Calcutta High Court (Appellete Side)
Prasanta Kumar Chakraborty vs Sri Somnath Dutta on 6 March, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Uday Kumar
F.A. No. 87 of 2007
With
CAN 3 of 2018
(Old No: CAN 1383 of 2018)
Prasanta Kumar Chakraborty
Vs.
Sri Somnath Dutta
Smt. Sabita Dutta alias Saba Haque
For the appellant : Mr. Dipankar Dhar,
Mr. S. Nath
For the respondents : Mr. B. N. Ray,
Ms. Shetparna Ray
Heard on : 30.01.2025, 13.02.2025,
20.02.2025
Judgment on : 06.03.2025
Sabyasachi Bhattacharyya, J.:-
1. The present first appeal has been preferred by the plaintiff in a suit for
specific performance of a contract. In the said suit, the original
defendant nos.1 and 3, namely Smt. Gita Dutta and Smt. Sabita
Dutta alias Saba Haque respectively, filed with their joint written
statement a counter claim for eviction against the plaintiff. The
defendant no.2 Somnath Dutta also filed a written statement
independently, virtually admitting the plaint case.
2. During the pendency of the suit, however, a separate amended written
statement was filed by the defendant no.1, whereby she disowned her
2previous joint written statement and counter claim and supported the
plaint case.
3. The original defendants Smt. Gita Dutta, Sri Somnath Dutta and Smt.
Sabita Dutta alias Saba Haque were initially arrayed as respondents
in the appeal. Smt. Gita Dutta having died during pendency of the
appeal, her name was expunged, as the two other respondents
survived her as her only heirs and legal representatives. Sri Somnath
Dutta had all along supported the plaint case and has not contested
the appeal. Since only the Defendant / Respondent No. 3 Smt. Sabita
Dutta alias Saba Haque has contested the suit and the appeal, she is
being referred as “the respondent” hereunder.
4. According to the plaintiff, an oral agreement was entered into between
the plaintiff and one Sukumar Dutta, the predecessor-in-interest of
the defendants, on June 12, 1995 whereby the said Sukumar Dutta
(since deceased) agreed to sell a garage space (the suit property) to the
plaintiff. Rs.10,000/- was paid as a part of the consideration in
advance and Rs. 40,000/- paid as loan, on the self-same date, that is,
June 12, 1995, for which two separate money receipts have been
produced in evidence by the plaintiff, which were marked as Exhibit
Nos.1 and 2 respectively.
5. On October 16, 1995, the oral agreement was reduced into writing by
entering into an agreement for sale of the said garage space, which
has been marked as Exhibit-3. According to the plaintiff, a plan of the
garage was also made over by Late Sukumar Dutta to the plaintiff and
has been marked as Exhibit-4. On July 21, 1997, non-judicial stamp
3paper was purchased, according to the plaintiff for completing the
purchase, which has been marked as Exbibit-5, but unfortunately on
July 25, 1997 the said Sukumar Dutta died.
6. Subsequently the defendants, in particular defendant nos. 1 and 3,
being heirs of the Late Sukumar Dutta, having refused to honour the
agreement, the plaintiff filed the suit for specific performance on June
25, 1995, giving rise the Title Suit No. 1085 of 1999.
7. On April 26, 2004, that is, during the pendency of the suit, a
registered deed of conveyance was executed by the defendant nos. 1
and 2, namely Gita and Somnath, in favour of the plaintiff in respect
of their 2/3rd share of the suit property, wherein they admitted that
out of the total agreed consideration amount of Rs.1,05,000/-, Rs.
1,00,000/- had already been paid by the plaintiff. The said vendors
received their 2/3rd share of the balance consideration of Rs.5,000/-.
A memo of consideration, showing the break-up of the payments of
consideration, was also made a part of the said sale deed.
8. The learned Trial Judge framed issues on all relevant points and
arrived at findings on the same upon consideration of the evidence on
record and hearing the arguments of both sides, but dismissed the
suit on the ground of limitation under Article 54 of the Schedule to the
Limitation Act, 1963.
9. On the other hand, the counter claim for eviction was simultaneously
decreed against the plaintiff.
