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2008 DIGILAW 477 (CAL)

Kalyan Kumar Chatterjee v. Namita Guho

2008-05-06

ASHIM KUMAR BANERJEE, TAPAS KUMAR GIRI

body2008
Judgment : ASHIM KUMAR BANERJEE, J. (1.) ONE Sukumar Chatterjee was a monthly tenant in respect of premises no. 6, Raja bagan Street, Calcutta. During the subsistence of the said tenancy the then owner of the property sold the premises to one Shri Kiron Chandra Mitra, since deceased. The said Shri Kiron Chandra Mitra filed an Ejectment suit in 1961 being suit no. 1040 of 1961 in the City Civil Court at Calcutta against the said Sukumar Chatterjee. The city Civil Court passed a decree for eviction as against Sukumar Chatterjee on or about June 29, 1965. Sukumar preferred an appeal in this court being F. A. No. 236 of 1966 and obtained an order of stay for execution of the decree on April 5, 1966. During the pendency of the appeal Chatterjees claimed to have entered into a negotiation with Kiran to the effect that Kiron would sell the property to Chatterjees at and for a sum between Rs. 1.1 lacs to Rs. 1.4 lacs and a formal agreement for sale would be entered into to the said effect. Chatterjees paid a sum of Rs. 20,000.00 as and by way of part consideration. A formal agreement was also entered into by and between the parties as appearing at pages 29-35 of the Paper Book. The parties appointed their respective advocates to conclude the transaction. According to the vendors, the purchasers failed and neglected to conclude the transaction despite willingness being expressed by the vendors. The purchasers contended that the vendors could not prove a marketable title. They also could not produce necessary estate Duty clearance certificate in respect of the estate of Kiran Chandra Mitra since deceased. It is pertinent to mention during the pendency of the Ejectment appeal and after execution of the said agreement Kiran died on May 26, 1967 leaving him surviving his heirs and legal representatives being the respondents above named. (2.) SINCE the transaction could not be completed the vendors terminated the agreement through their advocate which gave rise to a suit for specific performance instituted by chatterjees, the purchasers therein being Civil Suit No. 680 of 1968. (2.) SINCE the transaction could not be completed the vendors terminated the agreement through their advocate which gave rise to a suit for specific performance instituted by chatterjees, the purchasers therein being Civil Suit No. 680 of 1968. (3.) IN the said suit the purchasers also pleaded a tenancy agreement to the effect that during the subsistence of the agreement for sale the parties verbally agreed that so long the transaction could not be completed the purchasers would continue to pay monthly rent of Rs. 300. 00. When the suit went for trial the purchasers-plaintiffs gave up the case of tenancy. (4.) THE learned single Judge after considering the deposition and the rival contentions of the parties as expressed in the pleadings and in course of argument dismissed the suit holding the same as merit less. Hence, this appeal by the appellant. (5.) MR. Tapan Kumar Basu, learned counsel for the appellants contended as follows :- (i) Kiron obtained the ejectment decree suppressing the fact that he owned other properties which for the first time surfaced when the estate Duty clearance certificate was produced in trial. This fact would prove the contention of the appellants that the Estate Duty certificate was deliberately with held by the vendors-respondents. (ii) The learned Single Judge erroneously held that the appellants delayed the transaction whereas the facts would reveal that the principal cause of delay was non production of the Estate Duty clearance certificate. (iii) Learned Single Judge erroneously recorded that the appellants claimed that subsequent agreement was made between the parties which was factually not correct. It was an interim arrangement between the parties so that the vendor did not lose proper earnings from the property. However, the case of tenancy was given up by the appellants at the time of trial and the learned Judge could not have dealt with such issue. (iv) The learned Single Judge held that the agreement was valid. After holding the same as valid His Lordship erred in observing that it could not be enforced. (6.) MR. Sabyasachi Chowdhury, learned counsel appearing for the vendor-respondents contended as follows :-(i) On perusal of the deposition it would appear that the appellants delayed the transactions inordinately. Hence, the respondents were right in terminating the said agreement. His Lordship rightly held so. (6.) MR. Sabyasachi Chowdhury, learned counsel appearing for the vendor-respondents contended as follows :-(i) On perusal of the deposition it would appear that the appellants delayed the transactions inordinately. Hence, the respondents were