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2013 DIGILAW 12 (TRI)

Mahendra Kumar Roy v. Niranjan Malakar

2013-07-08

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. On the following substantial questions of law, this second appeal has been admitted for hearing:-- I. Whether the learned Courts below committed illegality in not holding that the transfer of some of the suit property during the pendency of the suit in question are hit by section 52 of the Transfer of Property Act, 1882? II. Whether the learned lower Courts have overlooked the provisions of explanation to section 10 of the Specific Relief Act, 1963? Heard learned counsel, Mr. D. Bhattacharjee for the appellant and learned counsel, Mr. D.K. Biswas for the respondents. 2. The appellant as plaintiff instituted Title Suit No. 39 of 1989 in the Court of learned Civil Judge, Sr. Division, North Tripura at Kailashahar praying for a decree of specific performance of contract against defendant-respondent No. 1 Niranjan Malakar for the suit land mentioned in the schedule of the plaint 3. The case of the plaintiff, in short, is that the respondent No. 1 Niranajan Malakar proposing to sell land measuring 13 gandas, described in the schedule of the plaint, had entered into an agreement with the plaintiff-appellant on 08.01.1989 and settled to sell the land at a price of Rs. 54,625/- and received an advance of Rs. 8,805/-. An agreement in writing was signed by the parties. It was stipulated that within 3 months, the plaintiff-appellant will tender the rest amount and on receipt of the amount, the respondent will execute the sale deed for the suit land. The plaintiff-appellant repeatedly tendered the money but the defendant-respondent No. 1 did not execute the sale deed. On the contrary, the defendant respondent No. 1 sold out a part of the suit land to defendant respondent No. 3 Nirmal Malakar and his father, since deceased, Nirode Behari Malalkar and handed over possession of a part of the suit land to those purchasers. Since the defendant-respondent No. 1 failed to execute the sale deed in terms of the agreement, the plaintiff-appellant instituted the suit for decree of specific performance of contract. 4. Defendant-respondent No. 1 contested the suit inter alia, contending that the suit land was a path way for the entry in the house of the defendant-respondent No. 1 and the defendant respondent No. 1 did not really intend to sell the suit land described in the deed of agreement and the defendant also denied such agreement of sale. 5. 4. Defendant-respondent No. 1 contested the suit inter alia, contending that the suit land was a path way for the entry in the house of the defendant-respondent No. 1 and the defendant respondent No. 1 did not really intend to sell the suit land described in the deed of agreement and the defendant also denied such agreement of sale. 5. Considering the pleadings of the parties, the learned Civil Judge framed the following issues:-- (i) Whether there is any cause of action? (ii) Whether there was at all any contract between the Plaintiff and the Defendant in regard to subject matter of this suit? (iii) Whether the contract as alleged in the plaint is at all enforceable? (iv) Whether the suit is bad for non-joinder of party? (v) Whether the alleged Chuktipatra dated 8.1.1989 as mentioned in the plaint is a genuine document or a fraudulent and anti dated and manipulated document? (vi) Whether the plaintiff was ready and willing to fulfill his part under the alleged contract? (vii) Whether the plaintiff is entitled to get the decree as prayed for? (viii) To what other reliefs the parties are entitled? Additional Issue No. I. Whether the sale deed dated 13.6.89 executed by defendant No. 1 in favour of defendant No. 3 and his father (now late) is void and liable to be delivered up? 6. The plaintiff-appellant examined himself as P.W. 1 and also examined another witness namely P.W. 2 Umesh Ch. Debnath and proved deed of agreement of sale as Exbt. 3. Defendant-respondent No. 1 has examined' himself as D.W. 1. 7. The trial Court considering the pleadings and the evidence on record, decided all the issues in favour of the plaintiff and accordingly decreed the suit in favour of the plaintiff-appellant. 8. Challenging the judgment and decree, the defendant-respondent No. 1 preferred Title Appeal No. 38 of 99 before the Court of learned District Judge, North Tripura, Kailashahar and the learned Addl. District Judge(Fast Track Court) by judgment dated 15.07.2003 allowed the appeal partly directing that the defendant shall return the advance money amounting to Rs. 8,805/- within a period of 60 days from the date of judgment with interest @ 4% over the amount w.e.f. 08.01.1989 and also directed to pay the cost of the suit. 9. Challenging the aforesaid judgment and decree, passed by the Appellate Court, the present second appeal has been filed. 