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Gauhati High Court · body

2020 DIGILAW 424 (GAU)

Md Hafijur Haque v. Md. Minar Hussain

2020-03-24

KALYAN RAI SURANA

body2020
JUDGMENT 1. Heard Mr. P.K. Kalita, learned senior counsel, assisted by Mr. G.J. Saikia, learned counsel for the appellants and Mr. I.H. Saikia, learned counsel for the respondents. 2. This appeal under section 96 read with Order XLI Rule 1 CPC is against the judgment and decree dated 12.04.2018 passed by the learned Civil Judge, Kamrup, Amingaon in T.S. No. 2/2015, thereby decreeing the suit of the respondents for specific performance of contract against the appellants-defendants. 3. As per the plaint, the appellants are the owners and possessors of land measuring 1B-2K-15L, covered by dag no. 71 of K.P. Patta No. 113 of village Nawkuchi, Mouza- Pub Borigog in the district of Kamrup, morefully described in the schedule of the plaint. Their names appear at sl. no.8 and 9 of the jamabandi i.e. records of right. 4. The respondents had filed T.S. No.2/2015 against the appellants for specific performance of the agreement for sale, registered as deed no. 402/2011 dated 18.07.2011, relating to the land described in schedule of the plaint. It was projected that out of the agreed sale consideration of Rs.25.00 lakh, the appellants had accepted the sale consideration of Rs.20,80,000/- on the date of executing the agreement, and that they had also received a further sale consideration of Rs.1,00,000/- on 23.09.2011, as such, only a balance amount of Rs.3,20,000/- remained to be paid to the appellants. Accordingly, NOC for sale was applied for and issued by the Office of the Deputy Commissioner under memo dated 06.01.2012. It was projected that although the balance sale consideration was kept ready for payment, the appellants did not make any communication with the respondents for which the respondents visited the house of the appellants on many dates between 07.08.2012 and 28.09.2012. Thereafter, the respondents issued an advocates notice dated 29.09.2012 to the appellants by registered post which was delivered on 03.10.2012, followed by another advocates notice dated 11.10.2012 which was delivered on 16.12.2010. However, on 10.12.2014, some unknown persons were seen visiting the suit land, intending to purchase the same, and after being informed about the existing agreement for sale, they left the suit land. However, on 10.12.2014, some unknown persons were seen visiting the suit land, intending to purchase the same, and after being informed about the existing agreement for sale, they left the suit land. Hence, by stating that the cause of action for the suit had arisen on 18.07.2011, 08.08.2012, 29.09.2012, 0310.2012, 11.10.2012, 16.10.2012 and 10.12.2014, the present suit was instituted for specific performance of contract, inter-alia, with a prayer for a decree directing the appellants to execute the sale deed in favour of the respondents by accepting the balance sale consideration of Rs.3,20,000/-, failing which Court would execute the sale deed. 5. In their written statement, the appellants had stated that the suit was bad for non joinder of (i) Sri Narapati Kalita, and (ii) Mainul Haque with whom they had a previous agreement for sale and that in their absence, no effective decree could be passed in the suit. It was further stated that as per clause-4 of the agreement dated 03.08.2011, the amount of Rs.10,80,000/- of the previous agreement with the said two persons were included with the advance money payable to the appellants. It was stated that as the said amount was not paid to the appellants, the statement that a sum of Rs.20,80,000/- was paid to the appellants was not correct. The receipt of Rs.1,00,000/- on 23.09.2011 was also denied. It was stated that the suit for specific performance of contract was filed after the expiry of 3 (three) years from the date of execution of the agreement for sale dated 18.07.2011 and, as such, the suit was barred under Article 54 of the Limitation Act. While denying the statement made in the plaint, it was specifically stated that contrary to clause-2 of the agreement for sale, the respondents had failed to pay the full sale consideration of the suit land within 2 (two) months from the date of receipt of sale permission in spite of demand made by the appellants. It was also stated that the respondents had failed to aver and proof that they were ready and willing to perform their part of the essential terms of the contract as provided under section 16(c) of the Specific Relief Act, 1963. It was also stated that the respondents had failed to aver and proof