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2005 DIGILAW 108 (GAU)

Bibhash Ranjan Paul v. Dipak Paul

2005-02-08

AMITAVA ROY, D.BISWAS

body2005
JUDGMENT A. Roy, J. 1. The Appellant-Defendant being aggrieved by the judgment dated 6.3.2000 and the decree dated 24.3.2000 passed by the learned Civil Judge (Senior Division), Karimganj, in TS No. 44/96 decreeing the same for specific performance of contract has preferred this appeal. 2. We have heard Mr. N. Choudhury, Advocate for the Appellant-Defendant and Mr. G.M. Paul, advocate for the Respondent-Plaintiff. 3. The Respondent-Plaintiff filed the aforementioned suit pleading, inter alia, that the Appellant-Defendant, the owner of the suit premises described in the schedule to the plaint had entered into an agreement for the sale thereof in his favour at a price of Rs.5,05,001.00 and executed a binama on 20.5.93 on receiving Rs.1,00,000.00 as earnest money. It was agreed, inter alia, that the Respondent-Plaintiff would pay balance amount of Rs.4,05,001.00 within three months from the date of execution of the binama upon which the Appellant-Defendant would execute the sale deed. The Appellant-Defendant thereafter enhanced the consideration price following which Anr. binama fixing the price to be Rs.5,35,000.00 was executed on 15.8.93. The Appellant-Defendant having received Rs.2,70,000.00 in all as advance money it was stipulated therein that the Respondent-Plaintiff would clear up the balance consideration money of Rs.2,65,000.00 within 30.9.94 and thereafter the Appellant-Defendant would execute the sale deed. It was further agreed that the Respondent-Plaintiff would pay a sum of Rs.50,000.00 within next two months which in fact was paid by him on 15.10.93. A dispute thereafter arose between the parties and the same was referred to arbitration for resolution. In course of such proceeding, the Respondent-Plaintiff obtained a hand note dated 31.3.95 executed by the Appellant-Defendant acknowledging receipt of Rs.3,20,000.00 from the Respondent-Plaintiff. The Appellant-Defendant made a commitment to refund the aforementioned amount within 31.12.95 failing which he would be liable to repay the same with interest. The Appellant-Defendant, however, failed to make the payment. Thereafter the Respondent-Plaintiff having approached the Appellant-Defendant on 10.4.96 for settling the matter, the latter agreed verbally to transfer the property involved as he had no resources to refund the amount of Rs.3,20,000.00 received by him already. The Appellant-Defendant agreed to execute the sale deed by 30.9.96 and accordingly, the parties signed the permission form for such sale on the same date, i.e., 10.4.96. The Appellant-Defendant farther agreed to accept the balance consideration price of Rs.2,15,000.00. The Appellant-Defendant agreed to execute the sale deed by 30.9.96 and accordingly, the parties signed the permission form for such sale on the same date, i.e., 10.4.96. The Appellant-Defendant farther agreed to accept the balance consideration price of Rs.2,15,000.00. Thereafter the Respondent-Plaintiff offered the balance of Rs.2,15,000.00 to the Appellant-Defendant and requested him to execute the sale deed as per the verbal agreement dated 10.4.96 but the latter avoided to do so, specifically pleading, that the Respondent-Plaintiff had always been ready and willing to pay the balance amount of Rs.2,15,000.00 and was still ready to perform his part of the contract, a decree for specific performance of the agreement of sale of the suit property was prayed for. In the alternative, the Respondent-Plaintiff prayed for a decree for Rs.4,00,000.00 (Rs. 3,20,000.00 being the advance money paid and Rs.80,000.00 as a compensation). The Appellant-Defendant resisted the claim contending, inter alia, that there was no subsisting contract to be enforced by specific performance. Without offering any comment on the binama dated 20.5.93, the Appellant-Defendant while admitting the execution of the binama dated 15.8.93 pleaded that in terms thereof on the failure of the Respondent-Plaintiff to pay the balance amount within a period of three months as mentioned therein, the advance consideration money paid was liable to be forfeited and the binama cancelled. It was asserted that the Respondent-Plaintiff failed to make payment within time stipulated. The assertion made in the plaint to the effect that the balance amount of Rs.2,65,000.00 was payable within 30.9.94 and that out of the said amount a sum of Rs.50,000.00 was paid on 15.10.93 and that the dispute between the parties was referred to arbitration were not admitted. The fact of execution of hand note dated 31.3.95 by the Appellant-Defendant in course of the arbitration proceeding was denied. It was further denied that on 