Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 404 (ORI)

Sasmita Dash v. Dhirendra Narayan Acharya

2015-07-10

B.K.NAYAK

body2015
JUDGMENT : B.K. Nayak, J. 1. In this appeal the appellant challenges the judgment dated 17.11.2012 passed by the Additional Civil Judge (Senior Division), Puri in C.S. No.8/632 of 2012/2009. The plaintiff-appellant filed the aforesaid suit against defendant No.1 for specific performance of contract of sale. The plaintiff's case is that defendant No. 1 is the owner of the suit land with a house standing thereon which has been let out to different tenants. The plaintiff and her husband were staying on rent on the backside of the suit house and looking after the house on behalf of defendant No. 1, who is a resident of Cuttack and casually visits the suit property. Defendant No. 1 having decided to sell the property asked the plaintiff's husband to arrange a buyer. The plaintiff offered to purchase the suit property and accordingly an oral agreement was reached between the plaintiff and defendant No. 1 on 07.11.2009 for sale of the suit property in favour of the plaintiff for a consideration of Rs. 35,00,000/- and on the date of agreement advance consideration of Rs. 1,50,000/- was paid to defendant No. 1. It was stipulated that the balance consideration would be paid within a month at the time registration of the sale deed. It is the further case that the plaintiff after collecting balance consideration requested defendant No. 1 to execute the sale deed, but the latter played hide and seek, even though the plaintiff was always ready and willing to perform her part of the contract. Finding no other alternative, the plaintiff filed the suit for specific performance of contract for sale. During the pendency of the suit, defendant No. 1 sold the suit property in favour of defendant No. 2 by registered sale deed dated 05.04.2010. 2. Defendant No. 1 filed a written statement denying the oral agreement of sale with the plaintiff and receipt of earnest money of Rs. 1,50,000/- on the date of the agreement, i.e., 07.11.2009. It was specifically stated by him that the plaint averments are false, frivolous and baseless. It was also stated that the suit was not maintainable in view of Section 17 of Indian Registration Act read with Section 55(d) of the Transfer of Property Act. 3. Defendant No. 2 filed a written statement denying the plaint averments. It was specifically stated by him that the plaint averments are false, frivolous and baseless. It was also stated that the suit was not maintainable in view of Section 17 of Indian Registration Act read with Section 55(d) of the Transfer of Property Act. 3. Defendant No. 2 filed a written statement denying the plaint averments. It was stated by him that after making due enquiry he purchased the suit property from defendant No. 1 at a consideration of Rs. 40,00,000/- and was delivered with possession and, therefore, he has acquired valid right and title over the suit property. 4. On the basis of the pleadings of the parties, the trial court framed live issues, out of which Issue No. 3 is "whether there is a concluded contract between the plaintiff and defendant No. 1 for sale of the suit property in favour of the plaintiff." The plaintiff examined four witnesses including herself as P.W. 3. P.W. 4 is the husband of the plaintiff whereas P.Ws. 1 and 2 are two independent witnesses. Defendant Nos. 1 and 2 examined themselves as D.Ws. 2 and 1 respectively. Apart from the oral evidence, the parties also exhibited some documents. On consideration of the evidence, the trial court came to the conclusion that there was no acceptable proof of a concluded contract of sale between the plaintiff and defendant No. 1 and accordingly it dismissed the suit. 5. In assailing the impugned judgment, the Senior Counsel for the plaintiff-appellant submitted that even though there was no written agreement of sale, the oral evidence led by the plaintiff clearly prove oral agreement for sale and that the trial court has not considered the evidence on record in its proper perspective and, therefore, the impugned judgment is liable to be set aside. Learned counsel for defendant No. 1-respondent No. 1, on the other hand, submits that the trial court has well appreciated the evidence and rightly disbelieved the plaintiff's plea of oral agreement to sell and, therefore, the impugned judgment warrants no interference. 6. Admittedly, there is no written agreement of sale of the suit property between the plaintiff and defendant No. 1. The plaintiff also does not claim delivery of possession of the suit property in her favour in pursuance of the sale agreement. 6. Admittedly, there is no written agreement of sale of the suit property between the plaintiff and defendant No. 1. The plaintiff also does not claim delivery of possession of the suit property in her favour in pursuance of the sale agreement. It is, therefore, necessary to assess the evidence in order to find out whether the plaintiff has succeeded in proving the oral contract of sale. Since the contract is alleged to be oral one, the burden is heavy on the plaintiff to prove the oral contract, as has been rightly held by the trial court. 7. In their evidence in chief, P.Ws. 1 and 2, who are two outsiders, have stated that defendant No. 1 having asked the plaintiff and her husband to arrange buyer for the suit property, the plaintiff offered to purchase the same and accordingly an oral agreement was reached between the plaintiff and defendant No. 1 for sale of the property in favour of the plaintiff after due discussion on 07.11.2009 and the consideration amount was fixed at Rs. 35,00,000/- and on the same day in presence of P.Ws. 1 and 2, the plaintiff paid Rs. 1,50,000/- to defendant No. 1 as part consideration and agreed to pay the rest amount within one month at the time of registration of the sale deed. In his cross-examination P.W. 1 has however stated that he had not participated in the discussion on the date of the oral agreement, nor he ascertained the persons present during such discussion. He has further stated that for the first time in November, 2009, he came to know about the agreement for sale of the suit property between the plaintiff and defendant No. 1 and that two days prior to the payment of advance consideration he came to know about the agreement. It is therefore clear from his cross-examination that P.W. 1 