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Tripura High Court · body

2020 DIGILAW 117 (TRI)

Atas Chakraborty v. Shilpi Roy (Podder)

2020-10-08

ARINDAM LODH

body2020
JUDGMENT 1. Heard Mr. Soumen Saha, learned counsel appearing for the appellant as well as Mr. Soumendu Roy, learned counsel appearing for the respondents. 2. This second appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 27.01.2016 passed in case No. M.A. 15 of 2013 by the learned Additional District Judge, Court no.2, West Tripura, Agartala, dismissing the appeal, thereby upholding the judgment dated 20.08.2013 and decree dated 27.08.2013 passed by the learned Civil Judge, Senior Division, Court no. 1, West Tripura, Agartala, decreeing the suit directing the defendant-appellant to pay Rs. 3,81,000/- along with interest @ 8% per annum to the plaintiff within two months from the date of decree failing which to pay further interest @6% per annum. 3. Shorn of unnecessary details, the relevant facts necessary to decide the issue raised in this second appeal may be discussed. The plaintiff-respondent (here-in-after referred to as "plaintiff"), instituted a Money Suit for realisation of Rs. 3,81,000/- payable jointly by the defendants No. 1 and 2 i.e. the appellant and his mother (here-in-after referred to as the "defendants"). (a) The plaintiff and the defendants had entered into an agreement for sale of the suit premises. Total consideration money was settled and determined at Rs. 25 lakh. Out of the said total consideration money, the plaintiff paid Rs. 5 lakh in advance as earnest money. Ultimately, the plaintiff informed that she would not be able to pay the total consideration money within the stipulated period, as agreed upon between them in the agreement (Exhibit-3). The plaintiff requested to cancel the Deed of Agreement for Sale. Accordingly, the Deed of Agreement for Sale dated 20.06.2008 was cancelled by a Cancellation Deed dated 15.12.2008 (Exhibit-5). In the Deed of Cancellation, it is categorically stated that the defendants refunded the earnest money of Rs. 5 lakh which was received from the plaintiff at the time of execution of the Deed of Agreement for Sale and the plaintiff had received the said amount. Before the deed of cancellation for sale agreement, the plaintiff and defendants had executed a Lease Deed on 03.12.208. Monthly rent was determined at Rs. 4,000/- and, it is written that an advance amount of Rs. 3 lakh was paid to the defendants for the purpose of execution of the said Lease Deed. Before the deed of cancellation for sale agreement, the plaintiff and defendants had executed a Lease Deed on 03.12.208. Monthly rent was determined at Rs. 4,000/- and, it is written that an advance amount of Rs. 3 lakh was paid to the defendants for the purpose of execution of the said Lease Deed. Subsequently, the plaintiff had expressed her desire to shift her business premises and also had served a notice upon the defendants on 18.12.2009 informing that she would vacate the leasehold premises. The plaintiff also made request to the defendants to refund the advance money after due adjustment of the monthly rent and the advance amount of money within the said period of 3 months. Accordingly, in terms of the notice, the plaintiff vacated the leasehold premises on 31.03.2010 keeping the leasehold premises under lock, and keys of the leasehold premises were handed over to the defendant no.1. (b) After vacating the premises, the plaintiff had served a notice upon the defendants on 26.04.2010 demanding payment of Rs. 1,10,000/-which she was entitled to get after adjusting the monthly rent of Rs. 4,000/- (Exhibit- B). Suddenly, after few days i.e. on 20.07.2010, the plaintiff had served another notice upon the defendants claiming Rs. 3,81,000/- (Exhibit-D). (c) The defendant no. 1 contested the suit by filing written statement. The defendant no. 2 did not file written statement. However, he was given opportunity to cross-examine the witnesses. The defendant no. 1 denied the suit of the plaintiff. In course of proceeding, after taking into consideration of the pleadings and documents introduced by the parties to the lis, the learned trial court framed the following issues: (i) Is the suit maintainable in its present form and nature? (ii) Whether the plaintiff is entitled to get a decree for her entitlement of Rs. 3,81,000/- from the defendants? (iii) Whether the plaintiff is entitled to get interest if any upon the decretal amount, if so, upto what extent? (iv) Whether any other relief/reliefs the parties are entitled to get? (d) The plaintiff had adduced her evidence as PW-1. The defendant No. 1 also had adduced evidence on her behalf as DW-1. (e) Having heard the submission of the learned counsel and the materials on record, the learned trial court had decreed the suit in favour of the plaintiff directing the defendants to pay Rs. 3,81,000/-, as aforestated. (d) The plaintiff had adduced her evidence as PW-1. The defendant No. 1 also had adduced evidence on her behalf as DW-1. (e) Having heard the submission of the learned counsel and the materials on record, the learned trial court had decreed the suit in favour of the plaintiff directing the defendants to pay Rs. 3,81,000/-, as aforestated. (f) The defendant no.2 preferred appeal before the learned District Judge, West Tripura, Agartala. The case was subsequently transferred to the court of learned Additional District Judge, Court no. 2, West Tripura, Agartala. The learned first appellate court after hearing the argument and considering the evidence on record, dismissed the appeal and, thereby affirmed and upheld the judgment and decree of the learned trial court, as aforestated. (g) Being aggrieved by and dis-satisfied with the judgment and decree dismissing the appeal, the appellant has preferred the instant appeal before this court. 