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2014 DIGILAW 315 (CAL)

Sashi Devi Agarwala v. R. C. Estate Private Ltd.

2014-04-03

DEBANGSU BASAK

body2014
Judgment : Debangsu Basak, J. The plaintiff sought a decree for specific performance of an agreement dated August 20, 1995. According to the plaintiff, the agreement dated August 20, 1995 was for sale of entire ground floor measuring approximately 1717.95 sq. ft. and two garage spaces in the building constructed at premises No. P-39, C.I.T. Scheme, Manicktala Main Road, Kolkata. The agreement for sale between the plaintiff and the defendants was verbal. The defendant No. 2 was the owner of the suit premises. The Defendant No. 1 was the developer. The Defendant Nos. 3 and 4 were the directors of the Defendant No. 1 and partners of the Defendant No. 2. The Defendant Nos. 3 and 4 were also related to the plaintiff. According to the plaintiff on August 28, 1995 she paid a sum of Rs.1 Lakh to the Defendant No. 1. Upon receipt of such payment the plaintiff was given possession of the entire ground floor and the two garage spaces at the said premises. A certificate of possession was issued. The plaintiff during the period September 28, 1995 and January 2, 1997 paid the balance consideration of Rs.20 Lakhs to the Defendant No. 1. All payments were made by cheques. The Defendant No. 1 duly acknowledged receipt of such payments. After the plaintiff was put into possession of the suit property, she obtained supply of electricity thereat. The plaintiff was using the flat and the garage for the purpose of carrying on business therefrom. The plaintiff obtained a trade license to carry on business from the suit property. Since the plaintiff paid the entire consideration she was entitled to a conveyance executed and registered in her favour for the flat and the garages by the defendants. However, the defendants in spite of repeated requests did not do so. According to the plaintiff, the defendants refused to execute the deed of conveyance in or about December 1998. The plaintiff, thereafter, filed the instant suit. A written statement was filed on behalf of the Defendants. The agreement for sale was admitted. The date of the agreement was disputed. It was, however, contended by the defendants that the agreement was for the sum of Rs. 25 lakhs and not Rs.21 Lakhs as claimed by the plaintiff. According to the defendants, they received a sum of Rs. 17 Lakhs only. The agreement for sale was admitted. The date of the agreement was disputed. It was, however, contended by the defendants that the agreement was for the sum of Rs. 25 lakhs and not Rs.21 Lakhs as claimed by the plaintiff. According to the defendants, they received a sum of Rs. 17 Lakhs only. The plaintiff was required to pay a sum of Rs.8 lakhs along with interest at the rate of 18% per annum. The defendants relied on a chart being Annexure ‘A’ to the written statement showing the particulars of the cheques received. A sum of Rs. 17 Lakhs was acknowledged by the defendants to be received from the plaintiff in such chart. The plaintiff examined herself as the only witness. Few documents were marked as exhibits. The certificate of possession by which the defendants put the plaintiff into possession of the suit premises was marked as Exhibits ‘C’. The statement of the Bank account of the plaintiff through which payments were made by the plaintiff to the defendant was marked as Exhibit ‘B’. The plaintiff established that, there was an agreement for sale. There was a dispute as to the date on which such agreement for sale was entered into as also the quantum of the sum payable by the plaintiff to the defendants. In the written statement, the defendants admitted that, there was a verbal agreement entered into between the parties for the purpose as stated in the plaint. However, the defendant stated that the agreement for sale was in respect of a shop room in the ground floor without any garage. According to the defendants the same would appear from the certificate of possession. The defendants also claimed that, the consideration was Rs.25 lakhs and not Rs.21 Lakhs as claimed by the plaintiff. None came forward from the defendants to contradict the plaintiff in evidence. The plaintiff established that, the agreement for sale was for the sum of Rs.21 Lakhs. The plaintiff paid such sum by account payee cheques. The Bank statement disclosed by the plaintiff being Exhibit ‘B’ read with Annexure ‘A’ to the written statement amply demonstrated that the plaintiff paid the entire consideration of Rs.21 Lakhs to the defendants. The plaintiff established that, the agreement for sale was for the sum of Rs.21 Lakhs. The plaintiff paid such sum by account payee cheques. The Bank statement disclosed by the plaintiff being Exhibit ‘B’ read with Annexure ‘A’ to the written statement amply demonstrated that the plaintiff paid the entire consideration of Rs.21 Lakhs to the defendants. The plaintiffs were also in possession of the area claimed by them as would appear from the possession certificated been annexed Exhibit ‘C’ as also from the fact that they were in actual physical possession with the defendants not taking any steps against the plaintiff. In the event the version of the agreement pleaded by the defendants was correct, then the plaintiff was in possession of area beyond the agreed portion. The possession prior to 1999 with the defendants not taking steps with regard to such excess occupation by the plaintiff. The version of the agreement pleaded by the defendants, therefore, could not be relied upon. Having paid the entire consideration the plaintiff was entitled to a deed of conveyance being executed and registered in her favour by the defendants as prayed for by the plaintiff. The plaintiff will, therefore, be entitled to a decree in terms of prayer (b) of the plaint. The defendants will execute such conveyance and shall present the conveyance for registration within 4 weeks from the date of requirement to do so by the plaintiff. In default of the defendants or any of them executing and presenting the deed of conveyance within the time specified, the Registrar, Original Side of this Hon’ble Court will execute and register the deed of conveyance in favour of the plaintiff for and on behalf of such defendant or defendants as the case may be in respect of the suit premises mentioned in Annexure ‘A’ of the plaint. All costs, expenses, charges and stamp duty in that respect shall be borne by the plaintiff. C.S. No. 347 of 1999 is decreed accordingly. The Department is directed to draw up the decree expeditiously.