10.4.96, the Appellant-Defendant had made any verbal assurance to execute the sale deed in respect of the property and that accordingly, on that date the parties had signed a permission form. The claim that the Respondent-Plaintiff thereafter had offered Rs.2,15,000.00 to the Appellant-Defendant and the allegation that he avoided to execute the sale deed was also denied. The claim that the Respondent-Plaintiff thereafter had offered Rs.2,15,000.00 to the Appellant-Defendant and the allegation that he avoided to execute the sale deed was also denied. The assertive stand of the Appellant-Defendant is that as the Respondent-Plaintiff failed to pay balance amount within the stipulated time set out in the binama, it stood forfeited and he was neither entitled to have the sale deed executed nor refund of the amount of Rs.3,20,000.00 with interest. 4. On the pleadings of the parties the following issues were framed- 1) Is there any cause of action of the suit? 2) Is the suit maintainable in the present form and manner? 3) Is the suit barred by limitation? 4) Whether the Plaintiff is entitled to a decree as prayed for? 5) Any other relief? The parties adduced evidence in support of their respective cases. The Respondent-Plaintiff examined himself and four other witnesses. Several documents were also proved. The Appellant-Defendant offered himself as a witness to support his pleaded stand. The learned trial Court by the impugned judgment and order decreed the suit for specific performance requiring the Respondent-Plaintiff to deposit an amount of Rs.2,15,000.00 in the Court and directing the Appellant-Defendant to execute the sale deed and withdraw the amount within six months. 5. The learned trial Court decided the Issue Nos. 1, 2 and 3 in favour of the Respondent-Plaintiff. While deciding the Issue No. 4, it took note of the evidence with regard to execution of the two binamas/agreements for sale, Exts.1 and 2, as well as the hand note executed by the Appellant-Defendant, Ext.-3. It placed reliance on the testimony of P.W.-4 and P.W.-5, the arbitrators as well as the proceedings of the arbitration, the pleadings of the parties therein and their statements recorded in course thereof. The learned Court below on the basis of the evidence of the witnesses of the Respondent-Plaintiff concluded that the Appellant-Defendant having failed to refund the advance money he had received and, on being approached by the Respondent-Plaintiff promised to transfer the suit property and accordingly put signature on the permission form, Ext.-4. The learned trial Court while dealing with the testimony of the Appellant-Defendant noticed, his admission with regard to the execution of two agreements and the hand note. The learned trial Court while dealing with the testimony of the Appellant-Defendant noticed, his admission with regard to the execution of two agreements and the hand note. While rejecting the Appellant-Defendant's stand that he had to sign the hand note under duress, the learned Court below held that he having failed to refund the advance amount as promised by him, he agreed on 10.4.96 to transfer the suit property on receipt of the balance amount but eventually backed out of the deal. The decree for specific performance of the contract was thus granted. 6. Mr. Choudhwy has emphatically argued that as time was the essence of the contract as is borne out by the two binamas/agreements, Exts.-1 and 2, on the failure of the Respondent-Plaintiff to pay the balance amount within die stipulated time, the advance money stood forfeited and further the agreements stood annulled. The covenants contained in the binamas/agreements being binding on the parties and the Respondent-Plaintiff having failed to pay the balance consideration price within the time fixed therein not only the earnest money stood forfeited, the agreements for sale ceased to subsist to be enforced in law. According to him, there is no evidence worth the name in support of the purported oral agreement between the parties on 10.4.96 for conveyance of the suit property against the advance money paid pursuant to earlier binamas/agreements, Exts-1 and 2 and, therefore, the learned trial Court grossly erred in law and on facts in decreeing the suit. The arbitration proceeding having been initiated only for the realization of the money advanced and the hand note, Ext.