4. At the time of admission of the appeal, the following substantial questions of law were formulated: "(i) Whether the documentary evidence (Exbt.5) can be relegated in the circumstances or not? and (ii) Whether the finding returned without considering the contents of the unregistered Baynapatra dated 20.06.2008 (Exbt.5) to be treated as perverse?" 5. On the basis of the aforestated substantial questions of law, I have proceeded to hear the submission of the learned counsel appearing for the parties to the lis. 6. Mr. Saha, learned counsel appearing on behalf of the appellant has tried to persuade this court on the basis of the admitted statement made in the Deed of Cancellation of sale agreement dated 15.12.2008 (Exhibit-5). It is the pointed submission of the learned counsel that from the contents of the Deed of Cancellation, it is clear that at the time of execution of the Deed of Cancellation of the Deed of Agreement for Sale, the defendants had paid back the entire earnest money of Rs. 5 lakh what they received from the plaintiff at the time of execution of the Agreement for Sale (Exhibit-3) and, it is also categorically stated that the plaintiff had received the said amount of Rs. 5 lakh. On the basis of this categorical statement made in the Deed of Cancellation (Exhibit-5), learned counsel has tried to persuade this court that when it is clearly written that the entire earnest money of Rs. 5 lakh. On the basis of this categorical statement made in the Deed of Cancellation (Exhibit-5), learned counsel has tried to persuade this court that when it is clearly written that the entire earnest money of Rs. 5 lakh was refunded to the plaintiff, the oral statement made by the plaintiff that she did not receive the amount will be of no consequence in view of Section 91 and 92 of the Indian Evidence Act, 1872. 7. Mr. Roy, learned counsel for the plaintiff submits that though it was written in the Deed of Cancellation that the plaintiff had received the amount from the defendants, but, in reality it was not done rather the plaintiff had requested the defendants to adjust Rs. 3 lakh which is the amount paid in advance as earnest money as per the Lease Deed dated 03.12.2008. 8. Based on the aforesaid rival submission, I have perused the evidence of the plaintiff as well as the evidence let in by the defendant no. 1. 9. The defendant no. 1, has categorically stated in her deposition that it is true that the plaintiff had paid Rs. 5 lakh on 20.06.2008 as earnest money as one of the terms recorded in the Deed of Agreement for Sale. She has further deposed that subsequently another lease deed was executed in between the plaintiff and the defendants and the defendants on 03.12.2008, the plaintiff had failed to pay the remaining consideration money mentioned in the Deed of Agreement for Sale (Exhibit-3). It is categorically deposed by her that as per the Lease Agreement, the earnest money of Rs. 3 lakh was adjusted from the aforesaid amount of Rs. 5 lakh and as per their verbal discussion, the Agreement for Sale, executed earlier was cancelled on 15.12.2008. She has further deposed that she has paid another Rs. 90,000/- in cash to the plaintiff and also adjusted Rs. 29,000/- against the house rent. 10. Admittedly, the contents of the Deed of Cancellation i.e. Exhibit 5, has been proved. Chapter VI, containing Section 91 to 100 of the Indian Evidence Act, 1872 lays down the provision relating to "The Exclusion of Oral by Documentary Evidence" and restricts the admissibility of extrinsic evidence to prove the contents or to contradict or add or subtract from the terms of the document. Chapter VI also provides for certain exceptions. Chapter VI, containing Section 91 to 100 of the Indian Evidence Act, 1872 lays down the provision relating to "The Exclusion of Oral by Documentary Evidence" and restricts the admissibility of extrinsic evidence to prove the contents or to contradict or add or subtract from the terms of the document. Chapter VI also provides for certain exceptions. The relevant Sections 91 and 92 provide examples in regard to which documents are considered as the evidence of transaction while oral evidence cannot be used to supersede, control, contradict, vary, add to or subtract from the terms of the documentary evidence. 11. Documents are considered as dead proofs while witnesses are addressed as living proofs. Therefore, documentary evidence is superior to oral due to the permanency and trustworthiness. The exclusion of oral evidence from documentary evidence has been explicitly covered by Sections 91 and 92 of the Evidence Act. Section 91 of the Evidence Act, reads as under: "91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained." 