Dilip Kumar Sarkar v. Sk. Abdul Maleque — 1990 DIGILAW 272 (CAL)

Judgment S.P. Rajkhowa J. 1. This appeal is directed against the judgment and decree dated 31st January, 1987 passed by Sri M.M, Sen, Assistant District Judge, 1st Court at Alipore in Title Suit No.7 of 1981 whereby the learned judge decreed the plaintiff's suit in part on contest with cost against the defendant nos. 1 to 4 and 6. The suit was decreed for recovery of the Slim of Rs. 22,03300 from the said defendants and the prayer for a decree for specific performance of the contract for sale was refused. 2. The plaintiff filed title suit no. 7 of 1981 for specific performance of the contract for sale dated 15.8.78 against the defendants, alternatively for refund of advance and realisation of compensation on enforcement of charge valued at Rs. 68,000/- only. The plaintiff's case is that the defendants offered to sell and the plaintiff agreed to purchase 275 29/80 acres of Raiyati land in Mouza Undayrajpur, Police Station Barasat, Dist. 24 Parganas, as fully described in the schedule of the plaint, for a consideration of Rs. 66,800/- only. Pursuant to the said agreement a baina-patra was executed on 15.8.78 by the defendant nos. 1 to 4 and 6 on receipt of Rs. 20,000/- only as earnest money and part payment of consideration. The said defendants acted also on behalf of the defendant no, 5 in this regard and undertook to make her join in the deed or deeds. The term of the agreement for sale have been fully described in paragraph 2 of the plaint. It is stated therein inter alia that the plaintiff or his heirs would pay the balance consideration of Rs. 46,800/- within 13.2.79 and the defendants or their heirs shall be bound to execute a registered sale deed of the said property in favour of the plaintiff or his nominee. The defendants hairs made the agreement for sale of the property free from all encumbrance and if on search by the plaintiff any defect in title was found then the defendants and their heirs would refund to the plaintiff or his heirs the earnest money of Rs. 20.000/- and all expenses. It is further averred that defendant no. I had represented that he would seek permission from the competent authority under Urban (Ceiling and Regulation) Act 1976 for selling the suit property in due time. Pursuant to the agreement. 20.000/- and all expenses. It is further averred that defendant no. I had represented that he would seek permission from the competent authority under Urban (Ceiling and Regulation) Act 1976 for selling the suit property in due time. Pursuant to the agreement. the defendants received various amounts on different dates from the plaintiff totalling Rs. 17,000/- upto 2nd March. 1980. The plaintiff pressed for the execution and registration of the sale deed hut the defendants tried to evade the matter. The plaintiff then got the information that the defendants or some of them were trying to sell some portion of the said property agreed to he sold to the plaintiff so he was obliged to publish in newspaper the fact of the said agreement made by the defendants to sell the properly to the plaintiff with a note of caution to all persons intending to purchase. The plaintiff also served pleader's notice on the defendant requesting them to complete the transaction and to execute the deed of sale but the defendants were not coming forward to execute the same. Hence he filed the suit praying for a decree for specific performance of the contract for sale dated 15.8.78. directing the defendants to convey the properly in suit to the plaintiff and register the document on receipt of the balance of consideration and for delivery of the possession of the suit property, alternatively, for a decree for the recovery of the slim of Rs. 37,000/- and a further sum of Rs, 5000/- as damages on enforcement of a charge on t he property under s. 55(a)(b) of the Transfer of Property Act plus interest and cost, 3. The defendants no. 1 to 4 and 6 resisted the claim of plaintiff by filing a joint written statement denying all the material allegations of the plaintiff. To short, the defence case is that the plaintiff and his wife are the owners of the brick business known as "Rock Field (India)". Defendant No. 1 came to know that there was a vacancy in this business and he approached the plaintiff for a post. The plaintiff represented that employment would be given provided the said defendant gave security of the landed property as he was to deal with cash. The said defendant no. Defendant No. 1 came to know that there was a vacancy in this business and he approached the plaintiff for a post. The plaintiff represented that employment would be given provided the said defendant gave security of the landed property as he was to deal with cash. The said defendant no. 1 agreed to the proposal and accordingly he handed over the title deed and other papers to the plaintiff and there was a talk for security deed for the service. Being persuaded by the assurance of the plaintiff, the defendant nos. 2 to 4 and 6 along with defendant no. 1 executed a document believing the same to be a security deed. The plaintiff did not allow the defendants to go through the deed. The plaintiff in collusion with the deed writer, attesting