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2018 DIGILAW 745 (CAL)

Dalchand Omprakash v. Dhirendro Mullick

2018-10-05

BISWANATH SOMADDER, MOUSHUMI BHATTACHARYA

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JUDGMENT : Biswanath Somadder, J. 1. The instant appeal arises out of a judgment and decree dated March 9, 2015, passed in a suit for specific performance filed by appellant as the plaintiff. By the said judgment and decree, the suit was dismissed. 2. In the said suit, the appellant/plaintiff had sought for specific performance of an agreement in writing dated September 1, 1982 entered into by and between the defendant nos.1 to 4 as modified by another written document dated July 30, 1984. The appellant/plaintiff claims to be the nominee of the defendant no.4 being the respondent no.4 in the appeal. The said two agreements were allegedly entered into between the trustee of a trust and the respondent No.4. The defendant/respondent nos.1 to 3 as the trustees of the Trust known as Trust Estate Jitendro Mullick (hereinafter referred to as the said Trust) who allegedly entered into the said two agreements through the trustees. The respondent nos.5 to 9 are the added defendants being the subsequent trustees of the said Trust. The defendant no.8 is the receiver/appointee in another suit being CS No.7110 of 1990 (Purnendro Mullick vs. Dhirendro Mullick & Ors.) which is inter se between the trustees of the said Trust. The subject suit was contested jointly by the defendant nos. 3, 6 and 7 respectively being the respondent nos. 3, 6 and 7 in the appeal and separately by defendant no.5 being the respondent no.5 in the suit. 3. On the basis of the pleadings eight issues were framed which are as follows :- “1. Is the present suit maintainable in its present form? 2. Whether the Agreement for Lease dated 1st September, 1982 executed by and between the Defendant Nos. 1, 2 and 3 for and on behalf of “Trust Estate Jitendro Mullick” and the Defendant No. 4 binding upon the parties? 3. Whether the Plaintiff as the nominee of the Defendant No. 4 to the said Agreement entitled to enforce the said agreement against the Defendant Nos. 1, 2 and 3 and/or the said Trust? 4. Is the Plaintiff entitled to the decree of specific performance of the said agreement as claimed for in the plaint? 5. Is the Plaintiff entitled to the decree of delivery of vacant and peaceful possession of the said premises? 6. Is the Plaintiff entitled to the perpetual injunction restraining the Defendant Nos. 4. Is the Plaintiff entitled to the decree of specific performance of the said agreement as claimed for in the plaint? 5. Is the Plaintiff entitled to the decree of delivery of vacant and peaceful possession of the said premises? 6. Is the Plaintiff entitled to the perpetual injunction restraining the Defendant Nos. 1, 2 and 3 and their servants and agents from dealing with, alienating or parting with possession and inducting any tenant in the said premises? 7. To what other relief or reliefs, if any, the plaintiff is entitled to as against the defendant Nos. 1, 2 and 3? 8. Is the claim of the plaintiff barred by the laws of limitation?” 4. The appellant/plaintiff being a registered partnership firm examined one witness, namely, Krishna Kumar Nangalia, son of Late Dalachand Nangalia who claims to be one of the partners of the plaintiff firm. On behalf of the defendants, two witnesses were examined, namely, Suvendro Mullick and Tapendro Mullick being defendant nos.6 and 5 respectively in the suit. The defendant no.4, namely, Shyam Sundar Nangalia who is alleged to be the agreement holder neither filed any written-statement nor came to the witness box to depose. The learned Single Judge has decided the issue of limitation being the eighth issues in favour of the plaintiff thereby holding with the plaintiff’s claim is not barred by limitation. 5. The issue nos. 2 to 6 were taken up together by the learned Single Judge and considered as a whole. After due consideration of the materials on record, the evidence laid by the parties, the Learned Single Judge held that the agreement for lease dated September 1, 1982 (hereinafter referred to as the said agreement) was validly terminated on behalf of the Trust thereby holding that the same is not binding upon the parties. The Learned Single Judge further answered the third and the fourth issues in the negative and against the plaintiff. By virtue of such conclusion, it was held that the appellant/plaintiff as the nominee of the defendant no.4 is neither entitled to enforce the said agreement as modified on July 30, 1984 nor are they enforceable by a decree for specific performance of the said agreement as modified on July 30, 1984 against the defendant nos.1 to 3. as also the said Trust. as also the said Trust. This will also appear clearly from the decision as regards the fourth issue which has been held in the negative as against the plaintiff. The Learned Single Judge, therefore held that the plaintiff is not entitled to a decree of specific performance as claimed in the suit. As the 3rd and 4th issues have been held in the negative, the natural fall out thereof is that the plaintiff is not entitled to any relief as claimed being covered by issue nos.5 and 6. The 5th, 6th and 7th issues are also answered in the negative and against the plaintiff. 