- 3 being issued under compulsion, the learned trial Court misdirected itself in granting the specific performance of a contract which was non est in law. The Appellant having denied any fresh agreement dated 10.4.96 or having put any signature on the permission form on the same date, the learned trial Court in absence of any evidence to the said effect ought to have dismissed the suit, he argued. According to him, in the face of Sections 91 and92 of the Indian Evidence Act, 1872, the so-called oral agreement of 10.4.96 can neither supersede stipulations in the binamas, Exts.1 and 2 nor can be pressed into service for interpreting the same and, therefore, the impugned judgment and decree being Vitiated by incurable legal infirmities is liable to be interfered with in this appeal. He maintained that having regard to the conduct of the Respondent-Plaintiff as well as totality of the circumstances, the decree as prayed for being an equitable relief, the suit ought to have been dismissed with costs. He contended that the present value of the suit property would be in the vicinity of Rs.10.00 Lakhs and, therefore, the impugned decree if allowed to stand would result in manifest injustice and irreparable loss to the Appellant-Defendant. Mr. Choudhury sought to buttress his arguments relying on the decision of the Apex Court in K.S. Vidyanadam and Anr. v. Vairavan, (1997) 3 SCC 1 . 7. Controverting the above, Mr. Paul has argued referring to Ext.-12, the agreement cum undertaking executed by the Respondent-Plaintiff that the said document read with the recorded evidence in support of the oral agreement dated 10.4.96, demonstrate a subsisting contract enforceable in law and, therefore, the learned trial Court was perfectly justified in decreeing the suit, referring to the evidence on record, more particularly, that of the Respondent-Plaintiff, P.W.-1, the learned Counsel urged that the oral agreement between the parties on 10.4.96 had been clearly established thereby and was further substantiated by Ext.-4, the permission form signed by the parties on the very same date. He maintained that the Respondent-Plaintiff had been always ready and willing to perform his part of contract and that in the facts and circumstances of the case he was entitled to the equitable relief as prayed for. The impugned judgment and order having been passed on a thorough consideration of the evidence on record and in the correct legal perspective, the same does not warrant interference of this Court, he submitted. 8. From the respective positions adopted by the parties, the central point of controversy seeking resolution is whether an oral agreement was entered into between them on 10.4.96 for sale of the suit property treating the sum advanced against the two earlier written agreements, Exts.-1 and 2, as the advance money in consideration of such transaction. Having noticed the rival stands in the pleadings, it would be expedient to make a brief survey of the evidence on record both oral and documentary for a fair adjudication of the issue. 9. The Respondent-Plaintiff Dipak Paul as P.W.-1 proved the agreements, Exts.-l and 2, dated 20.5.93 and 15.8.93, respectively, with the signatures of the Appellant-Defendant thereon. Having noticed the rival stands in the pleadings, it would be expedient to make a brief survey of the evidence on record both oral and documentary for a fair adjudication of the issue. 9. The Respondent-Plaintiff Dipak Paul as P.W.-1 proved the agreements, Exts.-l and 2, dated 20.5.93 and 15.8.93, respectively, with the signatures of the Appellant-Defendant thereon. He stated that following the first agreement, he paid Rs.1.00 lakh as advance and the balance amount of Rs.4,05,001.00 was payable (the consideration price having fixed at Rs.5,05,001.00) within three months of the execution thereof. He testified that before the expiry of the period, the Appellant-Defendant raised the price to Rs.5,35,000.00 where after the second agreement, Ext.-2, was executed. In the meantime, a total amount of Rs.2,70,000.00 having been advanced against the transaction, in terms of the agreement dated 15.8.93 (Ext-2), the balance amount of Rs.2,65,000.00 was payable within 30.9.94 whereupon the Appellant-Defendant was to execute the deed of sale. He further deposed that in terms of the agreement, Ext.-2, he paid an amount of Rs.50,000.00 on 15.10.93 and thereafter though he offered the balance amount, the Appellant-Defendant did not accept the same and refused to execute the deed of sale. The matter was thereafter referred to arbitration in which amongst Ors. Md. Fariuddin Choudhury, P.W.-4, Sisir Kr. Dutta, P.W.-5, were arbitrators. The Appellant-Defendant in course of the arbitration executed a hand note for Rs.3,20,000.00 on 31.3.95 undertaking to repay the amount by 31.12.95. As the Appellant-Defendant failed to refund the above amount, he (Respondent-Plaintiff) visited the former on various occasions and eventually on 10.4.95, the Appellant-Defendant asked him to pay the balance amount of the price of the property and to that effect also handed over a permission form for the sale thereof signed by him on the same date. According to the witness, it was agreed upon between them on that day that the Appellant-Defendant would execute the registered deed of sale on 30.9.96. The Respondent-Plaintiff was categorical in stating that on that day the Appellant-Defendant agreed to sell the property to him at the price earlier fixed as he expressed his inability to repay the advance received by him. He stated that on enquiry it transpired that no permission was required for transferring the property. The permission form, Ext.