that they were ready and willing to perform their part of the essential terms of the contract as provided under section 16(c) of the Specific Relief Act, 1963. It was further stated that on 15.12.2012, prior to filing of the suit, the respondents had also filed C.R. Case No. 1469 c /2012 under sections 420/406/506/34 IPC , which was dismissed by the learned Judicial Magistrate First Class, Rangia by order dated 30.04.2015. The appellants prayed for dismissal of the suit. 6. On the basis of pleadings, the following issues were framed for trial: i) Whether there is cause of action for the suit? ii) Whether the suit is bad for non joinder of necessary parties? iii) Whether the defendants have entered into an agreement for sale of the suit land with the plaintiffs on 18.07.2011 for a total consideration of Rs.25,00,000/- and received an amount of Rs.21,80,000/- as earnest money from the plaintiffs? iv) Whether the plaintiffs were ready and willing to perform their part of contract? v) To what reliefs are the parties entitled to? 7. In support of their case, the respondents had examined 3 (three) witnesses, viz., Md. Minar Hussain (PW-1), Md. Abdul Malik Dewan (PW-2), and Md. Matiur Rahman (PW-3) and exhibited the following 6 (six) documents, viz., Land Sale Agreement (Ext.1), Land Sale Permission (Ext.2), pleaders notice dated 29.09.2012 to Md. Hafijur Haque (Ext.3), pleaders notice dated 29.09.2012 to Musst. Nigar Sultana (Ext.4), pleaders notice dated 11.10.2012 to Md. Hafijur Haque (Ext.5), pleaders notice dated 11.10.2012 to Musst. Nigar Sultana (Ext.6). The appellant nos.1 and 2 had examined themselves as DW-1 and DW-2 respectively, and they had exhibited the following two documents, viz., certified copy of petition of case no.1469 c /12 (Ext.A), certified copy of order sheet dated 30.04.2015 of case no. 1469 c /12 (Ext.B). 8. In respect of issue no. 1, it was held that there was cause of action for the suit and in respect of issue no. 2, it was held that the suit was not bad for non-joinder of necessary parties. In respect of issue no. 1469 c /12 (Ext.B). 8. In respect of issue no. 1, it was held that there was cause of action for the suit and in respect of issue no. 2, it was held that the suit was not bad for non-joinder of necessary parties. In respect of issue no. 3, it was held that though on record, there is no documentary evidence to show previous agreement, but from the admission of the respondent No.2 (PW-2) during his cross-examination, it was held that it was proved that there was an earlier agreement for sale in between the appellants and Narapati Kalita and Mainul Haque. It was also held that the respondents had not exhibited any documentary evidence to substantiate payment of Rs.1,00,000/- to the appellants. The denial by the appellants about receipt of Rs.20,80,000/- as advance was disbelieved because in their cross- examination they had admitted that they had not taken any steps to recover the same. Accordingly, in respect of issue No.3, it was held that the appellants had received an amount of Rs.20,80,000/-. In respect of issue No.4, the learned trial Court had referred to admission by the respondents during their cross-examination that they had resolved the matter with said Narapati Kalita and Mainul Haque by returning their earlier advance money. It was held that from the conduct of the respondents, it could be seen that there was continuous readiness and willingness on their part to perform their part of the contract and the appellants could not escape their part of the obligation because the respondents had admitted in their cross-examination that they had resolved the matter regarding earlier agreement for sale. It was also held that non mentioning about payment of the balance amount in the legal notices would also not proved that the respondents are not ready and willing to perform their part of the contract and, as such, it was held that the respondents were ready and willing to perform their part of the contract but the appellants had avoid execution of the registered sale deed in favour of the respondents. Thus, issue no. 4 was decided in favour of the respondents. Accordingly, in respect of issue no. 5, it was held that the respondents were entitled for decree for specific performance of contract of sale dated 18.07.2011. Thus, issue no. 4 was decided in favour of the respondents. Accordingly, in respect of issue no. 5, it was held that the respondents were entitled for decree for specific performance of contract of sale dated 18.07.2011. Consequently, the appellants were directed to execute the sale deed in respect of the schedule by