12. Section 91 of the Evidence Act lays down an important principle "Best Evidence Rule". The "Best Evidence Rule" consists of the contents that entail the document itself and it is the production of the document that is required by Section 91 as a proof of its contents. Therefore, the rule laid down by Section 91 can be acknowledged as an exclusive rule because it excludes the admission of oral evidence for proving the contents of the documents except the cases where secondary evidence is allowed to be laid under the relevant provisions of the Act. 13. However, there are certain "Exceptions" engrafted in Section 91 itself. Therefore, the rule laid down by Section 91 can be acknowledged as an exclusive rule because it excludes the admission of oral evidence for proving the contents of the documents except the cases where secondary evidence is allowed to be laid under the relevant provisions of the Act. 13. However, there are certain "Exceptions" engrafted in Section 91 itself. Those, "Exceptions", may be reproduced here-in-under: "Exception 1 When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2. Wills may be proved by the probate." 14. Under Exception-1, the general rule is that, when the contents of a writing is to be proved, the writing itself must be produced or when its absence is accounted for, secondary evidence may given. 15. Section 91, also provides "Explanations". These are: "Explanation 1 This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation 2 Where there are more originals than one, one original only need be proved. Explanation 3 The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact." 16. Section 92 of the Evidence Act, deals with "exclusion of evidence of oral evidence". The said provision applies only to oral agreement. The prohibition contained in Section 92 is against admission of oral evidence for purpose of varying the terms of written document. It does not apply to written agreement or statement. Where an agreement in writing is executed alongwith a promissory note postponing the time of payment is not admissible. Section 92 of the Evidence Act runs as follows: "92. The prohibition contained in Section 92 is against admission of oral evidence for purpose of varying the terms of written document. It does not apply to written agreement or statement. Where an agreement in writing is executed alongwith a promissory note postponing the time of payment is not admissible. Section 92 of the Evidence Act runs as follows: "92. Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms". 17. Section 92 of the Evidence Act is supplementary and coronary to the rule contained in Section 91. Section 92 also provides certain "Provisos". The said "Provisos' are as under: "Proviso (1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Proviso (2) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3) The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4) The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5) Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6) Any fact may be proved which shows in what manner the language of a document is related to existing facts." 18. On cumulative reading of Section 91 and 92 of the Evidence Act, as reproduced here-in-above, I am unable to subscribe the argument of learned counsel for the appellant, defendant no.2 that in view of the categoric recital made in the Deed of Cancellation of Agreement for Sale (Exhibit-5), in regard to the fact that the defendants made refund of the earnest money to the plaintiff which was also received by the plaintiff, being superior evidence cannot be superseded by oral evidence adduced by the plaintiff that she was entitled to get refund of Rs. 3,81,000/- as received separate. After going through the entire evidence on record including my conscious consideration to the evidences of plaintiff (PW-1) as well as the defendant no.1 (DW-1), this court finds the oral evidence as to the adjustment of money is consistent connecting the Deed of Agreement for Sale, dated 20.06.2008 (Exhibit -3) with the Deed of Cancellation of the Agreement for Sale, dated 15.12.2008 (Exhibit-5) and the Lease Deed, dated 03.12.2008 (Exhibit-4). 19. Noticeably, the Deed of Cancellation of the Agreement for Sale (Exhibit-5) was executed after the execution of the Lease Deed. The defendant no. 1 has categorically stated when confronted during her cross-examination that there was a discussion for adjustment and out of that discussion there was an oral agreement that the sum of Rs. 3 lakh which ought to have been paid by the lessee, the plaintiff herein, to the lessor, the defendants herein, had to be adjusted with the earnest money of Rs. 5 lakh, which was paid by the plaintiff at the time of execution of the Agreement for Sale, dated 20.06.2008 (Exhibit-3) is also the plaintiff's case that there was an oral agreement for adjustment of the earnest money. 20. It is the specific assertion of the defendant no. 1 in her cross-examination that she further paid Rs. 90,000/- in cash to the plaintiff and also adjusted Rs. 29,000/- against house rent. 20. It is the specific assertion of the defendant no. 1 in her cross-examination that she further paid Rs. 90,000/- in cash to the plaintiff and also adjusted Rs. 29,000/- against house rent. Thus, on cumulative reading of the documentary and oral evidence, I find oral evidence is consistent with the documentary evidence and in this situation, the oral evidence can be taken into consideration for evaluation of the total evidence in the interest of justice and to provide equitious relief to the parties. 