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2008 DIGILAW 913 (CAL)

Bhupesh Chandra Kar v. Durga Prasad Gupta

2008-09-12

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
JUDGMENT: BHASKAR BHATTACHARYA, J. (1.) THIS First Appeal is at the instance of a plaintiff in a suit for specific performance of contract and is directed against the judgment and decree dated december 19, 1997 passed by the Assistant District Judge, First Court, Barasat, dist. North 24-Parganas in Title Suit No. 309 of 1986 thereby dismissing the suit solely on the ground that the same was barred by limitation. Being dissatisfied, the plaintiff has come up with the present First Appeal. (2.) THE appellant before us filed a suit for specific performance of contract being Title Suit No. 309 of 1986 in the Court of the then Assistant District Judge, barasat, thereby praying for grant of a decree for the specific performance of contract for sale of about 7 cottahs 33 sq. ft. of land with a two-storied building on the allegation that the plaintiff was a tenant under the defendant in respect of the building portion and the plaintiff agreed to sell the entire suit property at a price of Rs. 61,001/-after taking a sum of Rs. 8,000/-as earnest money. According to the plaintiff, subsequently, on three other occasions, the defendant received a further sum of Rs. 38,000/- towards the said consideration money and, thus, the defendant received a total amount of Rs. 46,000/-out of the consideration amount of Rs. 61,000/ -. As the defendant filed three different suits for eviction against the plaintiff from three different tenanted portions occupied by him and in one of those proceedings, while giving evidence, he expressed his intention not to perform his part of the contract, the cause of action for filing the suit had arisen from that date. (3.) INITIALLY, the suit was decreed ex parte. The defendant filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree but such application was dismissed. (4.) BEING dissatisfied, the defendant preferred a First Miscellaneous Appeal before this Court which also ended in dismissal. (5.) THE matter went to the Supreme Court and the Apex Court set aside the ex parte decree on payment of costs of Rs. 5,000/-to the plaintiff with specific direction upon the Trial Judge to dispose of the suit within a limited time. (5.) THE matter went to the Supreme Court and the Apex Court set aside the ex parte decree on payment of costs of Rs. 5,000/-to the plaintiff with specific direction upon the Trial Judge to dispose of the suit within a limited time. (6.) IT may not be out of place to mention here that after the passing of the ex parte decree, which has subsequently been set aside by the Apex Court as mentioned above, the plaintiff deposited the balance amount before the learned trial Judge for execution of the said ex parte decree and such sum is lying in deposit in the executing Court since then. (7.) THE suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plaint and one of the defences taken by the defendant was that the suit was barred by limitation. The defendant contended that as the plaintiff in the month of November 1982 gave a notice asking the defendant to act in terms of the contract and the said demand was not complied with, it should be presumed that the plaintiff had knowledge that the defendant refused to perform his part of contract from such refusal. The suit having been filed in the month of November 1987, according to the defendant, the suit was barred under Article 54 of the Limitation Act. (8.) THE learned Trial Judge on consideration of the materials on record although answered all the issues in favour of the plaintiff as regards execution of the agreement, the acceptance of earnest money of Rs. 46,000/-and the fact that the plaintiff was all along ready and willing to perform his part of the contract, yet, dismissed the suit solely on the ground that the suit was barred by limitation having been filed more than three years from the date of issue of such notice by the plaintiff as indicated above. Being dissatisfied, the plaintiff has come up with the present appeal. (9.) MR Banerjee, the learned senior advocate appearing on behalf of the appellant, has strenuously contended before us that the learned Trial Judge erred in law in holding that the suit was barred by limitation by totally misreading the materials on record. Being dissatisfied, the plaintiff has come up with the present appeal. (9.) MR Banerjee, the learned senior advocate appearing on behalf of the appellant, has strenuously contended before us that the learned Trial Judge erred in law in holding that the suit was barred by limitation by totally misreading the materials on record. Mr Banerjee points out that the learned Trial judge misconstrued Exbt.-6, the letter dated 8th November, 1982 written on behalf of the appellant by his learned advocate to the respondent by which he merely asked him to produce xerox copy of the original purchase-deed of the defendant and his brother, and the xerox copy of the partition deed among his brother along with some other documents mentioned therein. Mr Banerjee points out that such letter sent under registered post with acknowledgement due came back with the postal endorsement "left". It further appears from the materials on record that the defendant specifically asserted that the said letter was not tendered to him by the postal authority and he was unaware of such letter. By relying upon such evidence, Mr Banerjee contends that mere writing of such letter, which came back with the postal endorsement "left", cannot be construed to mean that the defendant refused to perform his part of the contract as the said letter, according to the defendant, was tendered to him. (10.) AFTER going through