right in terminating the said agreement. His Lordship rightly held so. (ii) Even from the admitted documents it would show that in September, 1967 the respondents were ready to conclude the transaction as all formalities were completed by that time. Hence, there was no occasion for the appellants to file the suit in March, 1968. No explanation was offered by the appellants as to the delay in filing the suit. (iii) On perusal of the prayers of the plaint it would appear that it was not a suit for specific performance simplicitor. On perusal of the averments made in the plaint it would appear that the appellants were not satisfied with the title of the property. Hence, they were not entitled to ask for specific performance. (iv) No definite pleading was made by the appellants that they were ready and willing to conclude the transaction. In absence of such pleading and in absence of any evidence to the said effect the appellants were not entitled to a decree for specific performance and the learned Judge rightly refused so. (7.) MR. Chwodhury drew our attention to the deposition specially the question nos. 206211; 214-220 appearing at pages 94, 98 and 99 of the Paper Book. He also drew our attention to question nos. 243-246 appearing at page 107 of the Paper Book. He also referred to the correspondence exchanged between the advocates for the parties prior to the filing of the suit to show that the respondents were never responsible for any delay in concluding the transaction. (8.) UNDER the Specific Relief Act, 1963 one of the main ingredients in a suit for specific performance is to plead the readyness and willingness of the plaintiff in concluding the transaction. We have searched in vain any such averment in the plaint. We have searched in vain any such evidence adduced on behalf of the appellants. Mr. Bose tried to contend before us that at the relevant time they had money in their bank account. In our view such evidence was not enough to show that the appellants were ready and willing to conclude the transaction. We have searched in vain any such evidence adduced on behalf of the appellants. Mr. Bose tried to contend before us that at the relevant time they had money in their bank account. In our view such evidence was not enough to show that the appellants were ready and willing to conclude the transaction. (9.) IT is necessary to refer to two letters written by the respective advocates for the parties. The letter dated April 24, 1967 appearing at pages 293-297 of the Paper book reveals that the appellants advocate accused the respondents specifically that they had failed and neglected to make out a marketable title. This letter was replied to by the respondents advocate on April 24, 1997 appearing at pages 298-300 of the paper Book. Each allegation made by the appellants was dealt with by the advocate for the respondents. Even if we take the letter of the appellants on the face value we would find that the respondents had failed to make out a marketable title. If that be the position the transaction failed and the appellants were entitled to sue the respondents for refund of the earnest money as well as damages. On perusal of the prayers we do not find any such prayer made therein. The appellants made two principal prayers in the alternative. They asked for investigation into the title and if the title was found good for specific performance and in the alternative, if the title was found not satisfactory for a declaration that they were entitled to the refund of the money by way of adjustment as against the monthly rent of Rs. 300. 00 as they continued to remain a monthly tenant on the basis of the subsequent arrangement which case was specifically given up at the trial as well as before us. (10.) SINCE the case of tenancy was given up they were not entitled to any relief as prayed for. (11.) THE matter may also be looked into from a different angle. Assuming the vendors were delaying the process or assuming they failed to prove the marketable title the appellants were entitled to the damages in addition to the refund of the earnest money. (11.) THE matter may also be looked into from a different angle. Assuming the vendors were delaying the process or assuming they failed to prove the marketable title the appellants were entitled to the damages in addition to the refund of the earnest money. Once they asked for specific performance of the contract it is presumed that they were satisfied with the title of the property or they wanted to conclude the transaction irrespective of the owners title of the property. Hence, the appellants on the basis of the averments and prayers made in the plaint were not entitled to a decree for specific performance. The learned Judge, in our view, rightly refused to grant specific performance. We do not find any scope of interference therein. The appeal thus fails and is hereby dismissed.