- 4, was retained by him. He stated that on enquiry it transpired that no permission was required for transferring the property. The permission form, Ext.- 4, was retained by him. He stated that in terms of the agreement dated 10.4.96, the Appellant-Defendant had granted him time to make payment of the balance amount within 30.9.96. He stated that within the dead line he offered the balance amount on various occasions and had been ready and willing to do his part but the Appellant-Defendant avoided to accept the payment. 10. P.W.-2, is the writer of the agreement, Ext.-2. He stated that the Appellant-Defendant was present when the said deed was written. He denied the suggestion that the Respondent-Plaintiff had created the said document in collusion with him. P.W.-3 is a relation of both the parties and is the writer of Ext. 1. He proved his signature thereon as well as of the Appellant-Defendant. He confirmed that initially the price of the property was fixed at Rs.5,05,000.00 and the Respondent-Plaintiff had paid an advance of Rs.1.00 Lakh on 20.5.93. He testified that on 15.8.93 Anr. amount of Rs.1,70,000.00 was paid whereupon Anr. deed of agreement was executed. He substantiated that the price of the land had been increased by Rs.30,000.00. He also confirmed payment of Rs.50,000.00 by the Respondent-Plaintiff on 15.10.93. He maintained that in all, an amount of Rs.3,20,000.00 was paid. In cross examination while denying the suggestion that Exts.-l and 2 were collusive documents, he deposed that when the balance money was offered by the extended date on 30.9.94, the Appellant-Defendant did not accept. 11. P.W.-4 is one of the arbitrators. He stated that the Appellant-Defendant had agreed to sell the suit property to the Respondent-Plaintiff and in that connection received Rs.3,20,000.00 as advance of the sale price which was initially fixed at Rs.5,05,000.00 but subsequently raised to Rs.5,35,000.00. When a dispute arose, it was settled in arbitration in course of which, a written agreement was executed on 31.3.95. The Appellant-Defendant also executed a hand note, Ext.-3, in presence of the arbitrators. The hand note, Ext-3 was executed as there was no other proof of exchange of money. He further stated that the Appellant-Defendant did not pay the money and when he was summoned, he expressed his inability to repay the same and offered to give up the suit property. The hand note, Ext-3 was executed as there was no other proof of exchange of money. He further stated that the Appellant-Defendant did not pay the money and when he was summoned, he expressed his inability to repay the same and offered to give up the suit property. In cross examination, the witness stated that the arbitrators rendered a written decision in the proceeding. He denied the suggestion that the Appellant-Defendant had executed the hand note being insisted by the arbitrators. 12. P.W.-5 is also one of the arbitrators. He proved the arbitration proceedings. He confirmed in course of the proceedings that an agreement and a hand note were executed. He stated that the Appellant-Defendant executed the hand note in favour of the Respondent-Plaintiff whereas the latter executed an agreement in favour of the former. He proved the hand note to be Ext.- 3 and the agreement executed by the Respondent-Plaintiff, Ext.-12, Ext.-13, the decision in the arbitration proceeding was also proved by the witness. In cross examination, the suggestion that the signature of the Appellant-Defendant was forcibly obtained on the hand note was categorically denied. 13. D.W.-1 admitted in his evidence that he had received a sum of Rs.3,20,000.00 against the sale price of Rs.5,35,000.00. According to him, the terms of the two agreements were three months. He stated that he did not get the sale deed registered as the Respondent-Plaintiff failed to pay the balance amount within the stipulated time. According to him, in terms of the agreement, the Respondent-Plaintiff was not entitled to get refund of the advance money once the time fixed for paying the balance amount had lapsed. According to him, the term of the second agreement dated 15.8.93 expired on 15.11.93. He deposed that he had copied the hand note from a draft prepared by P.W.