6. The appellant/plaintiff at the time of hearing of the appeal has emphasized on the fact that the learned Judge ought to have held that the said agreement is a valid agreement and specifically enforceable. The learned Judge should have also granted specific performance of the said agreement as modified by the agreement dated July 30, 1984. It is well-settled principle of law that a relief for specific performance is a discretionary relief and if such discretion is exercised by the Court which appears to be based on the case made out, the materials on record and the evidence laid, such conclusion is normally not interfered with unless the findings are palpably erroneous. In the instant case, the appellant/plaintiff itself has claimed that the said agreement was modified on July 30, 1984. The said agreement (i.e. dated September 1, 1982) was executed by three of the trustees being the then trustees of the said Trust and neither the trust nor the trustees have disputed the same. The modification to the said agreement made on July 30, 1984 on the other hand has been executed by only one trustee and not by all the trustees. The authority of the said trustee namely Purnendro Mullick to execute any document or bring about any modification to the said agreement has been seriously questioned by the other trustees. Under the Indian Trust Act, 1882, all the trustees are required to represent the Trust and more particularly while dealing with trust properties. The authority of Purnendro Mullick to act as a managing trustee and authorised on behalf of the other trustees has not been proved apart from the fact that his trusteeship in 1984 when the modification said to have been done remains doubtful. The authority of Purnendro Mullick to act as a managing trustee and authorised on behalf of the other trustees has not been proved apart from the fact that his trusteeship in 1984 when the modification said to have been done remains doubtful. The plaintiff has not been able to establish that Purnendro Mullick was authorised by the other trustees of the said Trust or on behalf of the said Trust to modify the said agreement by himself. On the contrary, the other trustees of the trust has challenged his authority as managing trustee as also that of a trustee at the time of execution of the modification agreement. Moreover, the modification sought to be enforced by the plaintiff is in great divergence from the said agreement. The modification agreement materially alters the said agreement dated September 1, 1982. In absence of any clear proof, backed by proper evidence, the learned Single Judge was right in holding that the existence of the modification dated July 30, 1984 has remained unestablished. Since the appellant/plaintiff had come up with a case that the said agreement had been modified on July 30, 1984 and had specifically asked for a decree in terms of the modified agreement, the question of granting specific performance of the said agreement i.e. the agreement without modification to the appellant/plaintiff cannot and does not arise. This is because of the fact that it is the plaintiff’s own case that the said agreement has been modified. Even if it is held that the said agreement was a valid agreement, inasmuch as the appellant/plaintiff has sought for enforcement of the modified agreement, the specific performance of the said agreement cannot be granted. 7. The learned Single Judge after examining the materials on record and the evidence laid down has rightly come to a conclusion that the said agreement had been validly terminated by the trustees and/or the Trust. The said agreement is terminable in nature. Once it is found to be a terminable contract and the same has been validly terminated no specific performance thereof can be granted. We find no reasons to differ from such finding of the learned Single Judge on this score and uphold the decision of the Learned Single Judge as to valid termination of the said agreement upon considering the materials on record as also the evidence. 8. We find no reasons to differ from such finding of the learned Single Judge on this score and uphold the decision of the Learned Single Judge as to valid termination of the said agreement upon considering the materials on record as also the evidence. 