receiving the balance amount of Rs.4,20,000/- and on failure, the sale deed would be executed by the Court under Order XXI Rule 34 CPC and permanent injunction was granted to restrain the appellants from transferring the schedule land to any other person/ persons and the suit was decreed with cost. 9. The learned senior counsel for the appellants has deliberated on the grounds of appeal, which was countered by the learned counsel for the respondents, who had made his submissions to support the judgment and decree impugned herein. Perused the LCR. 10. The provisions of Order XLI Rule 31 of the Civil Procedure Code require formulation of the points for determination by the appellate court in an appeal filed from the original decree. It also requires giving decision thereon and to record reasons for such decision. Based on the arguments advanced by the learned counsel for the parties and the judgment and decree passed by the learned trial court, the following points for determination are formulated: a. Whether in the absence of impleading Narapati Kalita and Mainul Haque, the respondents- plaintiffs had discharged their burden of proving payment of Rs.20,80,000/- on 03.08.2011 and a further sum of Rs.1,00,000/- on 23.09.2011 to the appellants? b. Whether the respondents had discharged their burden of proving their readiness and willingness to perform essential part of the contract of offering the balance sale consideration of Rs.3,20,000/- to the appellants? c. Whether the reliefs claimed in the suit is barred under Article 54 of the Schedule to the Limitation Act, 1963? d. Whether the impugned judgment and decree is sustainable on facts and in law? Point of determination no.(a): 11. This point of determination, amongst others, would also deal on the issues no. (ii), (iii) and (v) framed by the learned trial Court. 12. While deciding issue no. (ii), the learned trial Court had taken note of clause- 4 of the agreement (Ext.1) that Rs.10,80,000/- taken while executing old agreement was included with the advance amount paid at the time of execution of Ext.1. (ii), (iii) and (v) framed by the learned trial Court. 12. While deciding issue no. (ii), the learned trial Court had taken note of clause- 4 of the agreement (Ext.1) that Rs.10,80,000/- taken while executing old agreement was included with the advance amount paid at the time of execution of Ext.1. The learned trial Court, in respect of its decision on issue no.(iii) had held that from the admission of PW-1, it was confirmed that at the time of advance payment on 18.07.2011, out of Rs.20,80,000/- an amount of Rs.10,80,000/- was paid to Narapati Kalita and Mainul Haque. However, the nonreceipt of Rs.20,80,000/- as advance was disbelieved by the learned trial Court because the appellants had not taken any steps to recover the said money. 13. The pleaded case in the plaint is that the respondents- plaintiffs had paid a sum of Rs.20,80,000/- to the appellants. The respondents had neither arrayed Narapati Kalita and Mainul Haque as parties in the said suit, nor there is any pleading to the effect that out of advance of Rs.20,80,000/-, a sum of Rs.10,80,000/- was paid to Narapati Kalita and Mainul Haque, which was in valid discharge of such payment as per clause- 4 of the said agreement (Ext.1). In the written statement, the appellants had specifically stated that the respondents had never paid Rs.20,80,000/- to them. It was also pleaded that as per clause-4 of the agreement dated 03.08.2011 (sic. 18.07.2011), the amount of Rs.10,80,000/- of the old agreement with Narapati Kalita and Mainul Haque was included with the advance money although the said money has not yet been received by the appellants, as such, it was not correct that the respondents had paid Rs.20,80,000/- to the appellants on the day of execution of the registered agreement. Be it stated that the agreement was executed and registered on 18.07.2011, but the certified copy (Ext.Ka) was issued on 03.08.2011, but in several place in the written statement, the date of agreement is erroneously mentioned as 03.08.2011. 14. The clause- 4 of the said agreement is extracted below:- '4. That due to out dated of the old agreement in this land in the name of Narapati Kalita and Mainul Haque, the advance amount of Rs.10,80,000.00 (Ten lakhs eighty thousand) only is included with the advance amount of the new agreement in the name of Miran Hussain and Abdul Malik Dewan.' 15. That due to out dated of the old agreement in this land in the name of Narapati Kalita and Mainul Haque, the advance amount of Rs.10,80,000.00 (Ten lakhs eighty thousand) only is included with the advance amount of the new agreement in the name of Miran Hussain and Abdul Malik Dewan.' 