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2022 DIGILAW 387 (TRI)

Pankaj Saha v. Kajal Roy (Das)

2022-09-29

S.G.CHATTOPADHYAY, T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - This appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 against the Judgment dated 18.03.2021 and decree dated 24.03.2021, passed by the learned Civil Judge, Sr. Division, Court No.4, West Tripura, Agartala in Case No. Title Suit No.52 of 2016. 2. The facts leading to this present appeal are that the defendant-respondent of this suit had entered into an agreement executed on 01.06.2015 that the suit land measuring 0.0350 acres classified as Bastu(Nal), C.S. Plot No.3766/33223(P), Khatian No.135, Mouja-Agartala Sheet No.5 and Tahashil- Sadar West presently Bordowali would be sold out by the defendant-respondent to the plaintiff-appellant on consideration amount of Rs.37,00,000/-. As per the agreement, plaintiff-appellant had paid Rs.5,00,000/- to the defendant as earnest money and it was settled that the rest amount of Rs.32,00,000/- would be paid within 30.09.2015. It is also mentioned in the agreement that after receipt of the rest amount within the time stipulated in the agreement, the defendant would execute the sale deed of the suit land. But despite of repeated requests by the plaintiff-appellant, the defendant-respondent did not receive the rest amount and the sale deed has not been executed in favour of the plaintiff-appellant. On this, the plaintiff-appellant issued a legal notice on 28.09.2015 and a subsequent notice dated 09.03.2016. In response to the notice dated 09.03.2016, the defendant-respondent refused to specifically perform the terms of the agreement dated 01.06.2015 and also refused to execute the registered sale deed in favour of the plaintiff-appellant. 3. Hence the plaintiff-appellant as plaintiff intuited the original suit for specific performance of agreement dated 01.06.2015 which was registered as T.S.52 of 2016 before the learned Civil Judge, Sr. Division, West Tripura. 4. On receipt of summon, defendant-respondent as defendant contested this suit by filing a written statement. In the written statement, defendant denied all the averments made in the plaint. On the other hand, the defendant's case is that due to extreme economic hardship and fatal kidney disease of her husband, Late Dayal Sundar Das, who expired on 16.07.2015, the defendant had requested the plaintiff to help her with the interest-free refundable loan of Rs.5,00,000/ to tide over her family crises. On the other hand, the defendant's case is that due to extreme economic hardship and fatal kidney disease of her husband, Late Dayal Sundar Das, who expired on 16.07.2015, the defendant had requested the plaintiff to help her with the interest-free refundable loan of Rs.5,00,000/ to tide over her family crises. Due to long-standing intimate relation between the families of the defendant and the plaintiff, it was agreed by the plaintiff to pay Rs.5,00,000/- to the defendant as loan by executing a hand note to refund the money showing her homestead property as mortgage. Accordingly, she had received the money after executing a hand note/undertaking to refund the money and the defendant is ready to refund the said loan amount to the plaintiff. It is also stated that there was no agreement for specific performance of contract as alleged in the plaint. Hence according to the defendant, the plaintiff has no cause of action to file the present suit and prayed for dismissing the suit. 5. After considering the pleadings, the learned Trial Court framed issues in the said suit which is as follows:- 'i. Whether the suit is maintainable in its present form and nature? ii. Whether there is any cause of action for the plaintiff to file this case? iii. Whether the plaintiff is entitled to get decree for getting sale deed registered in favour of him in respect of the suit land? iv. Whether the plaintiff is entitled to get decree of specific performance of contract for sale dated 01.06.2015? v. Whether the plaintiff is entitled to get a decree as prayed for?' 6. The plaintiff to prove his case examined 3(three) witnesses and exhibited various documents. On the other hand, the defendant-respondent adduced evidence of one witness and exhibited various documents. Thereafter, the arguments of both sides were heard. 7. The Trial Court after hearing the plaintiff and the defendant and considering the evidence on record dismissed the suit vide impugned judgment and decree dated 18.03.2021 and 24.03.2021 respectively. 8. The plaintiff-appellant being aggrieved by the said impugned judgment and decree dated 18.03.2021 and 24.03.2021 has preferred this instant appeal. 