JUDGMENT : 1. The plaintiff has instituted this suit for a decree for specific performance of agreement of sale dated 3rd July, 2009, 1st October, 2009, 13th November, 2009 and 30th November, 2009 against the defendants and each of them and for permanent injunction restraining the defendants and/or their men, agents or cohorts from dealing with and/or encumbering and/or selling the suit premises to any third party. The plaintiff has also prayed for a decree of permanent injunction restraining their men, agents or cohorts from interfering with the peaceful possession of the plaintiff in the suit premises with other consequential reliefs. 2. The plaintiff's case in brief is that plaintiff is a businessman carrying on business of diverse marble and marble by products where as the defendants are the owners of the demarcated 1500 sq. feet of area in the southern portion of the 2nd floor of premises no. 70/1/2, Gouribari Lane, Kolkata-700004, more fully described in the schedule to the plaint. Pursuant to negotiation the plaintiff agreed to purchase the suit premises and the defendants agrees to sell the same for a consideration of Rs. 21,00,000/- and an agreement for sale dated 3rd July, 2009 was executed by the plaintiff in favour of the defendants upon earnest sum of Rs. 50,000/- paid to the defendant on the date of execution of such agreement. It was agreed that a further sum of Rs. 6,00,000/- would be paid by the plaintiff to the defendant within a month from the date of the execution of said agreement for sale and the balance thereof would be payable to the defendants at the time of registration of the sale deed in respect of the suit premises. 3. Plaintiff duly made payment of the sum of Rs. 6,00,000/- to the defendants as per the agreement aforesaid but the defendants were not in a position to clear all the entire municipal dues in respect of the suit premises amounting to Rs. 1,00,000/- and to furnish title deeds and other documents in respect of the premises as agreed in Clause 6 of the said agreement. So, the plaintiff and the defendants by an agreement dated 1st October, 2009 extended the time from 1st September, 2009 to 30th October, 2009 for completion of the registration of the deed and a further sum of Rs. So, the plaintiff and the defendants by an agreement dated 1st October, 2009 extended the time from 1st September, 2009 to 30th October, 2009 for completion of the registration of the deed and a further sum of Rs. 1,50,000/- was paid by the petitioner to the defendant to facilitate the defendant to clear of the municipal dues in respect of the suit premises but the defendants failed and neglected to either pay of the municipal dues of the premises or to execute the deed of conveyance in terms of the agreement dated 13th November, 2009. Again by an agreement extending the date of execution of the deed of sale by 30th November, 2009 was extended and plaintiff further paid sum of Rs. 2,00,000/- to the defendants. Yet, by further agreement dated 30th November, 2009, time for execution of deed of sale by 14th December, 2009 was extended upon request of a further sum of Rs. 2,00,000/- to the defendants to facilitate the execution of the sale deed. Thus, the plaintiff paid an aggregate sum of Rs. 12,00,000/- to the defendants under the said agreements. The plaintiff has paid excess sum of Rs. 10,50,000/- and the plaintiff was put in possession of the entire suit premises by the defendants on 20th December, 2009 but the defendants did not execute and register the deed of sale in terms of the agreement. So the defendant were not requested to execute the deed of conveyance in respect of the suit premises upon receipt of the balance sum of Rs. 9,00,000/- by an advocate's letter. But of no effects hence the suit has been filed with a prayer for decree of specific performance of agreement dated 3rd July, 2009 and as per the time extended from time to time by separate agreements on 1st October, 2009, 13th November, 2009 and 30th November, 2009. 4. The defendant no. 1 contested the suit by filing written statement denying all material particulars made in the plaint contending, inter alia, that the suit is not maintainable in law and in fact. 4. The defendant no. 1 contested the suit by filing written statement denying all material particulars made in the plaint contending, inter alia, that the suit is not maintainable in law and in fact. It is also contended that Section 17 (1) (a) of the Registration Act, 1908 as amended thereafter the documents containing contract to transfer for consideration any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882, it has to be registered if executed on or after the commencement of the registration and other related laws Amendment Act, 2001. If such documents are not registered on or after such commencement, then they shall have no effect for the purpose of said Section 53A. 5. Accordingly, it has been contended that suit is liable to be rejected in limine, being barred by law as the agreement executed are unregistered documents unacceptable in evidence. 