15. It is seen that in his cross examination, the PW-1 had stated that he and Abdul Malik Dewan had returned Rs.10,80,000/- due to Narapati Kalita and Mainul Haque. He had further stated that in the plaint as well as in his evidence- on- affidavit, it was not stated that there was an understanding with Narapati Kalita and Mainul Haque. Similarly, the PW-2 had also stated in his cross examination that after understanding, they had paid Rs.10,80,000/- to Narapati Kalita and Mainul Haque. he had also stated that the said fact was not stated in the plaint. It was further stated that they had not made Narapati Kalita and Mainul Haque parties in the suit. PW-2 had further stated in his cross examination that Narapati Kalita and Mainul Haque had not put their signature in Ext.1. However, PW-2 had denied the suggestion that they had not paid Rs.20,80,000/- to the appellants. PW-3 had stated in his cross examination that at the time of execution of the agreement, Narapati Kalita and Mainul Haque were present, but he did not know if they had put their signature in the agreement. Thus, from the cross examination of the three PWs, the pleadings of the appellants stands established to the effect that they were not paid a sum of Rs.20,80,000/-, because it is not the case of the appellants that apart from Rs.10,80,000/- paid to the said Narapati Kalita and Mainul Haque, a further sum of Rs.20,80,000/- was paid to the appellants. 16. Therefore, from the statements made by the three PWs in their cross- examination, it is apparent that the plea of the respondents that a sum of Rs.20,80,000/- was paid to the appellants as advance at the time of execution of the agreement for sale (Ext.1) stand disproved because of their categorical statement to the effect that some understanding had taken place between the respondents on one part and the said Narapati Kalita and Mainul Haque on the other part. In the absence of any pleading in the plaint, any part of land sale consideration which is not paid to the appellants, but to third parties, namely, Narapati Kalita and Mainul Haque cannot be construed to be a payment of Rs.20,80,000/- to the appellants. 17. On examination of the evidence of the three PWs, it is seen that no evidence was given in their examination- in- chief to show that (a) their understanding with Narapati Kalita and Mainul Haque, or (b) payment of a sum of Rs.10,80,000/- to Narapati Kalita and Mainul Haque was due payment of Rs.20,80,000/- to the appellants. On the contrary, the stand of the appellants regarding non- receipt of Rs.20,80,000/- by them could not be demolished in the cross examination of the two DWs. 18. The respondents had not examined Narapati Kalita and Mainul Haque to prove that payment of Rs.10,80,000/- was made to them on 18.07.2011, which was in compliance of clause- 4 of the agreement (Ext.1), and would constitute a valid payment of Rs.20,80,000/- to the appellants. It is further seen that none of the PWs had given any statement in their evidence- on- affidavit regarding the date (a) when understanding, if any, was reached between the respondents on one part and the said Narapati Kalita and Mainul Haque on the other part, and (b) the date when a sum of Rs.10,80,000/- was paid to the said two persons. 19. Therefore, in view of the discussions above, it appears that the decision of the learned trial Court on issues no.(ii) and (iii) are flawed and unsustainable. The evidence on record wherein the three PWs of the respondents had admitted in their cross- examination that there was some understanding with Narapati Kalita and Mainul Haque and that the respondents had paid previous advance of Rs.10,80,000/- taken by the appellants from Narapati Kalita and Mainul Haque, leads to an inevitable conclusion that the said Narapati Kalita and Mainul Haque were proper and necessary parties in the suit. Thus, the finding by the learned trial Court that the suit was not hit by non- joinder of Narapati Kalita and Mainul Haque is not sustainable and the said finding is hereby set aside. Thus, the finding by the learned trial Court that the suit was not hit by non- joinder of Narapati Kalita and Mainul Haque is not sustainable and the said finding is hereby set aside. Resultantly, the suit is held to be bad for the non- joinder of the said Narapati Kalita and Mainul Haque, because in their absence, it cannot be adjudicated that payment of Rs.10,80,000/- paid to them and not to the appellants was due discharge of obligation under clause- 4 of the agreement dated 18.07.2011 (Ext.1). 20. In respect of issue no.