witness and other person or persons had manufactured the agreement. The defendants never agreed to sell the suit property at Rs. 66.800/- and they never took any earnest money. According to the answering defendants the deed is forged, fictitious, void and collusive and no consideration passed. After execution of the said deed, defendant no. 1 was employed in the service of the Brick Field of the plaintiff. After few months, the plaintiff employed his nephew Shyamal Sarkar and dismissed the defendant no. 1 from service. Thereafter the defendant no. 1 on his behalf and on behalf of other defendants approached the plaintiff to return the said security deed and other relevant paper; which were handed over to him earlier. Dispute arose between the parties over that issue and so it is averred the suit was filed by the plaintiff for wrongful gains. 4. On the above pleading of the parties altogether six issue were settled out of which issue no. 5 reads as follows : "Is the plaintiff entitled to the decree as prayed For ?" On the basis of the evidence on record as produced by the parties. the learned trial judge has opined that the execution of the document i.e. the agreement for sale, exhibit I, was complete and that the defendants also admitted the execution of the document although they had set up a case that they thought it to be a security deed. The learned judge also found the existence of the contract between the parties but that defendant no. 5 Mstt. The learned judge also found the existence of the contract between the parties but that defendant no. 5 Mstt. Suratannessa Bibi did not participate in the transaction and the Court could not compel her to execute the sale deed with other defendants in terms of the baina-patra. Her share was included in the said document, The Court could not enforce the contract piece-meal. The entirety of the contract was to be enforced. The learned judge further observed that there was nothing on record to show the extent of the share of Suratannessa Bibi in the suit property and the earnest money was paid in lump. It was not paid to the vendors proportiodately to their shares. So s. 12(4) of the Specific Relief Act could not be attracted as the present contract was not divisible into two parts. Thus observing, the learned trial judge concluded that the plaintiff was not entitled to specific performance of the contract but that he was entitled to get the refund of the earnest money paid by him to the defendants and accordingly he decreed the suit in part for refund of the earnest money and rejected the plaintiff's prayer for enforcement of the performance of the contract as per provision of the Specific Relief Act. 5, Being aggrieved thereby; the plaintiff has come up before this Court in this appeal. The learned counsel for the appellant has submitted that the learned trial judge has erred in law as he erroneously came to the conclusion that the contract could not be enforced. According to the learned counsel, the learned trial judge ought to have decreed the suit for specific performance of the contract by excluding the share of Suratannessa Bibi. In support of his contentions he has relied on Fry's Treatise on the Specific Performance of Contracts (6th Edn.) and reported decisions which we are going to discuss presently. 6. Section 473 of Fry's Treatise says, "where the vendor has not substantially the whole interest which he contracted to sell he cannot enforce the contract against the purchaser; and yet the purchaser can generally enforce it against him by compelling him to convey what he can, with an abatement of the purchase money as compensation for the deficiency". 7. 6. Section 473 of Fry's Treatise says, "where the vendor has not substantially the whole interest which he contracted to sell he cannot enforce the contract against the purchaser; and yet the purchaser can generally enforce it against him by compelling him to convey what he can, with an abatement of the purchase money as compensation for the deficiency". 7. Section 1257 of the same treaties says "Although, as a general rule, where the vendor has not substantially the whole interest he has contracted - to sell, he, as we have seen, cannot enforce the contract against the purchaser, yet the purchaser can insist on having all that the vendor can convey, with a compensation for the difference 8. Section 1264 of the same Treatise says, So where vendors contracted to sell the entirety of certain free holds and it was afterwards discovered that they were entitled to an undivided moiety only, the purchaser obtained a decree for the specific performance of the contract by the vendors to the extent of their moiety, with an abatement from the purchase money of one half the amount." 9. 33 CWN 3/4, Rai Promothonoth Mitter v. Gostha Behari Sen is a suit for specific performance, The 12 as co-sharers of certain lands granted a lease of the entire interest on receipt of a kabuliyat and the full amount of the selami, but the remaining co-sharers refusing to recognise this lease, the lessee brought a suit against all the co-sharers, praying for an amalneams, possession and mesne profits. Garlick, J. delivering the judgment of the Court observed that the "suit was not for the specific performance of a contract but for declaration of title and possession, and the plaintiff was entitled to a decree to the extent of the share of the actual lessors the contract with whom was complete," Suhrawardy, J. presiding over the Division Bench observed that "even if the suit were one for specific performance, a similar decree which would be one for partial performance could properly he made under s. 15 of the Specific Relief Act." 10. 