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10. During pendency of the present appeal, the name of the defendant
nos. 1 and 2/respondents were expunged and only Sabita Dutta alias
Saba Haque remained as the defendant/respondent in the appeal.
11. While arguing the appeal, at the outset, learned counsel for the
respondent submits that only one appeal has been preferred against
the judgment and decree dismissing the suit and the decree passed in
the counter claim, which also has independent status equivalent to a
decree in a suit.
12. Thus, it is submitted that in the absence of two separate appeals, the
plaintiff/appellant is required to elect as to which of the decrees he
had challenged. At this, the Court posed such query to learned
counsel for the appellant who, on instruction, submits that the appeal
had been preferred against the decree dismissing the suit for specific
performance.
13. Accordingly, learned counsel for the respondents, at the
commencement of his arguments, submits that the present appeal is
not maintainable in the absence of any challenge to the eviction
decree granted in counter claim, since even if the present appeal is
allowed, thereby granting specific performance of the agreement for
sale, the defendant/respondent would still be equipped with the said
eviction decree passed on her counter claim and be able to evict the
appellant.
14. Learned counsel for the appellant contradicts such submission and
argues that even if the dismissal of the suit is set aside independently,
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the existence of the eviction decree would not affect the
plaintiff/appellant adversely.
15. Learned counsel for the appellant contends that the finding of the
learned Trial Judge to the effect that the suit was time-barred is bad
in law. It is submitted that the language of the agreement dated
October 16, 1995 was ambiguous and did not fix any specific time for
execution of the sale deed; thus, time was not the essence of the
contract.
16. It is argued that in terms of Clause 1 of the agreement, the vendor was
to sell and the purchaser was to purchase the suit property and in the
same breath, the said property, being a covered space measuring more
or less 140 sq.ft. built-up area on the ground for building, had to be
made over to the purchaser after completion of the construction
within six months from the date of the agreement for the use and
occupation of the purchaser in a habitable condition. In the latter part
of Clause 1 of the agreement, it was mentioned that Rs. 50,000/- was
being paid on the date of signing of the agreement as earnest money
and the rest of the agreed consideration was to be paid at the time of
making over possession of the said covered space-in-question to the
purchaser. The obligation of the vendor, as per the said agreement, to
execute and register a proper deed of conveyance unto and in favour
of the purchaser, arose after such handing over of possession.
17. Clause 2 of the agreement, it is argued, provided that the purchaser
was to send a draft conveyance to the vendor after such making over
of possession and the registration would be completed within one
6
month of such making over of possession. Thus, there was no time-
limit stipulated in the contract for execution of the deed of conveyance
in terms thereof within six months from the agreement and the second
limb of the third column of Article 54 of the Schedule to the Limitation
Act, and not the first limb, would be applicable. Accordingly, the cause
of action for the suit arose on the first refusal to perform the
agreement on the part of the heirs of Late Sukumar Dutta after his
demise on July 25, 1997 and the suit was filed within three years
thereafter.
18. Learned counsel appearing for the plaintiff/appellant next contends
that in view of execution of a registered sale deed pursuant to the
agreement by two out of three of the heirs of Late Sukumar in respect
of their 2/3rd share, admitting the plaint case, it was incumbent upon
the remaining defendant also to execute such a deed in respect of her
1/3rd share.
19. It is submitted that a draft conveyance deed was prepared on July 21,
1997 and the original vendor was all along ready and agreeable to
execute the deed during his lifetime, which, however, could not be
done only due to the unfortunate demise of the original vendor
Sukumar Dutta on July 24, 1997, that is, mere three days after the
draft conveyance being prepared.
20. In fact, the original defendant nos.1 and 2, Gita and Somnath, had
agreed in principle to execute the sale deed in terms of the agreement
in favour of the plaintiff but merely sought a clarification by a written
letter regarding the proof of the consideration amount paid, which was
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sufficiently furnished by the plaintiff. All these, it is argued, are
evidenced by the materials on record.