(iii), the learned trial Court had already negated and/or disbelieved the payment of Rs.1,00,000/- by the respondents to the appellants on 23.09.2011. In the said context, the respondents have not filed any cross objection or a separate appeal. Therefore, the respondents had allowed the said finding to attain finality. 21. In respect of issue no.(iii), the learned had held that the appellants had received an amount of Rs.20,80,000/-. The said finding shows that the learned trial Court had either misread or misconstrued the cross- examination of the PWs, wherein the PW-1 had stated that Rs.10,80,000/- was paid to Narapati Kalita and Mainul Haque and the other version by PW-2 was that there was an understanding with the said two persons. This Court is constrained to hold that in their cross examination, the three PWs had disproved the plea of the respondents that they had paid a sum of Rs.20,80,000/- as advance to the appellants on 18.07.2011, i.e. at the time of execution of the agreement (Ext.1). Therefore, the finding returned by the learned trial Court on issue no.(iii) that Rs.20,80,000/- was paid to the appellants by the respondents on 18.07.2011, out of sale consideration of Rs.25,00,000/- is found contrary to the evidence on record. It would be pertinent to mention herein that in order to establish their projected case that a sum of Rs.20,80,000/- was paid to the appellants, the respondents failed to plead and/or even to elicit an admission from the two DWs during their cross examination that they had paid to them a sum of Rs.10,00,000/- (Rupees Ten lakh only). It would be pertinent to mention herein that in order to establish their projected case that a sum of Rs.20,80,000/- was paid to the appellants, the respondents failed to plead and/or even to elicit an admission from the two DWs during their cross examination that they had paid to them a sum of Rs.10,00,000/- (Rupees Ten lakh only). Hence, the respondents could neither prove making payment of Rs.20,80,000/- nor could they prove payment of a sum of Rs.10,00,000/- to the appellants, as such, the finding of the learned trial Court on issue no.(iii) is held to contrary to the evidence on record and, as such, the finding on issue no.(iii) is set aside and it is held that the respondents had not been able to successfully prove their plea of having paid an advance of either Rs.20,80,000/- or Rs.10,00,000/- to the appellants. 22. Moreover, the learned trial Court had failed to consider that the suit was filed by the respondents for specific performance of contract and, as such, it was the burden of the respondents to prove (i) that they had paid advance against the suit land, and (ii) that they were ready and willing to perform their part of the contract by offering balance sale consideration within the time as provided in the agreement. Therefore, merely because the appellants did not take steps to recover the advance amount of Rs.20,80,000/-, cannot be a lawful reason to decide issue no.(iii) in favour of the respondents. Resultantly, in view of the finding in respect of issues no. (ii) and (iii), the decision rendered by the learned trial Court on issue no.(v) is also not sustainable and, as such, it is held in respect of issue no.(v) that the respondents are not entitled to any relief in the suit. 23. Accordingly, the point of determination no.(a) is answered in the negative and against the respondents- plaintiffs to the effect that in the absence of impleading Narapati Kalita and Mainul Haque, the respondents- plaintiffs had not been able to discharge their burden of proving payment of Rs.20,80,000/- on 18.07.2011 and a further sum of Rs.1,00,000/- on 23.09.2011 to the appellants. Point of determination no.(b): 24. The aforesaid point of determination is related to issue no.(iv) and (v) framed for trial. 25. Point of determination no.(b): 24. The aforesaid point of determination is related to issue no.(iv) and (v) framed for trial. 25. In connection with issue no.