36 CWN 1002, Harendra Chandra Das & ors. v. Nando Lal Ray is another case on specific performance of the contract. 36 CWN 1002, Harendra Chandra Das & ors. v. Nando Lal Ray is another case on specific performance of the contract. In this reported case, two persons acting as agents of five other persons entered into a contract with the plaintiff for sale of the share of four of these persons in certain immovable properties and of the ijora interest of the fifth, but it was found that they had entered beyond the scope of their authority. Three of these principals ratified the contract but two did not Under the facts and circumstances of the case, it was held that the contract was divisible one and could be specifically enforced as against the shares of the ratifying principals," 11. In 54 CWN 770, Abdul Karim Basma v. Gladys Murial it was held by the Privy Council that "where there are more vendors than one and one of them cannot complete the contract and convey his interest, there is nothing to prevent the conveyance of the interests which belong to the others and a specific performance of a part of the contract". 12. In AIR 1949 Federal Court 211, Jainarain Ram Lundia v. Surajmull Nagarmull it was observed that "Unlike English law the Indian law makes all joint liability, joint and several, in the absence of any agreement to the contrary, It is therefore open to promises to sue anyone or some of the joint promisors and it is no defence to such a suit that all the promisors must have been made parties. Moreover when the plaintiffs pray ultimately for specific performance for a part of the contract in the manner contemplated by s, 15, Specific Relief Act and express their readiness to pay the entire consideration for the part the defendants cannot be said to be prejudiced in any way." 13. The learned counsel for the appellant has relied on a recent decision of the Supreme Court as reported in AIR 1990 SC 854 (May issue), Kartar Singh v. Harjinder Singh. The facts of this case are that the respondent and his sister owned some properties and the respondent entered into a written agreement with the appellant for himself and on behalf of his sister for sale of all properties for consideration of Rs. 20,000/-. He undertook to get the sale deed registered. The facts of this case are that the respondent and his sister owned some properties and the respondent entered into a written agreement with the appellant for himself and on behalf of his sister for sale of all properties for consideration of Rs. 20,000/-. He undertook to get the sale deed registered. It was specifically mentioned in the agreement that he had agreed to sell not only his entire share in the property but also of his sister and that he would be responsible for getting the sale deed executed from his sister. The sister refused to sell property coming to her share. In a suit for specific performance of agreement a decree was granted in respect of half share of the suit property. This was set aside by the High Court of Punjab and Haryana by taking into consideration the provisions of s. 12 of the Specific Relief Act. But the Supreme Court disagreed with the High Court and held that this is not a case which is covered by s. 12 of the Act. "The present (case) is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely the respondent is concerned. Under the agreement he had contracted to sell whole of his property. The two contracts viz. for the sale of his share and of his sister's share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with the respondent in respect of his share in the property." It was further observed by the Supreme Court that the specific performance in respect of share of property owned jointly cannot be refused on the ground that the property will •have to be partitioned. It is not a legal infirmity and the vendee has the right to apply for partition and get the share demarcated. 14. It is not a legal infirmity and the vendee has the right to apply for partition and get the share demarcated. 14. Countering the argument of the learned counsel for the appellant, the learned counsel for the respondents has submitted that the plaintiff is not entitled to a decree for specific performance of the agreement to sell on the grounds that the agreement to sell was neither registered nor signed by all the respondents nor there was anything in the agreement to show that the share of respondent no: 5 stood on a separate footing from the rest of the land and, therefore, the agreement itself cannot be acted upon. His further contention is that from the date of the agreement to sell till the time of filing of the suit a considerable period of time had elapsed and the plaintiff has failed to explain the inordinate delay in filing the suit. According to the learned counsel for the respondent, time was the essence of the contract as per the terms of the agreement and so the plaintiff is not entitled to any relief inasmuch as he had brought the suit for enforcement of the agreement beyond the stipulated time. His further submission is that the respondent are tillers of land and if they arc to part company with their land, in enforcement of an invalid agreement for sale they would suffer irreparable loss. In support of his contentions he has also relied on a number of decisions of various High Courts. 