was not present on the date of alleged oral agreement for sale. His evidence in cross-examination also falsifies the plaintiff's case that payment of advance consideration was made on the date of the oral agreement. P.W. 2 in his cross-examination stated that on 7.11.2009 for the first time he came to know that the suit property was going to be sold to the plaintiff and that 10 to 15 days prior thereto the discussion and negotiation between the plaintiff's husband and defendant No. 1 had been completed and finalized. P.W. 2 in his cross-examination stated that on 7.11.2009 for the first time he came to know that the suit property was going to be sold to the plaintiff and that 10 to 15 days prior thereto the discussion and negotiation between the plaintiff's husband and defendant No. 1 had been completed and finalized. This evidence of P.W. 2 also makes it clear that he was not present at the time of discussion and negotiation and the finalization of the oral agreement between the plaintiff and defendant No. 1. His evidence further makes it clear that there was no agreement for sale on 07.11.2009. The plaintiff being examined as P.W. 3 in her cross-examination has stated that one month prior to 07.11.2009, defendant No. 1 had given her offer of sale, but she could not state the exact date on which the offer was given. Contrary to the evidence of P.Ws. 1 and 2, P.W. 3 stated in her cross-examination that one month prior to 07.11.2009 the negotiation with regard to fixation of consideration money was finalized. Therefore, there is no consistency in the evidence of P.Ws. 1, 2 and 3 with regard to the actual date of agreement between the plaintiff and defendant No. 1. It is also stated by P.W. 3 in her cross-examination that one month after the finalization of the oral agreement the advance consideration of Rs. 1,50,000/- was paid to defendant No. 1, which is contrary to the plaintiff's own pleadings. The plaintiff and her husband have stated in their evidence that they have passed B.A. and, therefore, they are well educated persons. Admittedly, the agreement for sale was not reduced to writing, nor even a receipt was obtained from defendant No. 1 towards payment of part consideration of Rs. 1,50,000/- to him. It does not stand to reason that merely because of mutual trust between them the plaintiff did not insist upon execution of a written agreement or a money receipt towards payment of part consideration. P.W. 3 has stated in her cross-examination that she had the full consideration amount of Rs. 35,00,000/- along with money to meet the expenses for registration of a sale deed on the date of discussion and finalization of the agreement for sale. P.W. 3 has stated in her cross-examination that she had the full consideration amount of Rs. 35,00,000/- along with money to meet the expenses for registration of a sale deed on the date of discussion and finalization of the agreement for sale. She has however explained that on the date of oral agreement defendant No. 1 was not ready to take the full consideration, which sounds highly improbable that defendant No. 1, who was so eager to sell the property and finalized the consideration amount, refused to receive the entire consideration and execute the sale deed in favour of the plaintiff. P.W. 4, the husband of the plaintiff has also stated in his cross-examination that he and his wife had the full consideration amount of Rs. 35,00,000/- with them on the date of settlement of consideration. The money was in their bank accounts. The plaintiff had the bank account at Canara Bank, Grand Road, Puri and his wife had account at the Co-operative Bank. On the next breath, he has however stated that on the date of settlement of consideration money for the proposed sale he had only Rs. 50,000/- to Rs. 60,000/- in his account and his wife had about Rs. 40,000/- in her account. This evidence of P.W. 4 makes it clear that on 07.11.2009, which is alleged to be the date of the oral agreement, the plaintiff was not in possession of Rs. 1,50,000/- to be paid to defendant No. 1 as advance consideration. 8. From the evidence of P.W. 3, it transpires that prior to her marriage, her husband (P.W. 4) was working as a Mechanical Assistant in the Birla Tyres, Balasore and he left that service soon after his marriage and that thereafter they are earning their livelihood from the landed properties of P.W. 4. P.W. 3 is however unable to state the extent of landed property owned by her husband's family or the amount of income derived therefrom. It is admitted by her that they are not filing Income Tax Return. It is thus clear that the plaintiff had no appreciable source of income and savings, so as to be capable of arranging a huge sum of Rs. 35,00,000/- for purchasing the property in question. The evidence also manifests the plaintiffs lack of continuous readiness and willingness to perform her part of the contract. It is thus clear that the plaintiff had no appreciable source of income and savings, so as to be capable of arranging a huge sum of Rs. 35,00,000/- for purchasing the property in question. The evidence also manifests the plaintiffs lack of continuous readiness and willingness to perform her part of the contract. Even though the plaintiff (P.W. 3) has stated that she was all along ready and willing to perform her part of the contract, admittedly she has never issued a single notice to defendant No. 1 calling upon him to receive the balance consideration amount and execute and register the sale deed in her favour, although she and her husband have stated that they had gone from Puri to Cuttack with the balance consideration money to be given to defendant No. 1 at Cuttack without prior appointment and found him absent at home. Had there really been an agreement for sale and payment of part consideration amount, the plaintiff would not have failed to issue a notice to defendant No. 1 showing her readiness and willingness and demanding performance on part of defendant No. 1. Non-service of a written notice to defendant No. 1 is a strong circumstance in negation of the plea of contract of sale. In the light of the discussions made above, this Court has no option than to agree with the finding of the trial court that the plaintiff has failed to prove the oral agreement between her and defendant No. 1 for sale of the property. Therefore, the appeal is devoid of merit and accordingly dismissed with costs.