21. It is submitted that the citation relied on by the learned Trial Court is
not applicable in the facts of the present case, since no time has been
fixed in the present case in the agreement itself, for performance of the
same.
22. Learned counsel for the appellant cites Ahmadsahab Abdul Mulla v.
Bibijan and Others, reported at (2009) 5 SCC 462, where it was held
that the expression “date fixed for the performance” in Article 54 is a
crystallized notion which is clear from the fact that the second part
“time from which period begins to run” refers to a case where no such
date is fixed. To put it differently, when a date is fixed, it means that
there was a definite date fixed for doing a particular act. Even in the
second part the stress is on “when the plaintiff has notice that
performance is refused” which also speaks about a definite point of
time. In that sense, both the parts refer to definite dates; so there is
no question of finding out an intention from other circumstances. In
the present case, as argued earlier, since no date was fixed for the
performance of the agreement, Article 54 is not applicable at all.
23. Learned counsel for the appellant also relies on Madina Begum and
another v. Shiv Murti Prasad Pandey and others, reported at (2016) 15
SCC 322, where a similar construction of Article 54 was given by the
Supreme Court.
24. In the said case, the Supreme Court further observed that in a first
appeal under Section 96 of the Code of Civil Procedure, the Appellate
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Court must consider all issues and evidence led by the parties before
recording its findings. On the facts of the case, it was held by the
Supreme Court that the High Court in the said case had erred in
deciding only a preliminary issue by holding that the suit was barred
by limitation and accordingly taking the view that consideration of the
other issues were unnecessary.
25. It is thus contended that this Court, sitting in first appeal, ought to
adjudicate on all the other issues as well, along with the limitation
point, for which the evidence available on record is sufficient. It is also
submitted that the learned Trial Judge discussed all issues.
26. Learned counsel appearing for the defendant/respondent Smt. Sabita
Dutta alias Saba Haque argues that there were interpolations by hand
in the purported agreement dated October 16, 1995 (Exhibit-3). Thus,
the very existence of the said agreement is doubted.
27. In Exhibit-5, which is a purported draft deed of conveyance executed
on a stamp paper, contains no date except the year 1997 and as such,
the date of execution of the same cannot be ascertained.
28. It is further argued that there is contradiction in the plaint case
inasmuch as the proposed draft deed of conveyance allegedly sent by
the plaintiff was between the heirs of the late original vendor Sukumar
Dutta and one Munmun Chakraborty, wife of the plaintiff. This, it is
submitted, was in contradiction with the agreement which
contemplated that the deed was to be executed in favour of the
plaintiff himself. Also, in the purported draft deed, the consideration
was mentioned as Rs.75.000/-, in contradistinction with the amount
9
of Rs.1,05,000/-, which was mentioned as the total consideration in
the disputed agreement.
29. It is argued that as per the plaint case, the oral agreement dated June
12, 1995 was reduced into writing on October 16, 1995, which relates
back to June 12, 1995. Hence, the limitation period began to run from
six months after June 12, 1995, the date of the alleged verbal
agreement. Learned counsel for the respondent places heavy reliance
on the language of the agreement dated June 16, 1995, to argue that
same is unambiguous as to six months from the date of the agreement
being the stipulated time for the parties to execute a deed of
conveyance in terms of the agreement. Hence, the suit filed in 1999
was rightly held by the learned Trial Judge to be barred by limitation.
30. The expression “after completion of the construction” in the agreement
was disjunctive from the provision in Clause 1 thereof that the vendor
shall sell and the purchaser shall purchase the disputed property
within six months from the date of the agreement.
31. Thus, the learned Trial Judge, it is submitted, was justified in holding
that the suit was time-barred.
32. It is submitted that Exhibit-2, a money receipt for Rs.40,000/- shows
that the said amount was paid by way of a loan to the original
proposed vendor Sukumar Dutta and as such could not be treated to
be a part of the consideration as per the plaint case. In the absence of
any memorandum of consideration or the mode of payment thereof
being a part of the agreement itself, the plaint case of payments being
made ought to be disbelieved.
