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2012 DIGILAW 876 (GAU)

Nirendra Ch. Das v. Jugomaya Nath

2012-07-24

BROJENDRA PRASAD KATAKEY

body2012
JUDGMENT B.P. Katakey, J. 1. This appeal by the plaintiff is directed against the judgment and decree dated 20th March, 2002 passed by the learned Additional District Judge, Cachar at Silcahr in Title Suit No. 39/1995, whereby and whereunder the suit filed by the plaintiff has been dismissed. The present appellant as plaintiff instituted Title Suit No. 135/1992 in the Court of the learned Assistant District Judge (now Civil Judge), Cachar at Silchar, which was renumbered as Title Suit No. 39/1995 on being transferred to the Court of the learned Additional District Judge, Cachar at Silchar, against the present respondents as defendants praying for a decree for realization of Rs. 52,500/- with pendentelite and future interest @ 22% per annum being the advance amount paid pursuant to the agreement for sale of the land measuring 5 Kathas 6 Chataks described in Schedule to the plaint, contending inter-alia that an agreement for sale was executed by the defendants' successor-in-interest, Prahallad Ch. Nath, on 7th April, 1992 (Exhibit-10) for sale of the said land in favour of the plaintiff/appellant for an amount of Rs. 1,07,500/- and out of the said amount, Rs. 50,000/- was paid as advance on the date of execution of the agreement and thereafter, another sum of Rs. 2,500/- was paid in cash to meet the necessary expenditure for obtaining the copies of the documents. It has further been contended that though under the said agreement, the defendants promised to execute the deed of sale after obtaining permission from the competent authorities, within 5(five) months from the date of execution of the agreements for sale, the plaintiff after receipt of the copies of the Jamabandi from the defendants could notice that the land for which such agreement was entered into does not belong to the defendants alone as there were other pleaders, namely Padmaluchan Nath and Ramesh Ch. Nath, who are the brothers of the defendants' predecessor-in-interest. According to the plaintiff, since the defendants have no clear title over the property, he asked the defendants for refund of the said amount, which having not been done, the suit has been instituted. The plaintiff also in the plaint has averred that after the said initial agreement dated 7th April, 1992, another agreement for sale was executed on 4th May, 1992 (Exhibit-2), which was registered. The plaintiff also in the plaint has averred that after the said initial agreement dated 7th April, 1992, another agreement for sale was executed on 4th May, 1992 (Exhibit-2), which was registered. According to the plaintiff, the same was executed for the purpose of taking loan from his employer, namely Oil and Natural Gas Corporation Limited. 2. The defendants on receipt of the summons entered appearance and contested the suit by filing the joint written statement denying the claim of the plaintiff relating to not having clear title over the property. The defendants, however, admitting the receipt of the amount of Rs. 50,000/- out of the contract amount of Rs. 1,07,500/- for transfer of the land described in the schedule. It has been contended that pursuant to the agreements for sale, both dated 7th April, 1992 and 4th May, 1992, the defendants applied for permissions from the competent authorities, namely the Development Authority and the Municipal Authority and accordingly, the permissions were granted by the Municipal Authority and the Development Authority vide Exhibit-G/3 and Exhibit-G/4, respectively, and since the plaintiff despite intimating him about obtaining such permission did not pay the balance amount under the contract, the said amount of Rs.50,000/- paid in advance has been forfeited in view of the clause in Exhibit-2 and Exhibit-10 documents. It has also been contended that as the plaintiff has failed to pay the amount, the suit land was transferred by the defendants in favour of another person at much lesser price than the price at which it was contracted between the plaintiff and the defendants. 3. The Trial Court on the basis of the pleadings of the parties framed the following issues for determination :- (1) Is there any cause of action for the suit? (2) Is the suit is maintainable in the present form and manner? (3) Is the plaintiff is entitled to get refund the earnest money? (4) Whether earnest money is liable to be forfeited? (5) Whether the plaintiff is entitled to a decree as prayed for? 4. While the plaintiff in support of his case examined 4(four) witnesses and exhibited 19(nineteen) documents, the defendants examined 5(five) witnesses and proved Exhibit-A to Exhibits-G/1 to G/4. 5. (4) Whether earnest money is liable to be forfeited? (5) Whether the plaintiff is entitled to a decree as prayed for? 4. While the plaintiff in support of his case examined 4(four) witnesses and exhibited 19(nineteen) documents, the defendants examined 5(five) witnesses and proved Exhibit-A to Exhibits-G/1 to G/4. 5. The Trial Court upon appreciation of the evidences on record and upon hearing the parties has decided the issue Nos.1 and 2 in favour of the plaintiff and the issue Nos.3, 4 and 5 against him. Hence, the present appeal. 6. I have heard Mr. M.H. Rajborbhuiyan, learned counsel for the appellant and Ms. P. Bora, learned counsel appearing for the respondents. 