15. He has cited the case of Kuraun Hajra v. Gokul Chand Brojobasi reported in AIR 1938 Calcutta, 234. While going through the facts of this reported case, we find that the facts of the case in our hand are not similar. In that reported case, the plaintiff contracted to purchase from the defendant a plot of land and paid certain sum as earnest money. Subsequently part of the plot in question was sold to a 3rd person, who was a purchaser for value without notice. There was nothing in the contract between the plaintiff and the defendant to suggest that part of it stood on separate and independent footing from another part. Nor could it be said that part sold was equal in value to the balance. Under the circumstances it was held that the specific performance of the part of the contract could not be granted. Nor could it be said that part sold was equal in value to the balance. Under the circumstances it was held that the specific performance of the part of the contract could not be granted. 16. The learned counsel for the respondent wants to draw further support from Bhaurao v. Mahadeo AIR 1979 Bom. 208 . In that reported case, the Bombay High Court dealing with s. 12 of the Specific Relief Act has observed that in a suit for specific performance of ;He whole contract, the plaintiff cannot seek decree for part only. However, it has been held by that High Court that the specific performance of the contract in part may be enforced if the plaintiff fulfils the condition laid down in clause (i) and (ii) of sub-so 3 of s. 12. In the case before us the plaintiff is all the time showing his readiness to pay the entire amount agreed upon minus the earnest money already paid and he has expressed his readiness to purchase the land from the defendants leaving the share of respondent no. 5. The learned counsel for the appellant has even gone a step further in course of argument, to forgo that consideration money which relates to "the share of respondent no. 5. In our opinion, the case before us stands on a different footing from that of the Bombay case. 17. Learned counsel for the respondent has relied on another decision of this Court a reported in AIR 1983 Calcutta, 216 (Mst. Sahida Bibi v. Sk. Golam Mukammed). But we find that the facts of the said reported case can be very well distinguished from the facts of the case in hand and, therefore, the said rulling is not attracted to the instant case. In that case it was found that the plaintiff was at variance with the real contract between him and the defendant regarding payment of the balance consideration money for sale of the suit property to the plaintiff and not only he had purported to falsely claim that he had paid another sum of certain amount in addition to a sum paid by him at the time of the execution of the agreement for sale but also claimed that he was entitled to deduction of another sum of certain amount for the cost of structures Quilt by him inside the suit property. In that case the specific performance of the contract could not be enforced in favour of the plaintiff because of his failure to aver and prove his readiness and willingness to pay the balance of amount of the consideration money. 18. Learned counsel for the respondent has also relied on AIR 1985 Patna 344, Diwali Pal v. Sardar Baldev Singh. We find that this rulling is also not attracted to the case in hand. In this reported case the agreement was that Rs. 72,000/- was required to be paid before asking the other party to perform his part of the contract but Rs. 54,000/- only was offered. Under the circumstances it was held that as the plaintiffs had not performed their part fully they were not entitled to a decree. In the case before us the deed of agreement dated 15th August 1978 (exhibit 1) shows that the earnest money of Rs. 20,000/- had been received by the defendants and the receipt of the same had been acknowledged in the body of the agreement itself, 19. On the point of time when it is of the essence of the contract, the learned counsel for the respondent has relied on AIR 1965 Madras 352, Sriram Colton Pressing Factory v Narayanaswami. It was also a case for specific performance of agreement for sale. A period of two months was fixed for performance of the contract but the time was extended from time to time. The plaintiff was sleeping on his right for nine months though time was the essence of the contract. There was subsequent rise in the price of the suit lands." Under the circumstances waiver or abandonment could be inferred and, therefore, the plaintiff was not entitled to a decree for specific performance of agreement for sale and that the plaintiff was only entitled to the refund of Rs. 5000/- paid