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2022 DIGILAW 125 (TRI)

Ankur Deb v. Dipa Rani Sharma (Chakraborty)

2022-03-14

T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - This is an appeal under Section 100 of the CPC from the appellate judgment and decree dated 07.01.2019 and 11.01.2019 respectively passed by the Additional District Judge, Court No. 3, West Tripura, Agartala in Title Appeal No. 17 of 2015 affirming the original judgment and decree dated 06.04.2015 and 09.04.2015 respectively passed by the Civil Judge, Court No. 1, West Tripura, Agartala in Title Suit No. 5 of 2013. 2. For the sake of brevity the parties are referred to as in the title suit No. 17 of 2015. Specific performance of agreement for sale dated 28.07.2011 sought to be enforced therein. The defendant being the absolute owner of the land measuring 0.10 acres comprised in Khatian No. 932/1-2, appertaining to present plot Nos. 1538, and 1539 situated at Mouja- Gandhigram under Tahsil- Gandhigram, Sub-Division- Mohanpur hereinafter referred as the suit land, entered into the agreement for sale to sell the suit land to the plaintiff in consideration of Rs. 2,10,000/-. An advance of Rs. 10,000/- was paid on the date of agreement. The period stipulated for the execution of sale deed was upto 08.10.2012. The plaintiff after arranging balance amount of Rs. 2,00,000/- kept regular contact with the defendant and on 20.08.2012 and 02.09.2012 the plaintiff along with this relatives verbally made request to the defendant to accept the balance amount to execute the sale deed in terms of the agreement for sale. Having no response from the defendant the plaintiff served a notice dated 21.09.2012 demanding execution of the sale deed, but inspite of receiving notice the defendant did not turn up. 3. The defendant, contested the suit by filing written statement and denied all the allegations laid by the plaintiff. The defendant also denied to have entered into any agreement or received the consideration money of Rs. 10,000/-. 4. The defendant stated further, inter alia, that her son, a person with disability was creating pressure upon her to transfer her land in his favour, but the defendant was not ready to do so. The plaintiff having visiting terms in the house of the defendant taking advantage of her bonafide belief and good faith interfered the dispute between her and her son. Accordingly, their dispute was resolved in a meeting held in presence of plaintiff and some other local people in the month of July, 2011. The plaintiff having visiting terms in the house of the defendant taking advantage of her bonafide belief and good faith interfered the dispute between her and her son. Accordingly, their dispute was resolved in a meeting held in presence of plaintiff and some other local people in the month of July, 2011. Immediately, after meeting the plaintiff came to the house of the defendant and asked her to put thumb impression on some papers on the pretest of writing down the decision of the meeting. The defendant on good faith put her thumb impression on a blank paper and subsequently the plaintiff managed to scribe the alleged agreement for sale on those blank papers. The defendant further added that the value of the suit land on the date of alleged agreement for sale would not be less than Rs. 70,000/- and therefore, the plaintiff's claim of purchasing the suit land in consideration of Rs. 2,10,000/- in improbable. The alleged agreement for sale having not registered has also got no legal force, the defendant further averred. 5. On the material proposition of law and fact upon which the parties are at variance, following issues were framed by the trial court: 1. Is the suit maintainable in its present form and nature? 2. Is the plaintiff and defendant entered into an unregistered for sale dated 28.07.2011 and defendant agreed to transfer the suit land to the plaintiff for consideration money of Rs. 2,10,000/- within the stipulated period mentioned in the agreement? 3. Is the alleged agreement for sale dated 28.07.2011 is wrong illegal, purported, manipulated, obtained by coercion and fraud and thereby sham and void? 4. Whether the plaintiff serve notice to the defendant within the stipulated period as per agreement showing his readiness and willingness to execute the sale deed. 5. Is the plaintiff entitled to any other relief/reliefs? 6. In order to prove the suit the plaintiff has examined as many as five witnesses including himself as PW1, Sri Haripada Chakraborty scribe of the agreement for sale as PW2, Sri Bikash Datta as PW3, Sri Sudip Das as PW4, and Sri Nepal Sharma as PW5, PWs3 to 5 are the attesting witness to the agreement for sale. 7. 6. In order to prove the suit the plaintiff has examined as many as five witnesses including himself as PW1, Sri Haripada Chakraborty scribe of the agreement for sale as PW2, Sri Bikash Datta as PW3, Sri Sudip Das as PW4, and Sri Nepal Sharma as PW5, PWs3 to 5 are the attesting witness to the agreement for sale. 7. While deciding the issues No. 2 and 3, the trial court has observed that as regards the first set of argument placed on behalf of the defendant as to the registration of the agreement for sale being relates to property valued more than Rs. 100/- the trial court was of the view that there is no statutory requirement that an agreement for sale must be in writing and to be registered. Even an oral agreement for sale can be entered subject to condition that the party must prove that there is consensus ad idem. The authority in this regard may be found in (1990) 4 SCC 147 (Brij Mohan v. Sugra Begam). 