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33. The agreement is a transaction independent of the loan given, if any,
to the tune of Rs.40,000/- and there is nothing in the agreement to
connect the two. Thus, it is argued, the said amount cannot be treated
to be a part of the advance consideration for the proposed sale.
34. Learned counsel for the respondent further argues that the statements
of P.W.2, purportedly a Civil Engineer and P.W.1, the plaintiff himself,
as regards subsequent payment of Rs.50,000/- by the plaintiff to Late
Sukumar Dutta is not supported by any independent receipt or
note/memorandum in the agreement.
35. It is submitted that there was collusion between the original defendant
no.2, the son of the Late Sukumar Dutta, and the plaintiff. Thus, the
admission of the said defendant of the plaint case cannot bind the
present respondents.
36. The reason for the controversy between the defendants was the
marriage contracted by the present respondent outside the religion of
her parents to a Muslim gentleman and as such, it is submitted that
such controversy boiled down to the other defendants taking a stand
contrary to her.
37. It is reiterated that in the teeth of the eviction decree which already
stands in favour of the defendant no.3/respondent, the appellant,
even if he succeeds in the present appeal, would have a toothless
decree of specific performance.
38. During hearing, the court indicated to the parties that it might rely on
the judgment of Fatehji and Company and another v. L.M. Nagpal and
others, reported at (2015) 8 SCC 319, and both parties, upon being
11
put to such notice, responded to the ratio laid down therein. In the
said judgment, it was inter alia observed that the fact that the
plaintiffs were put in possession of the property agreed to be sold on
the date of the agreement itself would not make any difference with
regard to the limitation for filing the suit for specific performance and
that the courts below therein had rightly held that Article 54 of the
Limitation Act does not make any difference between a case where
possession of the property had been delivered in part performance of
the agreement or otherwise. Also, if any permission was to be obtained
prior to the performance/completion of the contract, the mere fact
that the defendants had not obtained the said permission would not
lead to the inference that no cause of action for filing the suit for
specific performance would arise. Learned counsel for the appellant
submits that the said ratio is not applicable to the present case in the
absence of there being any date fixed for performance of the contract.
39. Upon consideration of the arguments of the parties and the materials
on record, the Court comes to its conclusions under the following
broad heads:
Limitation
40. Crucial to the adjudication on limitation in the present case is the
language in which the agreement dated October 16, 1995 is couched,
more particularly, the habendum clause thereof. Clauses 1 and 2 of
the agreement are germane in such context and are re-produced
hereinbelow:
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“1. The Vendor shall sell and the Purchasers shall
purchase the cover space measuring more or less 140 Sq.ft.
built-up area of on the ground floor of the building be made
over to the purchase after completion of the construction within
Six months from the date of Agreement for their use and
occupation inhabitable condition at Premises No. 11A, Puran
Chand Nahar Avenue, Calcutta – 700 014 under P.S. Taltola,
fully described in the schedule hereinbelow and free from all
per Sq.ft.
encumbrances and liabilities at a Rs. 750.00 (Rupees Seven
hundred fifty per sq.ft.) only out of which a sum of Rs.
50,000.00 (Rupees Fifty thousand only is paid this day the
16th day of October, 1995 on signing this agreement as
Earnest Money in part-payment of the said agreed
consideration, and the rest at the time of making over
possession of the said cover space in question to the
Purchasers. The vendor shall remain obliged to execute and
register a proper Deed of Conveyance unto and in favour of the
Purchaser, at the cost and expenses of the Purchaser.
2. The Purchasers shall send draft conveyance to the
vendor after making over possession of thecover space of the
said building and the Registration shall be completed within
one month from the date of making over possession of the said
cover space by the Purchaser.”
41. Despite the construction of the first sentence being a bit complicated,
there is not much difficulty in construing the intention of the parties
therefrom. The Clauses quoted above provide that the vendor shall
sell and the purchaser shall purchase the covered space described
therein which would be “made over to the purchaser after completion
of the construction within six months from the date of Agreement for
13
their use and occupation in habitable condition” … and free from all
encumbrances and liabilities. Thus, it is a continuous sentence and
we cannot disjoint or cull out the phrase “within six months from the
date of agreement” and cut-paste and connect the same with the first
part of the sentence which says “the vendor shall sell and the
purchaser shall purchase”.