10. 8,805/- within a period of 60 days from the date of judgment with interest @ 4% over the amount w.e.f. 08.01.1989 and also directed to pay the cost of the suit. 9. Challenging the aforesaid judgment and decree, passed by the Appellate Court, the present second appeal has been filed. 10. Learned counsel, Mr. Bhattacharjee has submitted that the appellate Court has agreed with the finding of the trial Court that there was an agreement between the plaintiff and the defendant No. 1 for the sale of the suit land at a price of Rs. 54,625/- and an advance of Rs. 8,805/- was paid by the plaintiff-appellant to the defendant-respondent No. 1 and the appellate Court also held that the agreement has been proved and the trial Court rightly passed the decree but misconstruing a line in the statement of the plaintiff-appellant directed that the amount paid by the plaintiff be returned by the defendant No. 1 and thereby interfered with the decree passed by the trial Court which is absolutely wrong and not tenable in law. 11. Learned counsel, Mr. Biswas or the contrary, has submitted that the suit land was a path way of the defendant respondent No. 1 and the defendant-respondent No. 1 did not intend to transfer the path way land which was wrongly described in the agreement. Since the plaintiff-appellant made a specific statement that in case the decree is not passed and the sale deed is not executed, the money advanced may be returned to him, the appellate Court considered that fact and directed to return the money advanced by the plaintiff. There is nothing wrong in the judgment and decree passed by the appellate Court and the appellate decree may be maintained. 12. Exbt. 3, the agreement of sale has been proved. Defendant No. 1 has admitted his signature in the document. It is proved that agreeing to sell the suit land, the defendant No. 1 received an advance of Rs. 8,805/-. So, the defendant was bound to execute the sale deed in the moment the plaintiff appellant tendered the rest of the amount as agreed. Section 10 of the Specific Relief Act prescribes thus:-- 10. It is proved that agreeing to sell the suit land, the defendant No. 1 received an advance of Rs. 8,805/-. So, the defendant was bound to execute the sale deed in the moment the plaintiff appellant tendered the rest of the amount as agreed. Section 10 of the Specific Relief Act prescribes thus:-- 10. Cases in which specific performance of contract enforceable.--Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-- (a) when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. Explanation.--Unless and until the contrary is proved, the court shall presume-- (i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and (ii) That the breach of a contract to transfer movable property can be so relieved except in the following cases:-- (a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market; (b) where the property is held by the defendant as the agent or trustee of the plaintiff. 13. In the case at hand, the agreement in question between the plaintiff-appellant and the defendant-respondent No. 1 was for transfer of immovable property. Both the Courts below held that the agreement has been prayed and I find nothing to arrive at a contrary finding. While the agreement was for transfer of immovable property, it is to be presumed that breach of contract to transfer the immovable property cannot be adequately relieved by compensation of money. The defendant-respondent No. 1 has failed to make out a case in support of his contention that he did not intend to sell the suit land. While the agreement was for transfer of immovable property, it is to be presumed that breach of contract to transfer the immovable property cannot be adequately relieved by compensation of money. The defendant-respondent No. 1 has failed to make out a case in support of his contention that he did not intend to sell the suit land. After the sale agreement was made, the defendant respondent No. 1 already sold out a portion of the suit land to defendant-respondent No. 3 and his father Nirode Behari Malakar, since deceased, and such sale abundantly proved that the claim of the defendant-respondent No. 1 that the suit land was needed for his egress and ingress in his house is an unfounded plea only to deprive the plaintiff-appellant from the suit land. 14. The First Appellate Court all through agreed with the finding of the trial Court but at the end picked up a line from the deposition of the plaintiff and held that the plaintiff will be satisfied if the advanced money is returned in case the sale