as advance to the defendant. Accordingly, the trial judge, passed a decree for Rs.5000/- only and dismissed the rest of the plaintiff's claim. Being aggrieved thereby, the plaintiff came up before the High Court and the High Court concurred with the finding of the trial judge and dismissed the appeal. In our considered opinion this ruling is also not attracted to the case in hand became time in it was not the essence of the agreement. Being aggrieved thereby, the plaintiff came up before the High Court and the High Court concurred with the finding of the trial judge and dismissed the appeal. In our considered opinion this ruling is also not attracted to the case in hand became time in it was not the essence of the agreement. However, the learned counsel tried to draw support from a recital in the deed of• agreement which was to the effect that if the plaintiff paid the remaining sum of consideration amounting to Rs. 46,800/- within the month of Marc 1385 BS (i.e. corresponding to 10th February 1978 then the defendants and their heirs would remain bound to execute and register a deed of absolute sale of the suit property in favour of the plaintiff. We do not agree that this recital means that time was the essence of the contract. It was a mere stipulation. On this point the learned counsel for the appellant has submitted that time was not the essence of the contract and as the plaintiff was always ready and willing to perform his part of the contract, he is entitled to a decree for specific performance. To bring home this point he has cited AIR 1977 SC 1005 , Govinda Prosad v. Hari Dutt. It was a suit for specific performance of the agreement of sale Neither in the pleadings nor during the trial the defendants contended that time was of the essence of the contract. The parties did not go to trial on that basis and no issue was framed in that regard. Neither the terms of agreement nor the correspondence indicated that the parties treated time as of essence of the contract. Under the premises, the trial court held that the plaintiff was always ready and willing to perform his part of the contract and so granted the relief sought for by the plaintiff. The High Court at Allahabad in appeal inferred an intention on the part of the parties to treat time as of essence of the contract. But the Supreme Court negatived this inference. We find that this• ruling is attracted to the case in hand and supports the plaintiff's case. 20. The High Court at Allahabad in appeal inferred an intention on the part of the parties to treat time as of essence of the contract. But the Supreme Court negatived this inference. We find that this• ruling is attracted to the case in hand and supports the plaintiff's case. 20. Not being confident with AIR 1965 Madras 352, the learned counsel for the respondent has tried 10 fortify himself with a latest decision of the Allahabad High Court as reported in AIR 1990 Allahahad 66, Bishamhhar Nath Agarwal v. Kishan Chand In that case plaintiff was ready and willing to perform his part of the contract but the plaintiff was not making payment in terms of the mode as provided in the agreement. So it was held that the plaintiff could not be deemed to be ready to get the deed executed. But in the case before us we do not find any mention of the mode of payment in the deed of agreement (exhibit 1) and we are sorry to say that this ruling does not in any way come to the aid of the respondents. 21. At the end we would like to recapitulate the argument of the learned counsel for the appellant vis-a-vis the decision of the Supreme Court in Karlar Singh's case, AIR 1990 SC 854 (supra). In the case in hand the suit property was agreed to be sold by the respondents in favour of the appellant. The earnest money was also paid at the time of the agreement. Admittedly all the respondents owned the suit property jointly but the respondent no. 5 was not a signatory to the agreement for sale. Therefore, respondent no. 5 who was not a party to the agreement, could not be compelled to execute the deed of sale. But specific performance in respect of the shares of respondent nos. 1 to 4 & 6 cannot be refused on the ground that the property was owned jointly by all the respondents. This may necessitate partitioning of the property to exclude the share of respondent no. 5 but such partition may be lawfully enforced if the appellant applies for the same. 22. In the result, the appeal is allowed. The impugned judgment and decree are set aside. The plaintiff (appellant do get a decree for specific performance of the agreement for sale in respect of the shares of respondent nos. 5 but such partition may be lawfully enforced if the appellant applies for the same. 22. In the result, the appeal is allowed. The impugned judgment and decree are set aside. The plaintiff (appellant do get a decree for specific performance of the agreement for sale in respect of the shares of respondent nos. 1 to 4 & 6 in the suit property upon payment of the balance of the consideration money and deducting the proportionate value of the share of respondent no. 5. Under the facts and circumstances of the case we leave the parties to bear their respective cost. S. S. Ganguly. J: I agree. Appeal allowed.