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2012 DIGILAW 275 (CAL)

S. Vijayarajan v. Prabhu Dayal Choubey

2012-04-03

JYOTIRMAY BHATTACHARYA

body2012
Judgment :- Jyotirmay Bhattacharya, J. This Second Appeal is directed against the judgment and/or decree passed by the learned District Judge, A & N Islands, Port Blair on 17th March, 2009 in Other Appeal No.5 of 2003 affirming the judgment and decree dated 28th November, 2003 passed by the learned Civil Judge, Senior Division at Port Blair in O.S. No.31 of 1993. Both the learned Courts below dismissed the appellant’s claim for specific performance of contract on the ground of impossibility of performance of the contract, as one of the joint proposed purchasers did not join the plaintiff/appellant for enforcing the said contract in the said suit for specific performance of the contract and the plaintiff/appellant prayed for enforcement of the said contract in a modified way in deviation of the terms of the contract. While dismissing the plaintiff’s suit for specific performance of contract the learned Trial Judge held that refund of the earnest money to the plaintiff together with the interest thereon would be the appropriate relief in the facts of the instant case and accordingly a decree for refund of the earnest money together with the interest thereon was passed by the learned Trial Judge and the said decree was also affirmed in appeal by the learned First Appellate Court. Being aggrieved by the said judgment and decree of the learned First Appellate Court, the plaintiff/appellant has preferred the instant Second Appeal before this Court. The instant Second Appeal was admitted for hearing under Order 41 Rule 11 of the Code of Civil Procedure by the Division Bench of this Hon’ble Court on 7th April, 2009 on the following substantial question of law:- Whether in view of the oral testimony of the first defendant, the plaintiff was entitled to a decree for purchasing half of the immovable property being the subject matter of the agreement sought to be specifically enforced? Heard the learned advocates of the respective parties on the aforesaid substantial question of law, which was formulated by the Division Bench of this Hon’ble Court. This Court has not been invited to formulate any other substantial question of law in course of hearing of this appeal. As such, this Court restricts its consideration only to the substantial question of law which was formulated by the Division Bench of this Hon’ble Court as aforesaid. This Court has not been invited to formulate any other substantial question of law in course of hearing of this appeal. As such, this Court restricts its consideration only to the substantial question of law which was formulated by the Division Bench of this Hon’ble Court as aforesaid. Let me now consider the merit of the instant appeal with reference to the aforesaid substantial question of law. It is an admitted fact that the plaintiff/appellant along with the defendant/respondent no.2 namely M. Manickam entered into an agreement for sale with the defendant/respondent no.1 on 22nd December, 1990 for purchasing the entire suit property jointly for a total consideration of Rs.6,75,000/-. Though it was recorded in the said agreement that the proposed purchasers paid One Lakh rupees each to the vendor at the time of execution of the said agreement towards the earnest money but the defendant/respondent no.2, one of the proposed purchasers filed a written statement jointly with the defendant No.1, denying payment of One Lakh rupees by him to the vendor towards the earnest money. Though the said defendant/respondent no.2 in his written statement challenged the enforceability of the said contract on various grounds but in fact ultimately he did not come forward to contest the said suit. The said suit was contested by the defendant/respondent no.1(vendor) who in his written statement filed jointly with the defendant no.2, challenged enforceability of the said contract as one of the joint purchasers has not joined the plaintiff for enforcement of the said contract jointly though they agreed to complete the said transaction by a composite sale on payment of the balance of the consideration money and the proposal for sale of the half of the suit property to the plaintiff is incapable of implementation as the agreement for sale is indivisible and sale cannot be completed in a modified way as suggested by the plaintiff. He further contended that the property has been subsequently destroyed by fire and thus the agreement became inexecutable. He further contended that he also terminated the said contract by notice and both the purchasers accepted the said notice. The plaintiff/appellant prayed for enforcement of the contract dated 22nd December,1990 which was executed by the parties on 23rd December, 1990. Execution of the agreement for sale by the parties is not disputed. He further contended that he also terminated the said contract by notice and both the purchasers accepted the said notice. The plaintiff/appellant prayed for enforcement of the contract dated 22nd December,1990 which was executed by the parties on 23rd December, 1990. Execution of the agreement for sale by the parties is not disputed. Though the agreement shows that both the proposed purchasers jointly agreed to complete the said transaction for purchasing the entire suit property by a composite sale but the plaintiff prayed for a decree against the defendant/respondent no.1 directing him to complete the sale of half portion of the double storied wooden house located towards the shop of Shri R. Damodaran consisting of two rooms on the ground floor and two rooms on the corresponding first floor standing at survey no.58, measuring 2,400 Sq. Ft. situated at Babu Lane, Aberdeen Bazar, Port Blair Tehsil in favour of the plaintiff/appellant by executing a proper sale deed and by getting the sale deed registered for perfecting the title of the plaintiff/appellant in the suit property. The plaintiff also prayed for a decree for issuance of direction upon the defendant/respondent no.1 to hand over vacant and peaceful possession of two rooms, one on the ground floor and another on the corresponding first floor previously occupied by R. Raju, tenant and other two rooms occupied by the washman to the plaintiff. The plaintiff also made an alternative prayer for recovery of the earnest money together with 12% interest thereon, in case the decree for specific performance of contract is not passed. On perusal of the pleadings made out by the plaintiff in the plaint, it appears that the plaintiff/appellant in fact, instead of seeking enforcement of the contract which was executed between the parties on 22nd December, 1990 in its exact terms, wanted to enforce the said contract with a modified term. The plaint pleadings also show that the plaintiff never approached the defendant/respondent no.1 to purchase the entire property by paying the balance consideration amount. The plaint pleadings also show