8. The agreement for sale being proved to have been executed, use of different ink in taking thumb impression of the defendant can no way effect the validity of the agreement for sale. The description of the suit land has been given in clear terms in the schedule at the bottom of agreement for sale. Exbt.A (Khatian No. 27728) produced by the defendant also makes it clear that the defendant is the owner of 10(ten) gandas of land. Exbt. A further makes it clear that the land included therein came to be recorded from khatian No. 932/1. Hence, the plea as to non-identical description of the suit land stands discarded. 9. During cross-examination the defendant apart from raising certain technical question with regard to the agreement for sale and placing simple denials failed to bring any rebuttal materials on record touching the validity of the agreement for sale. That apart, the evidence of DWs 2 and 3 in regards to taking thump impression of the defendant on blank papers also found to be unreasonable and unbelievable. Both the DWs 2 and 3 have deposed that they came to know about taking of thump impression from the defendant. That apart, the evidence of DWs 2 and 3 in regards to taking thump impression of the defendant on blank papers also found to be unreasonable and unbelievable. Both the DWs 2 and 3 have deposed that they came to know about taking of thump impression from the defendant. But there is nothing in the evidence of defendant (DW1) to show that the defendant has/had informed anybody else including the DWs 2 and 2 as to taking her thump impression on the alleged paper. Consequently, the evidence of the defendants in regards to taking thump impression on the alleged paper ceased to inspire confidence in my mind and hence discarded. We are, therefore, of the considered opinion that the defendant entered into the agreement for sale and accordingly issues No. 2 and 3 stands answered in positive. 10. While deciding issue No. 4, the trial court has observed that the pleading of the plaintiff supported by oral evidence adduced on affidavit goes to show that the plaintiff was/is ready and willing to perform the part of its contract and he was also ready and willing to perform his part of the contract during the stipulated period of agreement and he is still ready in doing so. There is specific averment in the plaint supported by an oral evidence that the plaintiff tendered the consideration money to the defendant within the stipulated period of the agreement for sale and lastly on 02.09.2012 plaintiff also stated to have serve a notice Exbt.1 (series) upon the defendant to execute the sale deed in terms of agreement for sale. This portion of the averment in respect of readiness and willingness stands undisputed and not denied even at the time of cross-examination of the plaintiff. Hence the trial court held that the plaintiff is ready and willing to perform his part of the contract. Accordingly, issue No. 4 stands answered in positive. 11. While deciding issue No. 5, the trial court has observed that there is no dispute that the defendant is a widow, aged more than 75 years. She had a son namely Nani Gopal Sharma who was a person with disability. During pendency of the suit the defendant had lost her son, being died on 03.12.2014, consequently, the defendant could not even produce her son to depose in her favour. On the other hand, the plaintiff is a construction contractor. She had a son namely Nani Gopal Sharma who was a person with disability. During pendency of the suit the defendant had lost her son, being died on 03.12.2014, consequently, the defendant could not even produce her son to depose in her favour. On the other hand, the plaintiff is a construction contractor. He also admitted to be a tax assessee. So considering the aforesaid circumstances, the trial court was of the opinion the performance of the agreement for sale under consideration would cause great hardship to the defendant and its non-performance would not cause any hardship upon the plaintiff. Therefore, the trial court was of the considered view that that was a fit case to apply discretionary jurisdiction in refusing the specific performance in exercise of the power vested under Section 20 of the Specific Relief Act. Hence, the issue No. 5 accordingly stands answered in negative. 12. It was finally observed by the trial court by the order dated 06.04.2015 in the following manner: "In the result the enforcement for specific performance of agreement for sale stands denied since it would cause great hardship to the defendant with a direction to the defendants to refund the earnest money of Rs. 10,000/- within two months along with 6% interest per-annum thereon from the date of filing the suit. In case of failure to refund the earnest money within two months in the manner as indicated above, the earnest money shall carry 9% interest per-annum thereon from the date of filing of the suit till the date of realization." 13. Aggrieved by the order dated 06.04.2015, the plaintiff further preferred an appeal being Title Appeal No. 17 of 2015 in the court of the Additional District Judge, Court No. 3, West Tripura, Agartala. 