-5 out of fear and against his will. He denied of having any other agreement with the Respondent-Plaintiff over the suit property. In cross examination, he, however, admitted the execution of the Exts.-l and 2 and also receipt of payment from time to time pursuant thereto. He conceded that he did not lodge any complain with regard to the execution of the hand note. He denied the suggestion that the Respondent-Plaintiff visited his shop on 10.4.96. He admitted Ext.-4(1) as his signature. He denied that the Respondent-Plaintiff had verbally agreed to purchase the suit property on that day. He conceded that he did not lodge any complain with regard to the execution of the hand note. He denied the suggestion that the Respondent-Plaintiff visited his shop on 10.4.96. He admitted Ext.-4(1) as his signature. He denied that the Respondent-Plaintiff had verbally agreed to purchase the suit property on that day. He denied to have handed over the permission form for selling the suit property to the Respondent-Plaintiff. He also denied of having committed that on receipt of the permission, he would execute the sale deed within 31.12.96. 14. Adverting to the documents proved, Ext.-1 dated 20.5.93 evidences the agreement between the parties for sale of the property at a consideration price of Rs.5,05,000.00 out of which Rs.1.00 Lakh was paid in advance. The balance of the consideration price was stipulated to be paid within a period of three months from the date of execution thereof following which the Appellant-Defendant was supposed to execute the sale deed. It was further agreed that in case of failure of the Appellant-Defendant to pay the balance amount, the advance money would stand forfeited. The endorsements made subsequently in the said agreement indicates that on 28.5.93 and 27.6.93 further sums of Rs.20,000.00 and Rs.25,000.00, respectively were paid to the Appellant-Defendant towards the proposed transaction. Ext.-2, executed on 15.8.93 is the subsequent agreement involving the same property which discloses that the price was raised to Rs.5,35,000.00 out of which a sum of Rs.2,70,000.00 had already been received by the Appellant-Defendant. The parties thereby agreed that the balance amount of Rs.2,65,000.00 would be paid by the Respondent-Plaintiff within 30.9.94. The further stipulation was that by 15.10.93 out of the above balance amount, the Respondent-Plaintiff would pay a sum of Rs.50,000.00. It was agreed that in case this amount was not paid within the time fixed, the agreement would be treated as null and void and further on the failure to pay the balance amount of Rs.2,65,000.00 within the stipulated time, the advance money would stand forfeited, Ext.-3, is a hand note issued by the Appellant-Defendant acknowledging the receipt of Rs.3,20,000.00 from the Respondent-Plaintiff recording an understanding to repay the said amount on demand with interest at the rate of 10% per annum. Ext.-4 is the application form for permission for transfer of the property signed by both the parties on 10.4.96. Ext.-4 is the application form for permission for transfer of the property signed by both the parties on 10.4.96. The document mentioned the Respondent-Plaintiff and the Appellant-Defendant as the vendee and the vendor, respectively, P.Ws.-4 and 5 are two of the arbitrators appointed. Exts.-5 to 11 are the pleadings and the statements in the arbitration proceeding wherefrom the respective stand of the parties is decipherable. The arbitrators by order dated 23.3.95 had recorded their decision to the effect that the Appellant-Defendant would execute a hand note for Rs.3,20,000.00 in favour of the Respondent-Plaintiff and the latter would execute a written bond in favour of the former that he would accept the money in instalments upto 31.12.95 with a liberty to realize the same from the Appellant-Defendant in case he failed to make the payment within the said date. Ext.-3, hand note dated 31.3.95 was executed thereafter by the Appellant-Defendant. In terms of the above decision, the Respondent-Plaintiff executed Ext.-12 dated 31.3.95, inter alia, to the effect that on the refund of sum of Rs.3,20,000.00 either at a time or in instalments within 31.12.95, the hand note, Ext.-3, would stand discharged but in case no such payment was made, he would be at liberty to enforce the hand note with interest on the said amount. The document contained a clause superseding all previous agreements and commitments between the parties and the conditions enumerated therein. The document was witnessed by all arbitrators. 15. From the evidence available on record both oral and documentary it transpires that though the Appellant-Defendant in his written statement had expressed some reservation with regard to the execution of the agreement, Ext-2, and the hand note, Ext.