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2015 DIGILAW 468 (GAU)

Azmat Ali v. Abdul Sakkur Barbhuiyan

2015-04-22

A.K.GOSWAMI

body2015
JUDGMENT : Arup Kumar Goswami, J. 1. The case was taken up for hearing on 21.4.2015 and Ms. T. Goswami, learned counsel for the appellant had argued the matter substantially. None had appeared for the respondent despite the names of the counsel being shown in the cause-list. On the prayer of Ms. T. Goswami to take up the matter again in order to enable her to place some case laws, it was observed in the order dated 21.4.2015 that the case be called today again. Ms. Goswami has argued the matter today by placing reliance in the case of Govind Prasad Chaturvedi vs. Hari Dutt Shastri and Anr., reported in AIR 1977 SC 1005 . 2. There is no representation on behalf of the respondent today also. 3. This appeal is filed by the plaintiff against the judgment and decree dated 29.10.2003 passed by the learned District Judge, Cachar, Silchar in Title Appeal No. 7/2002 dismissing the appeal and affirming the judgment and decree dated 5.8.2002 passed by the learned Civil Judge (Senior Division) No. 1, Cachar, Silchar in Title Suit No. 27/1998. 4. The plaintiff filed a suit for specific performance of contract praying-(a) for a decree directing the defendant to execute and register a deed of sale in the name of the plaintiff in respect of the suit land on receipt of the balance consideration amount of Rs. 12,000/- from the plaintiff within the time fixed by the Court and to deliver its khas possession to the plaintiff; (b) for execution and registration of the deed of sale in the name of the plaintiff in respect of the suit land through court after deposit of the balance amount of consideration in the court and to get khas possession of the suit land through the court in case the defendant fails to comply with the direction of (a) above; (c) for cost of the suit and (d) for such other relief/reliefs as the court may consider fit and proper. 5. The case of the plaintiff is that the defendant proposed to sell the suit land measuring, in total, 2 bighas 8 kathas 12 lechas and 18 gondas under various dags and pattas of Seutigram Part II, Pargana-Bikrampur of Cachar district and accordingly, Rs. 28,000/- was settled as the consideration amount and the defendant took Rs. 5. The case of the plaintiff is that the defendant proposed to sell the suit land measuring, in total, 2 bighas 8 kathas 12 lechas and 18 gondas under various dags and pattas of Seutigram Part II, Pargana-Bikrampur of Cachar district and accordingly, Rs. 28,000/- was settled as the consideration amount and the defendant took Rs. 16,000/- in cash on 8.8.1997 as advance towards the consideration amount and executed a Deed of Bainanama (Deed of Agreement). The defendant agreed and promised that he would obtain necessary sale permission from the authorities and he would execute and register a deed of sale and deliver possession to him on receipt of the balance consideration amount within the last day of Falguna, 1304 B.S., corresponding to 14.3.1998, after obtaining necessary sale permission from the authority. The defendant further agreed and promised that in case he fails to execute and register the sale deed in the manner and within the time stated above, the plaintiff would be entitled to get the sale deed executed, registered and also to get the possession thereof through the court. It is further pleaded that the plaintiff offered the balance consideration amount several times to the defendant and the last such offer was made on 1.3.1998 with a request to execute and register the sale deed and to deliver possession but the defendant, on one pretext or the other, avoided to abide by the terms and conditions of the Bainanama compelling the plaintiff to file the suit. 6. In the written statement filed by the defendant, in Paragraph 15, it was stated that the plaintiff was unable to perform his part of the contract. The plaintiff undertook to obtain a 'No Objection Certificate for Sale' from the Deputy Commissioner, Cachar but as he was unable to purchase, the plaintiff did not submit his application. The plaintiff gave a go-bye to purchase the land for his own inability and the plaintiff never exercised his claim to purchase the land within the stipulated period where time was the essence of the contract and after expiry of the period, the suit was filed in order to harass the defendant. 7. During the course of trial, the plaintiff examined himself and the defendant also examined himself. No other witnesses were examined on behalf of the parties. 8. The following issues were framed by the learned trial court:- "1. 7. During the course of trial, the plaintiff examined himself and the defendant also examined himself. No other witnesses were examined on behalf of the parties. 8. The following issues were framed by the learned trial court:- "1. Is there any cause of action? 2. Is the suit maintainable? 3. Is the suit barred by limitation? 4. Is the suit bad for estoppel, waiver and acquiescence? 5. Whether the suit is barred under the provisions of C.P.C. and Specific Relief Act? 6. Whether the plaintiff is entitled to decree? 7. To what relief, the plaintiff is entitled to?" 9. Issue Nos. 1 to 5 were decided in favour of the plaintiff and issue Nos. 6 and 7 were decided against the plaintiff. The Deed of Agreement dated 8.8.1997 was exhibited as Ext. 1 by the plaintiff and the learned trial court, on perusal of the Paragraph 15 of the written statement, held that it is clear that the defendant had admitted execution of Ext. 1. The plaintiff had also exhibited the No Objection Certificate granted for effectuating the sale as Ext. 4, which is dated 5.2.1998. The learned trial court accepted Ext. 4 to be an admissible document, which was obtained at the instance of the defendant. The learned trial court held that except mere statement of the plaintiff that he demanded execution of the sale deed, there is no evidence to show that the plaintiff offered balance consideration amount within the stipulated time and thus, the plaintiff had failed to prove exercise of his option within the stipulated time and had failed to prove readiness and willingness to perform his part of the contract. Accordingly, the suit was dismissed. 