21. In the case in hand, both the plaintiff and the defendants have asserted that there was an oral agreement in regard to the mode of payment and adjustment of the earnest money with the advance security deposit out of the Lease Deed for the rented premises as well as the rent and further, it has also been proved that the defendant have paid Rs. 90,000/-. This payment of Rs. 90,000/- further proves that there was an oral agreement between the plaintiff and the defendant that though it was written that they paid Rs. 5 lakh to the plaintiff but, virtually the said amount was not paid on mutual understanding that the said amount would be adjusted for taking the rented premises on lease and from the rent. This oral agreement regarding adjustment of advance money neither embodied in the lease deed (Exhibit-4) nor in the deed of cancellation for sale (Exhibit-5) and such oral terms not embodied in the deed but settled by the parties to the transactions contemporaneously which are found to be not inconsistent with the written document i.e. deed herein are admissible in evidence under the provisos of Section 92 of the Evidence Act. On the basis of such mutual oral agreement it has been proved that the defendants have paid Rs. 4,19,000/- [Rs. (3,00,000 + 90,000 + 29,000) = 4,19,000/-. Therefore, they are liable to pay the remaining amount of Rs. 81,000/-, as it was quantified in the preceding paragraphs. [emphasis supplied] 22. On culmination of the above discussion, in my view, the plaintiff is entitled to get decree of the remaining amount of Rs. 81,000/- [Rs.(5,00,000 4,19,000)]. 23. One of the important features, in the instant case, is that this factum of mutual understanding and adjustment has not been embodied either in Exhibit-4 i.e. the Lease Deed or in Exhibit-5 i.e. the Deed of Cancellation of Agreement for Sale. 81,000/- [Rs.(5,00,000 4,19,000)]. 23. One of the important features, in the instant case, is that this factum of mutual understanding and adjustment has not been embodied either in Exhibit-4 i.e. the Lease Deed or in Exhibit-5 i.e. the Deed of Cancellation of Agreement for Sale. In my considered view, oral evidence is always admissible to ascertain the real intention of the parties to the transaction and whether real agreement between the parties is embodied in the document or not. 24. Under Section 92 of the Evidence Act, overall evidence can be taken into consideration to ascertain the real nature of transaction, the object being based on the doctrine of equity as was intended to be achieved by the legislature by way of incorporating 6(six) provisos as exceptions to the main provision of Section 92 of the said Act. The said section is not a complete bar to the admission of oral evidence to prove that the transaction was intended to be something other than what it purports, in my view, since the provisos are to be the kind of relaxations as provided to Section 92 of the Evidence Act. Oral evidence may guide the Court in unravelling the true intention of the parties and tendering of extrinsic evidence as to acts, conduct and surrounding circumstance is permissible to enable the court to ascertain the real intention of the parties. [Emphasis supplied] 25. After giving thoughtful consideration to the evidence in its entirety, I find there is no inconsistency in the oral agreement and in the context of the case, the evidence of oral agreement is admissible in view of proviso 2 and 3 of Section 92 of the Indian Evidence Act. Being summarized the law in my considered view, the oral evidence in regard to certain facts is admissible so far it is consistent with the written document. 26. Having held so, the substantial question of law, as formulated by the court that whether the documentary evidence (Exbt.5) can be relegated in the circumstances or not, in my opinion, considering the entire evidence, both oral and documentary, the documentary evidence as provided under Exhibit-5 should not solely be relegated and in the surrounding circumstances of the case, the oral evidence also has to be considered for the reason that oral evidence in regard to adjustment of Rs. 3 lakh and payment of Rs. 90,000/- and adjustment of Rs. 3 lakh and payment of Rs. 90,000/- and adjustment of Rs. 29,000/- are found to be consistent, as surfaced from cumulative consideration of the documentary, and oral evidence let in by the respective parties to the lis. Both the trial court and the first appellate court have failed to take into account the real tenor of law as envisaged under Section 92 of the Evidence Act. Therefore, the judgments and decrees passed by both the courts below should be interfered with in exercise of jurisdiction of this court under Section 100 CPC and, accordingly, the same is interfered. 27. Accordingly, the instant appeal is partly allowed. The judgment and decree passed by the appellate court in connection with M.A. 15 of 2013 is accordingly modified to the extent that the plaintiff is entitled to get a decree for realisation of Rs. 81,000/- (Rupees eighty one thousand) only from the defendants instead of Rs. 3,81,000/- (Rupees three lakh eighty one thousand) only. Further, the plaintiff is entitled to receive the decreetal amount of Rs. 81,000/- (Rupees three lakh eighty one thousand) only from the defendants within 3(three) months, else, the said decreetal amount shall carry interest @5% per annum from the date of institution of the suit. 28. Draw the decree accordingly. Send down the LCRs immediately.