-3, in course of the evidence he admitted to have executed both the documents. His plea that in terms of Ext.-2, the balance consideration price was payable within three months of the execution of the document is belied by the same, inasmuch as, it transpires there from that the balance amount was payable by 30.9.94. The Appellant-Defendant in his evidence admitted that he had not registered any complain with any authority alleging that Ext.-3 was got executed by him under duress. He also did not question the document, Ext.-12, executed by the Respondent-Plaintiff. The Appellant-Defendant in his evidence admitted that he had not registered any complain with any authority alleging that Ext.-3 was got executed by him under duress. He also did not question the document, Ext.-12, executed by the Respondent-Plaintiff. A plain reading of the two documents, Exts.-3 and 12, clearly demonstrates that an amount of Rs.3,20,000.00 was advanced by the Respondent-Plaintiff to the Appellant-Defendant in connection with the proposed transaction of sale of the suit property. Though in terms of Ext.-3 the Appellant-Defendant was liable to refund a sum of Rs.3,20,000.00 to the Respondent-Plaintiff by 31.12.95, it is the admitted case of the parties that it has not been done till date. The Appellant-Defendant, therefore, has failed to act in terms of the commitment recorded in Ext.-3. As a corollary, in law the Respondent-Plaintiff was thus entitled to enforce the hand note for realization of the said amount. 16. Ext.-12 has been proved by P.W.-5 one of the arbitrators and a witness thereto. The execution of this document is admitted by the Appellant-Defendant in his testimony as well. This document apart from recording the liability of the Appellant-Defendant to refund the sum of Rs.3,20,000.00 in terms of a hand note, Ext.-3, most importantly mentions that it cancelled and superseded all previous agreements and commitments made by and between the parties. In our considered view, this clause in Ext.-12 has the potential of overriding the covenants enumerated in Exts.-1 and 2, including the one of forfeiture of the advance amount paid by the Respondent-Plaintiff in connection with the proposed transaction of the suit property. The net effect of this document read with Ext.-3, therefore, is that a sum of Rs.3,20,000.00 paid by the Respondent-Plaintiff remained in deposit with the Appellant-Defendant recoverable by enforcing Ext.-3, the hand note. 17. It is in this context that the subsistence of the oral agreement claimed to have been enforced into between the parties on 10.4.96, subsequently to the execution of the above two documents on 31.3.95 assumes importance. The supporting evidence can be traced to the testimony of the Respondent-Plaintiff, P.W.-1, and his witness, P.W.-4. P.W.-1 testified that the Appellant-Defendant having failed to refund the money as undertaken in terms of the hand note, Ext.-3, he visited the Appellant-Defendant demanding the same on various occasions. The supporting evidence can be traced to the testimony of the Respondent-Plaintiff, P.W.-1, and his witness, P.W.-4. P.W.-1 testified that the Appellant-Defendant having failed to refund the money as undertaken in terms of the hand note, Ext.-3, he visited the Appellant-Defendant demanding the same on various occasions. On his last visit on 10.4.96 at the shop of the Appellant-Defendant the latter expressed his inability to repay the amount lying in deposit with him and instead handed over a form for obtaining permission for transfer of the suit property, Ext.-4, signed by him. Thereafter he offered the balance amount of Rs.2,15,000.00 to the Appellant-Defendant which he avoided to accept on various pretext. As the Appellant-Defendant refused to accept the balance amount and had failed to refund the amount, he filed the suit. P.W.-4 one of the arbitrators stated that when the Appellant-Defendant did not refund the money in terms of the Ext.-3, hand note, the arbitrators summoned him and the Appellant-Defendant expressed his inability to repay the money and instead offered to convey the property. In Ext-4, the application form, the property described therein is the suit property. The form depicts the name of the vendor and the vendee to be that of the Appellant-Defendant and the Respondent-Plaintiff, respectively. It is shown to have been executed on 10.4.96 and bears the signatures of both the parties. The contention of Mr. Choudhury that the signature of the Appellant-Defendant appearing in Ext.- 4 though his, was not put on 10.4.96 is not convincing. 18. On a consideration of the entire gamut of the facts and circumstances of the case and the materials on record, we are of the considered view that the Appellant-Defendant having failed to repay the amount mentioned in Ext.