deed is not executed. Unfortunately, the trial Court, in my considered opinion, picked up a particular line and utterly failed to read and construe the evidence of the plaintiff as a whole. Evidence must be read as a whole and there should not be an isolated scrutiny. The plaintiff made consistent statement from top to bottom that the defendant No. 1 had proposed to sell 13 gandas of land described in the schedule of the plaint and the price was settled at Rs. 54,625/- and an agreement was signed on 08.01.89 and the plaintiff paid an amount of Rs. 8,805/- as advance which the defendant Niranjan Malakar had received. As per agreement, he tendered the amount to the defendant with a request to execute the sale deed but the defendant did not execute the sale deed. He issued lawyer's notice but the defendant did not pay any heed, on the contrary, the defendant No. 1 sold out a portion of the suit land to other defendants i.e. Nirmal Malakar and Nirode Behari Malakar and he proved that sale deed also as Exbt. 2. He clearly stated in his deposition-- I pray for Kabala (sale deed). If I do not get the Kabala my advanced money may be returned. I was ready am ready to pay the balance money stated in the agreement. 2. He clearly stated in his deposition-- I pray for Kabala (sale deed). If I do not get the Kabala my advanced money may be returned. I was ready am ready to pay the balance money stated in the agreement. This statement of the plaintiff can in no way be construed that the plaintiff did not want a sale deed as per the agreement and that he wanted the money advanced by him to be returned to him. He simply stated that if he did not get the Kabala, his money must be returned, that means in case it is decided that he is not entitled to get the Kabala i.e. the sale deed, the money advanced by him should be returned and that was an innocent and legitimate claim of the plaintiff. While he is entitled to get the sale deed to be executed by the defendant No. 1, and, while that has been decided by the trial Court, the appellate Court was absolutely wrong in arriving at a contrary finding and depriving the plaintiff from the benefit of the agreement. The observation of the First Appellate Court in para 7 of the judgment that the plaintiff-respondent admitted that the amount of advance may be returned in case the other side fail to execute the sale deed is absolutely wrong and misleading finding and therefore, the judgment and decree passed by the First Appellate Court cannot stand. 15. Learned Counsel, Mr. Bhattacharjee has submitted that out of the suit land, the defendant-respondent No. 1 already sold out a portion to the defendant No. 3, Nirmal Malakar and his deceased father Nirode Behari Malakar and the trial Court has arrived at a finding that the sale was justified. The plaintiff does not like to challenge that part of the finding and therefore, he does not like to insist on substantial question of law No. 1. It is submitted by Mr. Bhattacharjee that the plaintiff will be satisfied if he get the suit land as per the decree made by the trial Court. 16. Ordinary rule is that specific performance should be granted. It can be refused when equitable considerations warrant it and circumstances show that damages would constitute an adequate relief. It is submitted by Mr. Bhattacharjee that the plaintiff will be satisfied if he get the suit land as per the decree made by the trial Court. 16. Ordinary rule is that specific performance should be granted. It can be refused when equitable considerations warrant it and circumstances show that damages would constitute an adequate relief. In the present case, there was an agreement signed between the plaintiff-appellant and the defendant-respondent No. 1 and the defendant-respondent No. 1 received the advance agreeing to sell the suit land and for no adequate reason, defendant-respondent No. 1 refused to execute the sale deed though the plaintiff-appellant tendered the rest of the agreed amount asking for execution of the sale deed. The defendant-respondent No. 1 deliberately did not execute the sale deed and went back to the agreement having no justifying reason for it Return of the advanced money to plaintiff or fixing of any damage on the defendant-respondent No. 1 cannot be an adequate relief for the plaintiff-appellant. 17. The judgment and order, passed by the learned Addl. District Judge (First Track Court), Kailashahar i.e. the First Appellate Court, in T.A. No. 38 of 1999, is set aside and the judgment and decree, passed by the learned Civil Judge, Sr. Division, Kailashahar in T.S. 39 of 1989 is restored and upheld. 18. The appeal is accordingly allowed with cost. Send back the L.C. records along with a copy of this judgment.