42. Doing so would be an affront against the clear language of the said
sentence, since the provision in the clauses regarding the intended
sale and purchase was followed by the building being made over to the
purchaser after completion of the construction for their use and
occupation in habitable condition. The time stipulated of six months,
conveyed by the expression “within six months from the date of the
agreement” comes right in between the phrases “after completion of
the construction” and “for their use and occupation in habitable
condition”. Thus, there cannot be any manner of doubt, on a plain
reading of the said sentence, that there is no confusion regarding the
six months’ period qualifying the completion of the construction for
the purchaser’s use and occupation in habitable condition and did not
circumscribe the sale itself.
43. Such notion is further corroborated by the last part of Clause 1, which
contemplates the earnest money of Rs.50,000/- to be paid
simultaneously with the agreement and the balance to be paid at the
time of making over possession of the covered space-in-question to the
purchaser. In the very next sentence, it is stated that the vendor shall
remain obliged to execute and register a proper Deed of Conveyance
14
unto and in favour of the purchaser at the cost and expenses of the
purchaser.
44. The next numbered paragraph, that is Paragraph No.2 of the
agreement, is also crucial in the context. It provides that the
purchaser shall send a draft conveyance to the vendor after making
over possession of the covered space of the said building and only
thereafter the registration shall be completed within one month from
such date of making over possession.
45. Thus, it is amply clear from a conjoint reading of Clauses 1 and 2 of
the agreement that the draft conveyance would be sent by the
purchaser only after the vendor completing the construction within six
months and making over possession to the purchaser in habitable
condition, upon which registration would be completed within one
month. This bolsters the view that the draft conveyance deed and
registration of the said deed, upon which the sale would be completed,
would happen only after completion of the construction and depended
solely on such completion of the construction and handing over
possession, that too, in habitable condition, to the purchaser. Seen
from such perspective as well, the six months’ stipulation qualified the
completion of construction and handing over of possession in
habitable condition and not the execution of the deed.
46. Thus, even without taking resort to any external aid of construction,
the very language of the agreement itself leaves no manner of doubt,
even on a plain reading thereof, that time was not the essence of
contract insofar as the date of the agreement was concerned and the
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six months’ stipulation qualified not the execution of the deed of
conveyance but the completion of the construction and handing over
of possession to the purchaser by the vendor in habitable condition.
47. It is admitted by the defendant nos.3/present respondent in her
evidence-in-chief as D.W.2 that possession of the suit garage was
taken by the plaintiff on May 28, 1999, although allegedly forcibly,
whereas the suit was filed on June 25, 1999, that is, about a month
thereafter.
48. It is the plaint case that the possession was handed over by the
proposed vendor to the plaintiff in the end of June, 1997, which also
brings the suit within the three years’ limitation as prescribed in
Article 54 of the Schedule-I of the Limitation Act.
49. The first limb of the third column of Article 54 in the Schedule
provides the commencement of limitation to run from the date fixed
for performance whereas, the second limb provides that if no such
date is fixed, the limitation begins when the plaintiff has notice that
performance is refused.
50. The first limb is not applicable here, since the six months’ period
mentioned in Clause 1 of the agreement does not apply to the
execution of the proposed sale deed but the completion of the
construction by the vendor. If we take into consideration the ratio laid
down in Ahmadsahab Abdul Mulla (supra), the date of commencement
of limitation would crystallize on the date of refusal, which could
commence only after the handing over of possession. Even if we go by
the case of either of the parties, the date of handing over of possession
16
was within the limitation period of three years from the institution of
the suit and, as such, the suit was not time-barred. Hence, the
finding of the learned Trial Judge in the impugned judgment as to the
suit being barred by limitation is erroneous on the face of a plain
reading of the agreement as well as of the evidence on record.