6. It is contended that as per Section 35 of the Indian Stamp Act, 1899 no instrument chargeable with duty shall be admitted in evidence for any purpose by any person, by law or consent of the parties authority to receive evidence or shall be acted upon unless such instrument is duly stamped. 7. As per Clause 4 of the agreement dated 3rd day of July, 2009 and as per the Clause 5 of the agreements dated 1st October, 2009, 13th November, 2009 and 30th November, 2009, it has been mutually agreed by and between the parties thereto that if the defendants fail to perform their part of the contract and executive sale deed by taking balance amount then the plaintiff purchaser shall have the right to sue for specific performance of contract before the appropriate Court of law. Defendants prayed for rejection of the suit, in limine, as per the Order VII Rule 11 (a) and (d) read with Section 151 of the Civil Procedure Code and not maintainable in fact and in law. 8. On the pleadings of the parties to the suit following issues were framed— 1. Is the suit maintainable in its present form and in law? 2. Is the suit barred by limitation? 3. Has this Court territorial jurisdiction to entertain the suit? 4. Is the suit bad for non joinder of necessary parties? 5. Are the agreements between the plaintiff and the defendants dated 3.7.2009, 1.10.2009, 13.11.2009 and 30.11.2009 legally enforceable? 6. Is the suit maintainable in its present form and in law? 2. Is the suit barred by limitation? 3. Has this Court territorial jurisdiction to entertain the suit? 4. Is the suit bad for non joinder of necessary parties? 5. Are the agreements between the plaintiff and the defendants dated 3.7.2009, 1.10.2009, 13.11.2009 and 30.11.2009 legally enforceable? 6. Is the plaintiff entitled to a decree for specific performance of contract as prayed for? 7. Is the plaintiff entitled to get any other reliefs? Issues 1, 2, 3, 4, 5, 6 and 7 The above issues are taken up together for the sake of conveyance in discussion and for brevity. Although in the written statement the defendant has contended that the suit is not maintainable in law and in fact and is liable to be dismissed in limine and the plaint is liable to be rejected under the provision of Order VII Rule 11 (a) and (d) read with Section 151 of the Civil Procedure Code and as per the provisions under Section 17(1) (a) of the Registration Act, 1908, as the agreement for sale dated 3rd July, 2009 and subsequent agreements dated 1st October, 2009, 13th November, 2009 and 30th November, 2009 are required to be registered for the purpose of Section 53A of the Transfer of Property Act and such agreements cannot be admitted in evidence which are written on a stamp paper of Rs. 10/- but the defendant has failed and neglected to enter in the witness box in support of their case. 9. It would appear that a cheque of Rs. 40,000/- and cheque of Rs. 2,00,000/- were withdrawn and encashed by the defendant from the SBI Account of the plaintiff Exhibit-G. A further sum of Rs. 1,50,000/- was withdrawn on 06.10.2009. sum of Rs. 2,00,000/- was encashed on 13.11.2009 by the defendant. It further appears from the SBI Account and the Bank Statement of Mrs. Nisha Shaw wife of the plaintiff (Exhibit-H) that a sum of Rs. 4,00,000/- was received by the defendant. Similarly, it would appear that a sum of Rs. 2,00,000/- was paid to the defendants by cheque which was encashed as per the Bank's statement vide dated 31st August, 2009 Exhibit-G2. It would appear from the agreement dated 1st day of August, 2009 between the parties that the date of registration of the deed was extended up to 30th October, 2009 since Rs. 2,00,000/- was paid to the defendants by cheque which was encashed as per the Bank's statement vide dated 31st August, 2009 Exhibit-G2. It would appear from the agreement dated 1st day of August, 2009 between the parties that the date of registration of the deed was extended up to 30th October, 2009 since Rs. 1,00,000/- was due to K.M.C and the plaintiff further paid Rs. 1,50,000/- for clearing the dues of K.M.C as it would be evident from Exhibit-C. The agreement reflects that if the vendors failed to perform their part of the contract and to execute sale deed by taking balance amount, then the plaintiff has right to sue for specific performance of contract before the appropriate Court of law. The sum paid for Rs. 1,50,000/- to the defendant vide cheque is well evident from the statement of the Bank being Exhibit G 3. The agreement dated 13th day of November, 2009 reveals that the date of registration of the deed of conveyance was extended up to 30th November, 2009 since there were dues of the K.M.C as well as the C.E.S.C to be cleared and for that further sum of Rs. 2,00,000/- was paid by the plaintiff to the defendants for clearing his dues as evident from Exhibit-D, D1 and D2. It is clearly evident that a sum of Rs. 40,000/-, sum of Rs. 2,00,000/- were all encashed by the defendant. A third agreement dated 30th November, 2009 Exhibit-D was executed by extending the date of registration of the deed of sale dated 14th December, 2009 since the dues of the K.M.C and C.E.S.C was not yet paid and cleared. 