrary thereto made in the contract itself. It has also been held that, "Where in the agreement for sale, the plaintiff was a mere nominee without any obligation and not an assignee of any benefit or obligation under the said agreement, a suit at the instance of such a nominee for enforcement of the contract for sale is not maintainable."
In the instant case, the Trust had entered into the agreement being Exhibit 'A' with the defendant no. 4. The terms and conditions of Exhibit 'A' requires that the lease should be executed in favour of the lessee or his nominee or nominees and the lessors would at their own cost cause necessary parties to join in the said lease or leases. The plaintiff herein claims to be the nominee of the defendant no. 4 in terms of Exhibit 'A'. The defendant no. 4 does not dispute the nomination. In such circumstances, the plaintiff has to be held to be the nominee of the defendant no. 4. The third issue as framed accepts the position that the plaintiff is the nominee of the defendant no. 4. Brojendra Badan Goswami (supra) therefore has no relevance to the facts of this case.
In Punit Beriwala (supra) the Division Bench was concerned against the order refusing to grant injunction in favour of the plaintiff. In such an appeal , the Division Bench had found on facts that the plaintiff therein had admitted that there was no concluded agreement. In such context it was held that a mere agreement to agree is not enforceable in a Court of law in order to enforce an agreement. The same must constitute a contract within the meaning of Section 2(g) of the Indian Contract Act. The Division Bench had found that the plaintiff therein had failed to establish prima facie that there exists a lawful agreement capable of being enforced in a Court of law. The present suit is being heard finally. Exhibit 'A' is an agreement to enter into a lease. Exhibit 'A' was otherwise valid till its termination. There was a contract within the meaning of Section 2(g) of the Indian Contract Act between the parties to Exhibit 'A'. The ratio laid down in Punit Beriwala (supra) does not assist the defendants, in these facts and circumstances.
In B.K. Sri Harsha & Anr. (supra) the Supreme Court has held that, "8. The nature of suit for specific performance of contract has been highlighted by this Court in several cases. In Rajeshwari v. Puran Indoria (2005 (7) SCC 60), it was inter alia observed as under:
"5. Normally, a suit for specific performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract in terms of Section 16 of the Specific Relief Act, whether it was a case for exercise of discretion by the court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale. Other questions like the genuineness of the agreement, abandoning of the right to specific performance, a novation and so on, may also arise in some cases. No doubt, a finding on the three primary aspects indicated earlier would depend upon the appreciation of the pleadings and the evidence in the case in the light of the surrounding circumstances.
6. The right to specific performance of an agreement for sale of immovable property, when filed, raises questions of substantial importance between the parties as to whether the plaintiff has satisfied the requirements of Section 16 of the Specific Relief Act, whether it is a case in which specific performance of the contract is enforceable in terms of Section 10, whether in terms of Section 20 of the Act, the discretion to decree specific performance should be exercised by the court and in some cases, whether the suit was barred by limitation and even if not, whether the plaintiff has been guilty of negligence or laches disentitling him to a decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case. They are questions which have to be adjudicated upon, in the context of the relevant provisions of the Specific Relief Act and the Limitation Act (if the question of limitation is involved).
Though an order in exercise of discretion may not involve a substantial question of law, the question whether a court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in that suit."
In the context of the discussions above the third and the fourth issues are answered in the negative and against the plaintiff.
Since the plaintiff is not entitled to a decree for specific performance the question of passing a decree for delivery of possession does not arise. The fifth issue is, therefore, answered in the negative and against the plaintiff.
The plaintiff not being entitled to a decree for specific performance and of vacant possession of the suit premises, the sixth and seventh issues are answered in the negative and against the plaintiff.
C.S. No. 738 of 1987 therefore fails and is dismissed, however, without any order as to costs. All interim orders are vacated.
The department is directed to draw up and complete the decree as expeditiously as possible.
[DEBANGSU BASAK, J.]