the said letter, we find that by the said letter, the learned advocate on behalf of the appellant never complained inaction on the part of the defendant and he merely wanted those documents as well as the tax bill, rent receipt and income-tax clearance certificate, etc. Mere writing of such letter and the fact that the said letter had come back with the postal endorsement "left", cannot amount to knowledge of the plaintiff that the defendant refused to perform his part of the contract when the defendant himself admitted that the said notice was not tendered to him. (11.) WE, thus, find substance in the contention of Mr. Banerjee that it was only during the evidence in the suits for eviction filed by the defendant against the plaintiff that in answer to a question put to him in cross-examination, he flatly refused to sell the property to the plaintiff. (11.) WE, thus, find substance in the contention of Mr. Banerjee that it was only during the evidence in the suits for eviction filed by the defendant against the plaintiff that in answer to a question put to him in cross-examination, he flatly refused to sell the property to the plaintiff. Such statement having been made in the year 1985 and the suit having been filed in the year 1986, the same was well within the period of limitation as provided in Article 54 of the Limitation act. It appears that the period fixed for completing the transaction as would appear from the written agreement was not given effect to as would be manifested from the fact that the defendant from time to time took further amount of earnest money even after the alleged period fixed in the written agreement. (12.) WE, therefore, hold that the finding of the learned Trial Judge that the suit was barred by limitation was patently erroneous. (13.) THE next question is whether the suit should be decreed as the other issues have been answered in favour of the plaintiff. (14.) WE, however, find that during the pendency of this appeal, alleging violation of an interim order of status quo, the appellant filed an application for contempt against a subsequent purchaser of the property. The said subsequent purchaser took specific defence that he purchased the building portion of the suit property from a lady who in her turn purchased that portion of the suit property from the defendant prior to the institution of the suit but neither the said lady nor the said subsequent purchaser from the lady was made party to the suit for specific performance. (15.) A Division Bench of this Court dismissed the application for contempt with the finding that the subsequent purchasers not having been made party to the proceeding although the lady had purchased a portion of the property prior to the institution of the suit, the interim order passed in this proceeding was not binding. (15.) A Division Bench of this Court dismissed the application for contempt with the finding that the subsequent purchasers not having been made party to the proceeding although the lady had purchased a portion of the property prior to the institution of the suit, the interim order passed in this proceeding was not binding. (16.) ONCE it is brought to the notice of this Court by way of application in the same proceeding that a part of the suit property (building portion) had already been transferred before filing of the suit and the transferee or the subsequent purchaser from the said transferee has not been made party, no effective decree for specific performance can be passed in respect of the entire property. (17.) MR Banerjee, appearing on behalf of the appellant, after taking instruction from his client, who was present in Court, fairly submits that his client has instructed him to convey to this Court that he was ready to purchase the remaining portion which was not transferred to any outsider before the date of the institution of the suit at the selfsame price fixed by the agreement for sale of the entire property. (18.) IN view of such stance taken by the plaintiff-appellant, we set aside the judgment and decree passed by the learned Trial Judge with the finding that the suit is not barred by limitation and that the plaintiff has proved not only the existence of a valid agreement but also his readiness and willingness to perform his part of the contract. However, to enable the plaintiff to file necessary application for amendment of the plaint by deleting the portion of the property, which has already been transferred before institution of the suit, we remand the matter back to the learned Trial Judge. If such application for amendment is filed and it is established that no other portion than the one mentioned in the amended plaint had been transferred to any third party before institution of suit, the Court will pass necessary decree for specific performance of contract in respect of the amended suit property at the price mentioned in the agreement for sale. If any portion has been transferred after institution of the suit against the defendant, such subsequent transferee will be bound by the doctrine of lis pendens and there will be no bar in passing a decree for specific performance notwithstanding such transfer. If any portion has been transferred after institution of the suit against the defendant, such subsequent transferee will be bound by the doctrine of lis pendens and there will be no bar in passing a decree for specific performance notwithstanding such transfer. If no application for amendment of the plaint to the effect indicated above is filed within one month from the date of reopening of the Trial Court after the annual vacation, the learned Trial Judge will dismiss the suit. (19.) THE appeal, thus, is allowed to the extent, indicated above. In the facts and circumstances, there will be, however, no order as to costs.