7. Referring to the depositions of witnesses recorded in the suit as well as the documents exhibited, it has been submitted by the learned counsel for the appellant/plaintiff that since the appellant/plaintiff could prove that the defendants did not have clear title over the property, in respect of which the contract of sale was entered into vide Exhibit-2 and Exhibit-10 documents, and accordingly, the defendants were informed by the plaintiff by registered notice, the plaintiff is entitled to refund of the amount advanced pursuant to such contract of sale, namely Rs. 52,500/- with interest. The learned counsel further submits that at the time of execution of the Exhibit-2 and Exhibit-10 contracts for sale of the schedule land, the defendants never informed the plaintiff about the mutual partition of the land affected by deed dated 10th November, 1990, amongst all the heirs, as it appears from the Jamabandi, which was furnished by the defendants to the plaintiff on being asked, that the defendants are not the sole owners of the land described in the schedule to the plaint and hence, the Trial Court ought to have decreed the suit of the plaintiff for refund the amount advanced. 8. 8. Per contra, the learned counsel appearing for the defendants placing reliance on the depositions of witnesses and also the documents proved and marked as exhibits submits that under the contract for sale executed on 4th May, 1992 (Exhbit-2) though the plaintiff is to pay the balance amount within 1(one) month of obtaining the permission from the competent authority for transfer, as he despite receipt of the information from the defendants relating to the permission granted by the authority vide Exhibit-G/3 and Exhibit-G/4, did not pay the balance amount and thereby did not perform his part of the contract, the advance amount of Rs. 50,000/- paid stands forfeited in terms of the contract. 9. I have considered the submissions advanced by the learned counsel appearing for the parties and also perused the evidences adduced by the parties, both oral and documentary, apart from the pleadings of the parties. 10. It is not in dispute that a contract for sale of the land described in the schedule was entered into between the defendants and the plaintiff initially on 7th April, 1992 (Exhibit-10). The said document was unregistered. Thereafter, another contract for sale was executed between the parties on 4th May, 1992 (Exhibit-2), which has been registered under the provisions of the Indian Registration Act, 1908. By such agreements, the defendants agreed to transfer the land in question in favour of the plaintiff, provided the plaintiff pays the balance amount of Rs. 57,500/- to the defendants within 1(one) month from the date of obtaining the required permission from the competent authorities, responsibility of which was cast under the contract on the defendants. Exhibit-G/3 and G/4 are the permissions granted by the Development Authority as well as by the Municipal Authority for transfer of the land alongwith holding thereon by the defendants in favour of the plaintiff. Such permissions were granted on the basis of the application filed by the defendants pursuant to the agreement dated 4th May, 1992 (Exhbit-2). 11. The defendants also proved the family partition of the ancestral property made by Exhibit-E document dated 10th November, 1990. The defendants also could prove by adducing evidence that the copy of the said document was also furnished to the plaintiff at the time of execution of the agreements for sale dated 7th April, 1992 and 4th May, 1992. 11. The defendants also proved the family partition of the ancestral property made by Exhibit-E document dated 10th November, 1990. The defendants also could prove by adducing evidence that the copy of the said document was also furnished to the plaintiff at the time of execution of the agreements for sale dated 7th April, 1992 and 4th May, 1992. The plaintiff, on the other hand, during cross-examination has admitted that though he applied for loan from his employer for purchase of the land in question, after execution of the Exhibit-2 agreement for sale dated 4th May, 1992, he, however, could not get the loan. Though the plaintiff has taken the plea in the plaint that he, from the certified copy of the Jamabandi furnished by the defendants, containing the names of all the share holders and where there is no indication of mutual partition, came to know that the defendants do not have clear title over the property, the evidences adduced by the parties give credence to the version of the defendants about informing the plaintiff relating to the family partition in writing affected on 10th November, 1990 amongst all the heirs and their title over the land described in the schedule to the plaint. 12. As noticed above, Exhibit-2 and Exhibit-10 agreements for sale contain a clause of forfeiture of the amount advanced by the plaintiff, in the event he fails to perform his part of the contract, i.e. payment of the balance contracted amount, i.e. Rs. 57,500/-. The plaintiff, as noticed above, has admitted during his cross-examination that he could not obtain the loan from the employer despite the application filed for that purpose. Admittedly, he did not offer the balance amount of Rs. 57,500/- to the defendants, despite receipt of the information relating to the grant of permission from the competent authority for sale of the land in question by the defendants in favour of the plaintiff. The plaintiff, therefore, having failed to perform his part of the contract, is not entitled to refund of the said amount, in view of the clause in the contract for sale for forfeiture of the amount advanced. The plea taken by the plaintiff about the defendants having no clear title over the land in question is only to avoid the forfeiture clause in the agreements for sale. 13. The plea taken by the plaintiff about the defendants having no clear title over the land in question is only to avoid the forfeiture clause in the agreements for sale. 13. In view of what has been discussed above, I do not find any merit in the appeal and hence the same is dismissed. No costs. The Registry is directed to send down the records. Appeal dismissed.