51. As to the judgment referred to by the court in the matter of Fatehji
and Company (supra), the ratio laid down therein is not applicable in
the present case. The Supreme Court held in the said judgment that
irrespective of when the possession was handed over to the purchaser
and/or whether any preliminary formalities required by the agreement
were performed by the vendor, the limitation would commence from
the period as stipulated in the contract. In the said case, the period
was stipulated in the contract itself by mentioning a specific date, that
is, December 2, 1973, by which date the contract was to be performed.
Such position was accepted by the plaintiffs therein, since admittedly
there were extensions of the said period of six months, the last of
which fell outside the limitation period.
52. Contrary thereto, in the present case, as held above, the agreement
did not stipulate any time-limit for execution of the deed of
conveyance from the date of the agreement. In fact, there was no
time-limit stipulated at all and the six months’ period mentioned in
the contract qualified the date of completion of construction and
handing over of the same in habitable condition to the purchaser.
Thus, the said ratio does not make any difference insofar as the
present case is concerned.
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What was the amount paid as consideration?
53. Exhibit 1 is a money receipt of Rs.10,000/- paid by the proposed
purchaser to the proposed vendor Late Sukumar Dutta, where it has
been categorically mentioned that the payment was on account of
advance of the suit property. Thus, there cannot be any doubt that
the said sum was paid in lieu of part consideration. Doubt, if any,
might have arisen in respect of Exhibit 2, which is a receipt for
Rs.40,000/- paid as loan for six months by the proposed purchaser to
the vendor.
54. In the evidence of the plaintiffs, it has come out that the said amount
so obtained was used for completing the construction and for building
the house containing the suit space and thus, was used for the
purpose of the suit property.
55. P.W.1 and P.W.2 corroborate in their evidence that the vendor agreed
to adjust the said sum with the consideration paid. The conduct of
defendant nos. 1 and 2 in executing a sale deed subsequently in
favour of the plaintiff in pursuance of the agreement for sale regarding
their 2/3rd share, where they admit that the total consideration
already paid was Rs. 1,00,000/- including the amount of Rs. 40,000/-
initially paid as loan, further corroborates the adjustment of the said
amount of loan as a part of the consideration.
56. The argument of the respondent, that in the absence of a separate
memorandum of consideration in the agreement it cannot be said that
any advance was paid, is not tenable in the eye of law. The memo of
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consideration and the break-up of payments is generally given in the
final deed of conveyance executed in terms of an agreement and
absence of such a memo in the agreement, which would also have to
envisage future payments, cannot be fatal to the validity of an
agreement for sale under any law.
57. It has to be noted further that the trial court itself, upon appreciating
the evidence adduced, came to the conclusion that the money receipts
bearing Exhibits 1 and 2 and the agreement were genuine and the
existence of the same was believed.
58. The deed of conveyance subsequently executed by defendant nos.1
and 2, two of the heirs of Late Sukumar, the original vendor, in
respect of their 2/3rd share, on April 26, 2004 clearly narrates that the
entire amount of Rs.50,000/- was paid as advance initially on October
12, 1995 and the further balance of Rs.50,000/- was paid on October
16, 1995, along with the said agreement. They, accordingly, took their
2/3rd share of the remaining balance of Rs.5,000/- as consideration,
as evidenced from the sale deed dated April 26, 2004, executed by
defendant nos.1 and 2 during pendency of the suit.
59. It has to be borne in mind that all the defendants, including the
defendant no.3/respondent, claim through the original vendor Late
Sukumar Dutta and the evidentiary value of the admission of two of
them cannot be brushed aside insofar as binding effect on the third is
concerned, since the estate of the heirs of Late Sukumar, vis-à-vis
their liabilities regarding the agreement, is joint and non-severable in
that sense.
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60. Strictly speaking, such admission by the defendant nos.1 and 2 in
their individual capacities is not binding on the defendant
no.3/respondent. However, since such admission was in the capacity
of joint heirs of Sukumar, which is at par with the capacity of the
defendant no.3/respondent, such admission undoubtedly has a
strong evidentiary value insofar as the veracity of the plaint case is
concerned
61. Insofar as the payment of Rs.50,000/- simultaneously with the
agreement is concerned, the same is evidenced and recorded in the
agreement itself and does not require any further receipt or
memorandum of consideration in the agreement. In fact, the
memorandum of consideration and the breakup thereof as given in the
sale deed executed by the defendant nos.1 and 2 during pendency of
the suit in pursuance of the disputed agreement clearly enumerate the
payments of the initial Rs.10,000/- along with Rs.40,000/- dated
October 12, 1995 and the amount of Rs.50,000/- paid along with the
agreement on October 16, 1995 as admitted.