-3, the hand note, in spite of repeated demands made by the Respondent-Plaintiff, he offered to convey the suit property on 10.4.96 and handed over the permission form, Ext.-4, duly signed by him to effect such transaction. The offer made by the Appellant-Defendant to sell the suit property as above and accepted by the Respondent-Plaintiff according to us constitutes a legally enforceable agreement for sale of the suit property. The offer made by the Appellant-Defendant to sell the suit property as above and accepted by the Respondent-Plaintiff according to us constitutes a legally enforceable agreement for sale of the suit property. Earlier agreements, Exts.-1 and 2, with the stipulation of forfeiture of the advance money on the failure of the Respondent-Plaintiff to pay the balance amount within time fixed is of no consequence in the teeth of Ext.-12 which clearly proclaims that all previous agreements stood superseded thereby. As a corollary, the condition of forfeiture of the advance amount stood overridden by Ext. 12. The oral agreement for sale entered into on 10.4.96 has been duly proved by the Respondent-Plaintiff and is enforceable in law. 19. The endeavour to seek shelter under Sections 91 and 92 of the Indian Evidence Act, 1872, having regard to the materials on record is futile. Section 91 mandates that when the terms of a contract or of a grant or of any disposition of property have been reduced to the form of a document, no evidence in proof of such terms is permissible except the document itself or the secondary evidence of its contents in cases in which secondary evidence is admissible in law. Section 92 bars evidence of any oral agreement or statement for the purpose of contradicting varying, adding to or subtracting from the terms of the contract or grant or other disposition of property or any matter required by law to be reduced to the form of a document and proved in terms of Section91. Ext.-12, the execution whereof is not in dispute clearly overrides the earlier agreements, Exts-1 and 2, with the terms and conditions contained therein. Exts.-1 and 2, therefore, had been rendered non est by Ext.-12. The aspect of oral agreement entered into between the parties on 10.4.96 for conveyancing the suit property has been dealt with hereinabove. In law an agreement for sale of immovable property need not be in writing and can be oral. In view of the fact that the oral agreement was entered into at a point of time when Exts.-1 and 2 were admittedly not in force, the provisions of Sections 91 and 92 are not attracted in the facts of the instant case. 20. The hand note alluded hereinabove was executed on 31.3.95, Ext.-12, was executed also on the same date. 20. The hand note alluded hereinabove was executed on 31.3.95, Ext.-12, was executed also on the same date. The oral agreement was entered into between the parties on 10.4.96 and the suit was filed in the later part of the same year. Considering the sequence of events as noticed hereinabove, we do not consider that there had been any undue delay in filing the suit. The decision of the Apex Court in K.S. Vidyanadam and Ors. (supra) relied upon by Mr. Choudhury in the present setting of facts is of no assistance. In the reported case there was an unexplained delay of about two and half years on the part of the Plaintiff in enforcing the agreement by instituting a suit for the purpose. The Apex Court held that though in the cases of agreements of sale relating to immovable property time is not the essence of the contract unless specifically provided to that effect, the Plaintiff must perform his part of the contract within a reasonable time which has to be determined by taking note of the surrounding facts and circumstances including the terms of the contract and the nature of the property. The Apex Court was of the view that in the facts as obtained in that case, there was a total inaction on the part of the Plaintiff for two and half years in clear violation of the terms of the agreement. 21. In view of the above narrative and determination on various aspects highlighted by the parties, we are unhesitatingly in agreement with the findings and conclusions of the learned trial Court. We are of the view that by enforcing the oral agreement for sale on 10.4.96, the Respondent-Plaintiff would not enjoy unfair advantage over the Appellant- Defendant or that it will be in any way iniquitous to enforce the specific performance of the said agreement. The conduct of the Appellant-Defendant as depicted in the fact scenario noticed hereinabove does not entitle him to avoid the transaction which he had agreed upon on 10.4.96. This is more so when admittedly he did not refund Rs.3,20,000.00 lying with him. The appeal thus, according to us, is without any merit and, is dismissed. Appeal dismissed.