10. Cancellation of the Demand Draft dated 23rd November, 2009, aggregating to an amount of Rs.9,00,000/- as per the statement of account of the plaintiff vide Exhibit-I, I-1 and I-2 are evident of the fact that the plaintiff was ready at all material time to pay the balance consideration amount to the defendant in discharge of the plaintiff's obligation under the agreement. 11. By Advocate's letter dated 30th July, 2011, Exhibit-F, the plaintiff called upon the defendants to furnish the details of the co- owners of the suit premises and their respective shares in view of the mutation standing jointly in the name of Renuka Ray, Smt. Shanti Ray, Sri Chandan Kumar Ray in respect of the premises no. 11. By Advocate's letter dated 30th July, 2011, Exhibit-F, the plaintiff called upon the defendants to furnish the details of the co- owners of the suit premises and their respective shares in view of the mutation standing jointly in the name of Renuka Ray, Smt. Shanti Ray, Sri Chandan Kumar Ray in respect of the premises no. 70/1/2, Gouribari Lane, but the fact remains that the agreement entered by and between the plaintiff and the defendants in respect of the suit premises being a flat in the building situated at the premises no. 70/1/2, Gouribari Lane and further a letter dated 21st July, 2009, was addressed to the Bank Manager, Indian Overseas Bank, Shayam Bazar Branch, Kolkata, by the Advocate of the plaintiff calling upon the banker to let the plaintiff know as to whether any loan or mortgage is lying with the Bank in respect of the said premises and if the Bank has any lawful claim or objection that may be intimated to the plaintiff. My attention is also invited to a notice dated 24th July, 2009, Exhibit-5 published in the Telegraph giving notice to the public at large for any claim or anybody's claim over the suit property but there was no response from anybody pursuant to such publication of the notice in the Telegraph. 12. It is depicted from the Advocate's letter dated 04.12.2009 Exhibit-L on behalf of the defendants addressed to the plaintiff that the plaintiff was called upon and advised to effect the transfer of the property of the defendant by making full payments as to the consideration by execution of appropriate deed of conveyance by or before 14.12.2009 failing which the defendant's instruction was that the agreements so entered by and between the plaintiff and the defendant would be treated as cancelled inoperative and not binding upon the defendant in any manner whatsoever and to forfeit the advance money of Rs. 12,00,000/- paid to the defendants in response to the letter so communicated to the plaintiff. 12,00,000/- paid to the defendants in response to the letter so communicated to the plaintiff. The plaintiff made it clear by its Advocate's letter dated 16.12.2009 Exhibit-M pointing out that the plaintiff had been to the residence of the defendants on 13.11.2009 to discuss the matter and being advised by the defendant to give in writing about the queries relating to mutation of Smt. Renuka Ray in respect of the said property as and when the defendants shall explain about the status of the third person in respect of the suit property in whose name the said property is also mutated with the record of authority concerned along with both of the defendants and requested them to arrange the suit property free from any encumbrance and to explain the status of the said third person without delay and to cooperate so as to complete the purchase transaction of the suit property with immediate effect. 13. The letters addressed to the plaintiff by the District Engineer, Calcutta North District of C.E.S.C limited reflects that the C.E.S.C had received an application of the plaintiff submitted on 26.3.2010 for providing the estimate etc. for supply of electricity at the suit premises being floor no. 2nd, 7/1/2, Gouribari Lane, in respect of which the earnest money was paid on 26.3.2010. A request was also made to the plaintiff to arrange for a representative to be present at the main entrance of the premises so that meter board position is made fully accessible during such inspection. It is, thus, axiomatic from the said letter that the plaintiff was put into possession of the suit flat on 20.9.2009. Plaintiff also intimated the Officer-in-charge Bartala P.S. about payment of 75% of the total consideration to the defendants by the plaintiff. A letter dated 2nd April, 2010, Exhibit-O was also issued through the Advocate of the plaintiff seeking the status of Renuka Ray in the suit premises. 14. Advocate's letter dated 13th August, 2010, Exhibit-Q, was communicated to the defendants on behalf of the plaintiff calling upon the defendants to execute a deed of conveyance in favour of the plaintiff within one month from the date of receipt of the letter as the plaintiff is ready to pay the balance consideration amount at the time of registration of the deed of conveyance. A letter dated 6th October, 2010, Exhibit-R is communication to the I.G. registration and ARA2 Kolkata requesting them to refrain from registering any deed of sale with regard to the suit premises and by a letter dated 2nd July, 2011, the defendants were called upon to execute the deed of conveyance but the said letter was returned as not claimed by the defendants. 