62. The recording of the payment of Rs.50,000/- simultaneously with the
agreement has not been rebutted by any cogent evidence by the
defendant nos.3/respondent whereas the same has been corroborated
in oral evidence by the plaintiff’s witnesses. In view of the learned
Trial Judge, in the impugned judgment, having categorically believed
the existence of the agreement dated October 16, 1995 while deciding
the issues in the suit, along with the receipts dated October 12, 1995,
the said payments cannot be avoided by the respondent.
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63. In fact, the very fact that there is no pleading or proof on the part of
the defendants to the effect that the purported loan of Rs.40,000/-
was ever repaid to the original vendor Late Sukumar, shows that by
the conduct of the parties, the plaint stand is strengthened to the
effect that such payment was adjusted with the advance consideration
paid for the intended purchase.
64. Thus, on a preponderance of probability, it is evident that the corpus
of advance payments, combining Rs.10,000/- (described as advance)
and Rs.40,000/- (initially described as loan) dated October 12, 1995,
in the absence of any evidence of repayment of such loan, goes on to
form cumulatively a part of the advance payment of consideration to
the tune of Rs.50,000/-. Supplemented by the payment of further
Rs.50,000/- as balance consideration on October 16, 1995, as
recorded in the agreement of even date, which has not been
disbelieved by the learned Trial Judge and such finding has not been
challenged either at the time of hearing of the appeal or by filing a
cross-objection by the respondents.
65. Hence, this Court is of the clear opinion, on the basis of the evidence
on record, that out of the total consideration of Rs.1,05,000/-,
Rs.1,00,000/- (10,000 + 40,000 + 50,000) had already been paid by
the plaintiff/purchaser to the proposed vendor Late Sukumar as
advance. Thus, the balance amount of Rs.5,000/- is only to be paid,
out of which 2/3rd had already been paid by the purchaser/plaintiff to
the vendors at the time of execution of the sale deed dated April 26,
2004 by the defendant nos.1 and 2 in respect of their respective
21
shares of the suit property and only 1/3rd of the balance amount of
Rs. 5,000/- remains to be paid to the defendant no.3/respondent.
Alleged interpolation in agreement
66. The respondent has sought to make out a case of interpolation in the
agreement dated October 16, 1995 on the strength of the handwritten
insertions in the same. However, the said case was not made out by
the joint written statement initially filed by the defendant no.3 along
with defendant no.1. For the first time, the allegation of interpolation
was sought to be made out in the evidence-in-chief of the defendant
no. 3, who adduced evidence as D.W.2. Thus, such oral evidence of
D.W.2 is beyond the pleadings of the defendant no.3 in her written
statement and, thus, cannot be looked into.
67. Even then, for abundant caution, this Court went carefully through
the original agreement dated October 16, 1995, marked as Exhibit 3
in the suit. It is clearly seen that each of the handwritten insertions is
either accompanied by the short signature of the parties against such
insertions individually, or by continuous signature of the parties on
the margin covering the portions of the handwritten insertions, which
is a commonly prevalent practice in execution of documents. Such
accompanying signatures clearly denote the authenticity of such
insertions.
68. Also, such insertions, contrary to the arguments of the respondents,
do not change any material facts of the agreement.
22
69. In fact, the written statement of defendant nos.1 and 3 (from which
defendant no.1 subsequently resiled by filing an amended written
statement disowning her statements in the first written statement),
contains contradictory allegations, one of which is that signatures of
Late Sukumar Dutta were taken on blank papers. If such be the case,
it defies logic as to why the person perpetrating such fraud would
unnecessarily include interpolations instead of having a clear
typewritten copy of the entire document on the blank papers.