8. It further appears to us after going through the evidence and the documents that the appellant/plaintiff is also not entitled to any damages even though no alternative relief for damages has been claimed. That apart the question of damages would have arisen had the plaintiff sought for specific performance of only the said agreement. The plaintiff having asked for specific performance of the modified agreement and on failing to prove the modified agreement is also not entitled to damages had damages been actually claimed by the appellant/plaintiff. 9. The documents and the evidence clearly established that neither the defendant no.4, being the original agreement holder, nor the appellant/plaintiff as his nominee were ready and willing to perform their respective obligation under the said agreement. Merely by paying some money, it cannot be established that the appellant/plaintiff or its predecessors were ready to perform their respective obligation under the agreement. Payment or part payment of consideration may be one of the obligations but both the respondent/defendant no.4 and the appellant/plaintiff allowed the things to drift as it suited their purpose with performing the other obligations. Only after getting hold of the alleged modification, the appellant/plaintiff has come forward to enforce the modified agreement. It is explicit that only after the modified terms could be pressed into action the appellant/plaintiff became active to go ahead with the transaction but around that time, the parent agreement dated September 1, 1982 had been terminated. The conduct of the appellant/plaintiff particularly in the light of the modification which the plaintiff wanted to enforce, but was unsuccessful-in establishing, the plaintiff cannot be compensated for any breach as it is apparent that the defendants/trustees did not commit any breach. 10. It is also relevant to mention that the witness of the appellant/plaintiff had no knowledge of the said agreement and to its so called modification. The said witness, however, has tried to impress upon the fact that he had knowledge of the two agreements. 10. It is also relevant to mention that the witness of the appellant/plaintiff had no knowledge of the said agreement and to its so called modification. The said witness, however, has tried to impress upon the fact that he had knowledge of the two agreements. On a scrutiny of the deposition of the said witness, Krishna Kumar Nangalia, and after going through the documents, it clearly appears that his evidence as having knowledge about the said agreement is unreliable. He was not involved at the time of execution of the two agreements. He has no knowledge as to the background leading to the execution of the two agreements or of the facts prior to the nomination in favour of the plaintiff. The person who could have vouched about the agreements and their background or of the fact immediately thereafter is the respondent/defendant no.4, namely, Shyam Sundar Nangalia. The appellant/plaintiff did not make any endeavour to bring the said Shyam Sundar Nangalia to the box though the appellant/plaintiff claims to be his nominee. Looking into the matter from that angle also, the specific performance of the two agreements cannot be granted. 11. We have also considered the written notes filed by the parties and find no reason to differ with the findings of the Learned Single Judge. We find that the Division Bench judgment of this Court reported in AIR 1983 Calcutta 216 relied upon by the respondent No. 5, strengthen our views in supporting the decree wherein specific performance of the said agreement has been refused. We also find that the other two judgments relied upon by the respondent No. 5, i.e. 2000 (2) SCC 428 and 2011(1) SCC 429 applies to the facts of the instant case and support the view taken by the Learned Single Judge. On the other hand, the unreported judgment cited by the appellant/plaintiff does not apply to the facts of the instant case. The passage from the book by Chesire and Fifoot relied upon by the appellant/plaintiff gives the general proposition of law on the subject and does not bring about any change to our views as stated hereinabove after considering the same. 12. Considering the above, we are of the opinion that the suit has been rightly dismissed. The appellant/plaintiff is not entitled to any relief as claimed in this suit. 12. Considering the above, we are of the opinion that the suit has been rightly dismissed. The appellant/plaintiff is not entitled to any relief as claimed in this suit. The appeal is accordingly dismissed and the judgment and decree passed by the Learned Single Judge is upheld. 13. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on a priority basis.