(iii) covered by point of determination no.1, this Court had arrived at a finding that the respondents had not been able to discharge their burden of proving payment of Rs.20,80,000/- on 18.07.2011 and a further sum of Rs.1,00,000/- on 23.09.2011 to the appellants. Therefore, in view of the evidence on record, it cannot be believed that there remained balance sale consideration of Rs.4,20,000/- to be paid to the appellants. It must be kept in mind that in prayer no. (i) of the plaint, the respondents had prayed for a direction to the appellants to execute the sale deed by accepting the balance amount of Rs.3,20,000/-. As already discussed herein before, the learned trial Court had disbelieved that a further part payment of Rs.1,00,000/- was made by the respondents to the appellants on 23.09.2011. It would also be relevant to mention herein that the date of 23.09.2011, on which the alleged payment of Rs.1,00,000/- was made by the respondents to the appellants is not even the pleaded date of cause of action in the plaint. Thus, on the basis of pleadings and evidence on record, as this Court has disbelieved that the respondents had failed to discharge their burden to prove payment of Rs.21,80,000/- (i.e. Rs.20,80,000/- on 18.07.2011 and Rs.1,00,000/- on 23.09.2011). Moreover, upon the perusal of the contents of the two advocates notices dated 29.09.2012 (Ext.3 and Ext.4) and 11.10.2012 (Ext.5 and Ext.6), it is seen that it does not contain any offer to pay the balance sale consideration. Thus, at least from Ext. nos. 3 to 6, it cannot be said that the respondents had been able to prove their readiness and willingness to pay the balance sale consideration. Moreover, if the payment of part sale consideration of Rs.21,80,000/- is disbelieved, the projection that there was only a balance of Rs.3,20,000/- to be paid to the appellants cannot stand and/or sustain. Hence, the finding by the learned trial Court on issue no.4 is found contrary to the evidence on record, and the said finding on issue no.(iv) is set aside by holding that the appellants could not prove their readiness and willingness to perform their part of the contract. Hence, the finding by the learned trial Court on issue no.4 is found contrary to the evidence on record, and the said finding on issue no.(iv) is set aside by holding that the appellants could not prove their readiness and willingness to perform their part of the contract. As a result, in respect of issue no.(v), the respondents are found not entitled to any relief and, as such, the finding returned by the learned trial Court is hereby set aside. 26. Accordingly, in respect of point of determination no.(b), the Court is constrained to hold that the respondents had failed to discharge their burden of proving their readiness and willingness to perform essential part of the contract of offering the balance sale consideration of to the appellants. Point of determination no.(c): 27. It may be noted that in paragraph- 2 of the written statement, the appellants had pleaded that the suit was barred by limitation under Article 54 of the Limitation Act and that the suit for specific performance of contract was filed after expiry of three years from the date of execution of the contract. However, in the absence of any such issue framed on limitation, the learned trial Court did not examine the said aspect. By virtue of Section 3 of the Limitation Act , power is cast on the Court to see whether the suit is within limitation or time barred, therefore, even in the absence of any specific issue of limitation, the said aspect of the matter has been examined. 28. As per the land sale permission (Ext.2), the said permission was issued on 06.08.2012. As per clause-2 of the agreement for sale (Ext.1), the appellants were required to execute and register the sale deed within two months from the date of sale permission. The records reveal that T.S. No.2/2015 was filed on 02.01.2015. Hence, it is held that the suit was filed well within the period of limitation. The point of determination is answered accordingly. 29. Issue No.(i): In view of the nature of pleadings of both sides, the finding in respect of issue no.(i) does not warrant any interference, as there is cause of action for the suit. Point of determination no.(d): 30. Thus, in light of the discussions above and finding given in respect of point of determination no. (a), (b) and (c) above, concerning issues no. (ii) to (v) and issue no. Point of determination no.(d): 30. Thus, in light of the discussions above and finding given in respect of point of determination no. (a), (b) and (c) above, concerning issues no. (ii) to (v) and issue no. (i) as framed by the learned trial Court, the point of determination no. (a) is answered in the negative and in favour of the appellants by holding that the impugned judgment and decree passed by the learned trial Court is not sustainable on facts and in law. 31. Accordingly, this appeal stands allowed and as a result, the judgment and decree passed by the learned trial Court stands aside and reversed and the suit stands dismissed by holding that the respondent- plaintiff is not entitled to any relief. However, the parties are left to bear their own cost all throughout. 32. Let a decree be prepared. 33. Return the LCR.