that the plaintiff never approached the defendant/respondent no.1 to purchase the entire property by paying the balance consideration amount. The plaintiff rather proceeded on the basis that since the plaintiff along with the defendant/respondent no.2 wanted to purchase the entire suit property jointly and further since one of the proposed purchasers has not joined him in completing the said transaction jointly as a whole, the plaintiff having intended to purchase half of the suit property, is entitled to get a decree for specific performance of contract so that his part of the contract with the defendant no.1 is specifically enforced. The plaintiff also claimed that the defendant also agreed to complete the said sale by transferring half of the suit property to the plaintiff/appellant no.1. The plaintiff thus claimed that the original agreement was subsequently modified by the parties orally. To strengthen the plaintiff’s claim regarding modification of the agreement for sale dated 22nd December, 1990, he relied upon the admission made by the defendant/respondent no.1 in his cross-examination wherein the defendant/respondent no.1 stated that “it was agreed that I would sell half portion of the said house to Bijoy Ranjan and half to Manickam”. Relying upon such admission of the defendant/respondent no.1 in his cross-examination, Mr. Krishna Rao, learned counsel appearing for the appellant submitted that the learned courts below ought to have passed a decree for specific performance of contract under Order 12 Rule 6 of the Code of Civil Procedure by taking note of the aforesaid admission of the defendant/respondent no.1. In order to pass a decree on admission under Order 12 Rule 6 of the Code of Civil Procedure, the Court must examine as to whether such admission is clear and/or unambiguous or not. On perusal of the entire evidence of the said defendant Section witness as a whole it cannot be ascertained as to whether such an agreement was arrived at between the parties before execution of the said agreement. If the parties really intended to complete the said sale as per the evidence as recorded above then a question will arise as to why such an agreement did not find any place in the contract executed between them on 28th December, 1990? This shows that agreement regarding sale in part was never intended by the parties at the time of execution of the contract. This shows that agreement regarding sale in part was never intended by the parties at the time of execution of the contract. It is not clear from the evidence that the parties subsequently modified the terms of the contract even orally. As such, this Court is of the view that this part of the evidence of the defendant’s said witness cannot be construed as an admission as such evidence is neither clear nor unambiguous and as such relying upon such admission, a decree for specific performance of contract cannot be passed under Order 12 Rule 6 of the Code of Civil Procedure. Even assuming that the plaintiff specifically agreed to sell half portion of the suit property to the plaintiff and the half portion thereof to the defendant/respondent no.2 but there is nothing on record to show that the defendant/respondent no.2 agreed to complete the said transaction as per the agreement as referred to by the defendant Section said witness in his evidence or in the manner as suggested by the plaintiff/respondent no.1. A tripartite agreement cannot be modified by two of the contracting parties. Since there is nothing on record to show that the respondent no.2, one of the contracting parties ever agreed to modify the said contract, the said contract cannot be implemented in the modified way, even if such modification was agreed upon by the plaintiff and the defendant no.1. That apart, even assuming that the parties all agreed to complete the sale in the manner as indicated in the alleged admission of the defendant’s said witness, but still then this Court finds that there was no concluded contract between the parties for completing the said transaction with modified terms inasmuch as nothing has been proved as to which portion of the suit property was agreed to be transferred to the plaintiff/appellant and which portion of the suit property was agreed to be transferred to the defendant/respondent no.1, as per the modified contract. Even there is no evidence on record to show as to the consideration money which the proposed purchasers individually was required to pay to the defendant no.1 for completing the said transaction separately by executing two different registered deeds in favour of the individual purchaser. Even there is no evidence on record to show as to the consideration money which the proposed purchasers individually was required to pay to the defendant no.1 for completing the said transaction separately by executing two different registered deeds in favour of the individual purchaser. Thus, this Court has no hesitation to hold that even assuming that the written contract was subsequently modified between the parties orally but still then decree for specific performance of contract cannot be passed by this Court as even the modified agreement did not contain specification about the exact area of the land to be sold by boundaries, length and breadth of the land, place from where it was to be measured. This conclusion is arrived at by this Court relying upon a decision of the Hon’ble Supreme Court in the case of Nahar Singh V. Harnak Singh and others reported in 1996(6) Supreme Court Cases 699, cited by Mr. Nag, learned counsel appearing for the defendant/respondent no.1. That apart it is rightly pointed out by Mr. Nag, learned counsel appearing for the defendant/respondent no.1 that the court cannot pass a decree for specific performance of contract when the plaintiff wants to prove a different contract than that of the contract which is pleaded in the plaint. In support of his said submission he has also relied upon a decision of the Hon’ble Supreme Court in the case of Ganesh Shet V. Dr.C.S.G.K. Setty and others reported in (1998) 5 Supreme Court Cases 381. This Court also finds substance in such contention of Mr. Nag and holds that modification of the original agreement and substitution thereof by an oral modified contract, having not been pleaded by the plaintiff in the plaint, a decree for specific performance of contract cannot be granted in favour of the plaintiff/appellant to enforce the alleged modified oral contract. Under such circumstances, this Court is of the view that the learned Courts below did not commit any illegality in dismissing the plaintiff’s suit for specific performance of contract. This Court thus does not feel any necessity to interfere with the judgment and/or decree of the learned Appeal Court, which is under challenge in this appeal, The appeal deserves no merit for consideration. The appeal thus stands dismissed. There will be however no order as to costs. Let the Lower Court’s records be sent down to the Court below immediately.