15. Dileep Kumar Shaw is the plaintiff who deposed before the Court to prove the aforesaid documents which have been admitted on evidence as exhibited documents including the agreements for sale, Exhibit-A. 16. By agreement for sale Exhibit-E in respect of the suit premises for consideration of Rs. 21,00,000/- clearly reveals that earnest money was paid to the defendants. It is also reflected from the documentary evidence that time to execute and register deed of conveyance was extended. 17. Taking into Consideration the agreement for sale dated 3rd July, 2009, Exhibit-B, agreement for sale dated 1st October, 2009, Exhibit-C, the agreement for sale by extending the time up to 30th November, 2009 Exhibit-D and further date of registration having been extended up to 14th December, 2009 by and between the parties by execution of an agreement vide Exhibit-E, it is evident of the facts that the defendant entered into an agreement for sale of the suit premises in favour of the plaintiff. It is also evident from the passbooks of the plaintiff and that of his wife being Exhibit-G that cheques were given by the plaintiff to the defendant which were encashed by the defendant. It is also reflected from the Bank Statement Exhibit-I that balance sum of Rs. 9,00,000/- is only due to be payable to the defendant for the execution and registration of the deed of conveyance whereas it is well admitted by the defendant as it would appear from the their Advocate's letter dated 4th December, 2009, Exhibit-L, that the sum of Rs. 10,00,000/- have been duly received by the defendant but the defendants have failed and neglected to execute and register the deed of conveyance in terms of the agreement for sale in favour of the plaintiff whereas the plaintiff was ready and willing to pay the balance consideration sum of Rs. 9,00,000/- for the sale of the suit premises. 18. It is pertinent to take note of the fact the writ of summons was issued and the defendant no. 9,00,000/- for the sale of the suit premises. 18. It is pertinent to take note of the fact the writ of summons was issued and the defendant no. 1 duly received the summons whereas the defendant no. 2 was not served because of the endorsement addressee moved. Subsequently, a substituted service of summon was taken out by an application being G.A. No. 1676 of 2014 and pursuant to an order dated 13th June, 2014 for paper publication, and modified order as 11th August, 2014 and 13th November, 2014, a gist of writ of summon was published on 5th September, 2014 in 'The Statesman' and 'Eisomoy' on 24th November, 2014. By order dated 2nd March, 2014, the suit was proceeded ex parte against the defendant no. 2. However, the defendant no. 1 had entered appearance and had filed written statement and has also cross- examined the plaintiff witness during the trial of the suit but did not enter the witness box in support of his case as it is evident from the order dated 21st January, 2009. By way of orders dated 10th April, 2019, 18th July, 2019 read with 30th July, 2019, this Court further gave opportunity to the defendant no. 1 to participate in the proceeding but of no effect. Finally, the case proceeded in view of the order dated 20th August, 2019. 19. In this context, learned Advocate appearing for the plaintiff relied on a decision in case of Carapiet Vs. Derderian reported in AIR 1961 Cal 359 wherein it has been observed thus, "wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the house of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated." 20. In the context of what has been discussed above and bearing in mind the settle principle of law and further that the defendant no. 2 has avoided to receive the writ of summon and defendant no. 1 having entered appearance in the suit and contested by filing written statement and examining the plaintiff witness but failed to enter the witness box, hence, this Court holds that the plaintiff has proved his case in absence of any evidence to the contrary. So, the plaintiff is entitled to a decree. Therefore, suit is decreed on contest with costs against defendant no. 1 and ex parte against defendant no.2. 21. Thus, the above issues are decided in favour of the plaintiff. Accordingly, the plaintiff do get a decree for a specific performance of agreements dated 3rd July, 2009, 1st July, 2009, 13th July, 2009 and 30th July, 2009, against the defendants and each of them. The defendants and each of them are directed to execute and register the deed of conveyance in respect of the suit premises mentioned in the schedule to the plaint within a period of three months from the date of the decree upon receipt of balance consideration of Rs. The defendants and each of them are directed to execute and register the deed of conveyance in respect of the suit premises mentioned in the schedule to the plaint within a period of three months from the date of the decree upon receipt of balance consideration of Rs. 9,00,000/- in delicto, the plaintiff shall be entitled to put the decree into execution and registration of the deed of conveyance upon deposit of the balance consideration amount through Court.