14. The lower appellate court by the order dated 07.01.2019 has observed that the plaintiff-appellant Sri Ankur Deb in his oral evidence has stated that he had paid Rs. 10,000/- to the defendant-respondent towards earnest money on the date of execution of the deed of agreement but no money receipt has been proved by the plaintiff-appellant. Admittedly, the deed of agreement for sale was not presented before the Sub-Registrar for registration and the defendant-respondent also denied the fact of payment of Rs. 10,000/- to the defendant-respondent by the plaintiff-appellant towards earnest money. Admittedly, the deed of agreement for sale was not presented before the Sub-Registrar for registration and the defendant-respondent also denied the fact of payment of Rs. 10,000/- to the defendant-respondent by the plaintiff-appellant towards earnest money. The plaintiff-appellant Sri Ankur Deb in his cross-examination has stated that he knows the defendant-respondent for last 6/7 years. The defendant-respondent is a woman of 75/76 years old and she has one handicapped son. PW 1 also admitted that there was a dispute between the defendant-respondent and her son in respect of the suit property. To avoid the dispute with her son, the defendant-respondent was willing to sell the suit land to the plaintiff-appellant. From the exhibited deed of agreement for sale it is revealed that the defendant-respondent was willing to sell the suit land for want of money but from the evidence on record it shows that the defendant-respondent was not in urgent need of money for which the evidence on record raises a big question about willingness and readiness of the defendant -respondent to sell her land property to the plaintiff-appellant for want of money. A deed for agreement for sale is not an instrument to prove the payment of earnest money to the intending seller by the intending purchaser. The fact of payment of money should be proved by any other instrument like money receipt, bank cheque, bank draft etc. Therefore, this court is of the opinion that the learned Trial Court has miserably failed in deciding all the issues in TS 05 of 2013 and passed the impugned order dated 06.04.2015 giving direction to the defendant-respondent to refund the earnest money with interest to the plaintiff-appellant. Hence, the lower appellate court found sufficient grounds to interfere with the impugned judgment and decree passed by Civil Judge (Sr. Division), Court No. 1, West Tripura, Agartala in TS 05 of 2013. 15. Further, by the order dated 07.01.2019, the lower appellate court has observed in the following manner: In view of the above findings and discussion, the judgment and decree passed by the learned Civil Judge (Senior Division) Court No. 1, West Tripura, Agartala on 06.04.2015 in TS 05 of 2013 is hereby set aside. As the plaintiff-appellant Sri Ankur Deb has failed to prove by exhibiting any money receipt that he had paid Rs. As the plaintiff-appellant Sri Ankur Deb has failed to prove by exhibiting any money receipt that he had paid Rs. 10,000/- to the defendant-respondent Smt. Gita Sharma towards earnest money for sale of the suit land to the plaintiff-appellant and the plaintiff-appellant also failed to prove that the defendant-respondent Smt. Gita Sharma put her thumb impressions on the deed of agreement for sale in presence of the attesting witnesses, it has not been proved that on 28.07.2011 the defendant-respondent had entered into an agreement for sale of the suit land to the plaintiff-appellant for a consideration money of Rs. 2,10,000/- and as such, the plaintiff-appellant is not entitled to get refund of Rs. 10,000/- with interest from the defendant-respondent as ordered by the learned Trial Court. The plaintiff-appellant Sri Ankur Deb is not entitled to get any decree as prayed for his pleadings in TS 05 of 2013. 16. Aggrieved by the order dated 07.01.2019, the appellant herein has preferred this appeal before this court. This court by the order dated 29.04.2019 has framed the following substantial questions of law: (i) Whether the decisions of the courts below in exercising the discretionary power under Section 20 of the Specific Relief Act is perverse or not? (ii) Whether the sale in between the plaintiff and the defendant is valid and is enforceable in law, the courts below can dispose the suit of the plaintiff-appellant? 17. The main attack of the appellant is with regard to the issue No. 5 famed by the trial court by the order dated 06.04.2015 which has been dealt with by the trial court categorically keeping in view Section 20 of Specific Relief Act. By the said order dated 06.04.2015, the trial court has allowed the plaint by passing an order of refunding Rs. 10,000/- along with interest of 6% per annum and failing which the earnest money shall carry 9% interest per annum thereon. The said amount of Rs. 10,000/- is the advance amount paid by the plaintiff to the defendant as a part consideration for the agreement of sale of Rs. 2,10,000/- to which the plaintiff agreed and the defendants agreed to sell. 18. For the reasons indicated in the suit since the issues are also answered in the favour of the plaintiff, the court below came to conclusion the amount needs to be refunded and accordingly finding is given to that effect. 19. 2,10,000/- to which the plaintiff agreed and the defendants agreed to sell. 18. For the reasons indicated in the suit since the issues are also answered in the favour of the plaintiff, the court below came to conclusion the amount needs to be refunded and accordingly finding is given to that effect. 19. During the course of the argument, it is noted the principal defendant Gita Sharma has died and during the course of the litigation. The insane son of the defendant also died. Now, at the stage of appeal the elder daughters of the principal defendant are brought on record. Without going into the other issues and without hearing the defendants, this court is of the prima-facie opinion that the orders passed by the trial court dated 06.04.2015 invoking powers under Section 20 of the Specific Relief Act are just and proper. Further the appellant failed to justify his case in not proving the completion of transaction from his end. His part of the obligations was not complete and during the pending of the litigation the vendors died, making the deal frustrated. 20. In view of the above discussion, the present appeal is dismissed. The judgment and decree dated 07.01.2019 and 11.01.2019 respectively passed by the Additional District Judge, Court No. 3, West Tripura, Agartala in Title Appeal No. 17 of 2015 stands confirmed.