9. On 15.09.2022, the matter was heard in part and the same was adjourned to 22.09.2022. In the meanwhile, both sides were directed to check for any possibilities of settling the matter out of the Court. At that juncture, Mr. The plaintiff-appellant being aggrieved by the said impugned judgment and decree dated 18.03.2021 and 24.03.2021 has preferred this instant appeal. 9. On 15.09.2022, the matter was heard in part and the same was adjourned to 22.09.2022. In the meanwhile, both sides were directed to check for any possibilities of settling the matter out of the Court. At that juncture, Mr. R. Datta, learned counsel appearing for the defendant-respondent offered to return the amount received i.e., Rs.5,00,000/-(Rupees Five Lakhs only) with interest that would be fixed by the Court. To which, the learned counsel appearing for the plaintiff-appellant, Mr. K. Datta had represented that he would get back with instruction from his client by the next date of hearing. On 22.09.2022 when the matter was called, Mr. K. Datta, learned counsel appearing for the plaintiff-appellant submitted that his client does not want the amount and he wants an order on merit. 10. In view of the same, this Court heard Mr. S.M. Chakraborty, learned Sr. counsel along with Mr. K. Datta, learned counsel appearing for the appellant as well as Mr. K. Datta, learned counsel appearing for the respondent. 11. Mr. K. Datta, learned counsel appearing for the plaintiff-appellant submits that the stand of the defendant-respondent so taken in the written statement that she took the loan of Rs.5,00,000/- from the plaintiff-appellant and executed a deed of mortgage was not proved and the same was not accepted by the Trial Court. Whereas, the pleaded case of the plaintiff regarding the execution of the agreement for specific performance has been proved. If both the fact is put together, it becomes crystal clear that the defendant-respondent resorted to untrue statement meaning thereby she approach the Court with unclean hands. Mr. S.M. Chakraborty, learned Sr. counsel adding to the submission argued that the finding regarding the existence of the agreement has been established and there is no challenge to that. But, only on the ground of 'hardship' the Trial Court did not pass the decree in favour of the plaintiff. From the amendment of the Specific Relief (Amendment) Act, 2018, in Section 10 of the Specific Relief Act, the word 'may' has been replaced by the word 'shall'. From this, the intention of the legislature is very clear that once the agreement is proved, the Court is left with no other option but to follow the same. Stating thus, learned Sr. From this, the intention of the legislature is very clear that once the agreement is proved, the Court is left with no other option but to follow the same. Stating thus, learned Sr. counsel appearing for the appellant prayed to allow this instant appeal. 12. On the other hand, Mr. Raju Datta, learned counsel appearing for the defendant-respondent submits that plaintiff-appellant in his cross-examination has admitted that the husband of the defendant-respondent had died due to ailment after suffering for a long period. The Notary Public was not examined and the Advocate who identified the defendant-respondent was doubtful about the identity of the defendant-respondent. In her cross-examination, the defendant-respondent stated that he took the money from the plaintiff-appellant as a loan and this fact was not denied. 13. Learned counsel further argued that due to the economic distress and untoward incident happening in the family of the defendant-respondent, at that time, the defendant-respondent having good faith on the plaintiff-appellant as he was her tenant, she put her signature in the said agreement. On this point, learned counsel referred to the following Apex Court judgments. 13.1 Para-14 of the Apex Court Judgment reported in 1987 (Supp) SCC 340 titled as Parakunnan Veetill Joseph's Son Mathew Vs. Nedumbara Kuruvila's son and ors dated 14.09.1987 is reproduced herein-under:- '14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance.' 13.2. Para-11 of the Apex Court Judgment reported in (2017) 5 SCC 178 titled as Jayakantham and ors Vs. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance.' 13.2. Para-11 of the Apex Court Judgment reported in (2017) 5 SCC 178 titled as Jayakantham and ors Vs. Abaykumar dated 21.02.2017 is reproduced herein-under:- '11 In our view the material which has been placed on record indicates that the terms of the contract, the conduct of parties at the time of entering into the agreement and circumstances under which the contract was entered into gave the plaintiff an unfair advantage over the defendants. These circumstances make it inequitable to enforce specific performance.' 