10. The learned lower appellate court held that it was for the plaintiff/appellant to discharge his onus by proving the factum that the plaintiff had actually offered the balance amount of consideration money within the stipulated time and the learned lower appellate court concurred with the finding of the learned trial court that the plaintiff could not prove the fact that he had offered the balance sum of money and performed his part of the contract within the stipulated time and accordingly, dismissed the appeal. 11. 11. By an order passed by this Court on 16.3.2004, this second appeal was admitted for hearing on the following substantial questions of law:- "(a) Whether the judgment of the learned District Judge is in accordance with law and specially with the law laid down by the Hon'ble Supreme Court in the case of Santosh Hazari vs. Purusottam, (2001) 3 SCC 179 and the judgment is liable to be set aside on this count alone? (b) Whether the judgments of the learned courts below are perverse as the evidence of the plaintiff (P.W. 1) was not considered? (c) Whether the learned courts below were right in holding that the time was the essence of the contract in the present case? (d) Any other substantial questions of law which may be permitted by the Court to be raised at the time of hearing?" 12. Ms. Goswami has submitted that though the judgment of learned lower appellate court is of affirmation, it did not reflect conscious application of mind and the appellate court did not discharge the duty cast on it as a court of first appeal. She has placed reliance in the case of Santosh Hazari (Supra). It is further submitted that judgments of the learned courts below are perverse as the evidence of P.W. 1 was not considered and further, the courts below committed error of law in holding that time was the essence of the contract in the present case. The learned counsel submits that in the evidence of P.W. 1, he had stated that he had offered balance amount of consideration to the defendant on 1.3.1998, that is to say, within the stipulated period of time. By relying upon Govind Prasad (supra), the learned counsel submits that time is not the essence of contract in case of sale of land. 13. I have considered the submissions of Ms. Goswami, learned counsel for the appellant and also perused the materials on record. 14. In the instant case, no issue was framed with regard to whether time was the essence of the contract though the defendant had specifically pleaded in the written statement that time was the essence of the contract. 15. 13. I have considered the submissions of Ms. Goswami, learned counsel for the appellant and also perused the materials on record. 14. In the instant case, no issue was framed with regard to whether time was the essence of the contract though the defendant had specifically pleaded in the written statement that time was the essence of the contract. 15. In Santosh Hazari (supra), the Apex Court had laid down that judgment of the appellate court must reflect conscious application of mind and record finding supported by reasons on all the issues arising along with the contentions put forth. It is also well settled that the appellate court, while agreeing with the view of the trial court, need not reconsider all the evidence or reiterate the reasons given by the trial court and expression of general agreement with reasons given by the Court would ordinarily suffice. However, even when there is expression of general agreement, it must appear from such judgment that there was application of mind and the materials on record were duly considered. 16. In the instant case, it appears to this Court that the learned lower appellate court had considered the materials available on record and it does not appear to the court that there was failure on the part of the lower appellate court to apply its mind to the factual matrix and accordingly, I am of the considered opinion that substantial question of law No. 1 is to be answered against the appellant. 17. It is a settled law that fixation of period within which a contract is to be performed does not stipulate that time is the essence of contract. In respect of a contract relating to sale of immovable property, it will normally be presumed that time is not the essence of the contract. In the plaint, contents of the Bainanama were more or less reproduced except omitting to state that on the failure of the purchaser to pay the balance amount of Rs. 12,000/- within 14.3.1998, the purchaser will forfeit the advance consideration amount paid. While it was the case of the plaintiff that the defendant was to obtain the sale permission, a contrary stand was taken by the defendant in the written statement to the effect that the plaintiff had failed to apply for sale permission. 12,000/- within 14.3.1998, the purchaser will forfeit the advance consideration amount paid. While it was the case of the plaintiff that the defendant was to obtain the sale permission, a contrary stand was taken by the defendant in the written statement to the effect that the plaintiff had failed to apply for sale permission. The said controversy will not be of significance in view of the fact that ultimate finding of the learned trial court is to the effect that sale permission dated 5.2.1998 was obtained by the defendant. In his evidence, the plaintiff had stated that there was no witness to his offering the balance amount of consideration on various dates and also on 1.3.1998, when he offered the consideration amount for the last time. The plaintiff, in his evidence, had also stated that because of illness of the defendant, he had not executed the sale deed. However, no such plea was taken in the plaint. 18. Going by the language used in the agreement including the forfeiture clause, it appears that in the instant case, time was the essence of the contract. Both the courts below had held that there was no acceptable evidence on record to prove that the plaintiff had offered the balance amount of consideration amount within the stipulated period. It is not that the learned courts below had not considered the evidence of P.W. 1. It was considered and on totality of the materials on record, the learned courts below came to the conclusion that the plaintiff had failed to prove with acceptable evidence that he was ready and willing and had offered the balance consideration amount within the stipulated time. 19. In view of the above, the substantial question of law Nos. 2 and 3 are answered in terms of the above. 20. In the result, I find no merit in this appeal and the same is dismissed. No cost. 21. Send back the LCR.