13.3. Para-7.4 of the Apex Court judgment reported in (2019) 3 SCC 704 titled as Kamal Kumar Vs. Premlata Joshi and ors., dated 07.01.2019 is reproduced herein-under:- '7.4 Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff' Stating thus, learned counsel prayed to dismiss this instant appeal and upheld the order of the Court below as the defendant-respondent has no other alternative accommodation other then the suit land. 14. Heard both sides and perused the evidence on record. 15. The plaintiff-appellant has categorically admitted that he was the tenant with the defendant-respondent and they knew each other. The plaintiff-appellant also is aware of the illness in the family of the defendant-respondent. Thereafter, the husband of the defendant-respondent died in the process of treatment. At that juncture, the said amount was given by the plaintiff-appellant to the defendant-respondent. It is the case of the defendant-respondent that the amount was received for the purpose of attending the kidney transplantation and treatment for her husband. The said amount was given towards the loan and not as sale consideration. The documents were not executed for the purpose of any sale deed or agreement of sale as contended by the plaintiff-appellant herein. On the said contention, the legal notice dated 28.09.2015 was issued by the plaintiff-appellant which is marked as 'Exbt-B', and subsequent notice dated 09.03.2016 marked as 'Exbt-C' was also issued for the purpose of executing the specific contract. The documents were not executed for the purpose of any sale deed or agreement of sale as contended by the plaintiff-appellant herein. On the said contention, the legal notice dated 28.09.2015 was issued by the plaintiff-appellant which is marked as 'Exbt-B', and subsequent notice dated 09.03.2016 marked as 'Exbt-C' was also issued for the purpose of executing the specific contract. The defendant-respondent through his Advocate issued a reply dated 06.04.2016 to the said notice marked as 'Exbt.-D' wherein the defendant-respondent categorically has denied the agreement of the sale and said that the amount was given by the plaintiff-appellant in the form of loan but not for sale consideration. 16. When such a denial is made from the side of the defendant-respondent, the plaintiff-appellant has not chosen to issue a rejoinder bringing the current facts and denial of the said averments made in the notice issued by the defendant-respondent. In the evidence of both sides, i.e., the plaintiff-appellant, as well as the defendant-respondent, the issue of tenancy and the issue of hardship in the family of the defendant-respondent, have not been denied and this Court feels that taking undue advantage of the defendant-respondent by the plaintiff-appellant is also unfair and not justified. In this regard, we may again reproduce the relevant paragraphs of the following Apex Court judgments:- Para-14 of Parakunnan Veetill Joseph's Son Mathew (supra):- '14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance. The sheet anchor of the suit by Varghese is the agreement for sale Ex A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance. Para-11 of Jayakantham (supra):- '11 In our view the material which has been placed on record indicates that the terms of the contract, the conduct of parties at the time of entering into the agreement and circumstances under which the contract was entered into gave the plaintiff an unfair advantage over the defendants. These circumstances make it inequitable to enforce specific performance.' Para-7.4 of Kamal Kumar (supra):- '7.4 Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff' 17. On the other principle of hardship and taking undue advantage, as held by the Hon'ble Apex Court in Parakunnan Veetill Joseph's Son Mathew (supra), Jayakantham (supra), and Kamal Kumar (supra), this Court is of the opinion that taking undue advantage of the defendant-respondent by the plaintiff-appellant is unfair and not justified. Thus, this Court is not inclined to accede to the contention of the plaintiff-appellant and the same is accordingly rejected. 18. In view of the above, it is not compulsory that the relief granted under the suit for specific performance need not be the same as prayed for and as well as there can be an alternative prayer. But in the present circumstance, as contended by the plaintiff-appellant that he is not interested to receive the amount towards alternative relief, this Court is leaving it open for the plaintiff-appellant in accordance with law for recovery of the said amount which according to him has been advanced to him by way of loan. 19. In view of the above, the present appeal is rejected affirming the Trial Court Judgment and Decree dated 18.03.2021 and 24.03.2021 respectively as we find no infirmities in the finding arrived at by the Trial Court. Thus this appeal stands dismissed. 20. Consequently, pending application(s), if any, also stand closed. Send back the LCRs.