70. Thus, the allegation of interpolation cannot be accepted. In fact, as
recorded above, the authenticity and existence of the agreement was
never disbelieved by the learned Trial Judge.
Whether the agreement dated October 16, 1995 was genuine
71. The case made out by the defendant no.3, initially jointly with
defendant no.1, in her written statement is mutually contradictory
insofar as the agreement is concerned. Three clearly contradictory
stands have been taken – first, that the document is fabricated and
forged, secondly that the vendor’s signatures were actually taken, but
on blank document and thereafter converted to the agreement, and
third, that the vendor did not know English, taking advantage of
which the agreement was executed in English.
72. If the second and third versions are to be considered, the existence of
the agreement and the authenticity of the signatures of the vendor
therein are also admitted by the defendant no.3/respondent, since in
case of blank papers being obtained or lack of knowledge in English,
23
fact remains that the execution of the agreement by the vendor is
admitted. Such case runs contradictory with and is mutually
exclusive with the case of the entire document being forged and
fabricated and a general denial in the written statement of defendant
no.3 of the very existence of the document as such. Hence, the
defence in that regard is itself suspect.
73. Moreover, no particulars of fraud have been pleaded in terms of Order
VI Rule 4 of the Code of Civil Procedure in the written statement of the
respondent, nor has any proof been furnished of such fraud being
perpetrated. Rather, it comes out in the oral evidence that there was
another agreement executed between one Ashoke Roy and Suresh
Marketing with Late Sukumar Dutta during his lifetime in English.
Thus, the lack of knowledge of Sukumar Dutta is immaterial, since he
admittedly executed several agreements in the said language.
74. The defendant no.3/respondent, in her cross-examination as D.W.2,
also admits her lack of knowledge regarding the payment of
Rs.50,000/- as part consideration. Hence, she could not have been in
a position to disprove such payment, having admittedly no knowledge
of the incident.
75. The respondent has submitted that there is no date on the stamp
paper which is marked as Exhibit 5, apart from the year 1997, and
that the said draft deed makes out a different case than the
agreement, being in the name of the wife of the plaintiff as purchaser
at a consideration of Rs.75,000/-, both of which are contrary to the
agreement.
24
76. However, nothing hinges on the same, since such preparation of a
draft deed is a superfluity and even if ignored, there are sufficient
other documents and corroborative evidence to prove the plaint case.
The defendant nos.1 and 2 have admitted the plaint case in totality
and executed a deed of conveyance in favour of the plaintiff during
pendency of the suit regarding their 2/3rd share in the property.
77. Moreover, the relief of specific performance has not been sought on
the basis of the said draft deed but it was only sought to be adduced
as a collateral piece of evidence. Even if it does not have any
evidentiary value to prove the plaint case, by itself it does not disprove
the plaint case either. Even if a draft conveyance was prepared in the
name of the plaintiff’s wife at a different consideration, the same was
never given effect to and would have no bearing on the issues involved
in the present suit and, thus, does not give a go-bye to the right of the
plaintiff to obtain a specific performance of the agreement dated
October 16, 1995. Hence, it is reiterated that nothing hinges on the
same.
78. Importantly, the learned Trial Judge, in the impugned judgment and
decree, has believed categorically the existence of the receipts and the
agreement dated October 16, 1995, respectively marked as Exhibits 1,
2 and 3.
79. Thus, the defence of the respondent that the said agreement was not
an authentic document is not proved, more so in the absence of any
cross-objection or argument challenging the said finding of the learned
Trial Judge.
25
Effect of the plaintiff not filing a separate appeal against the
counter claim decree of recovery of possession
80. The respondent has vehemently argued that the present appeal is not
maintainable in view of no challenge having been preferred against the
decree passed in the counter claim for recovery of possession.
However, the existence of the said decree of recovery of possession
passed in the counter claim does not per se operate as a bar to the
present appeal. Admittedly, the plaintiff is in actual physical
possession of the property, although the respondent labels the same
as forcible, from May 28, 1999. Evidence has been led by the
plaintiff’s witnesses in support of the contention that possession was
handed over in the year 1997 by the original vendor in favour of the
plaintiff. Paragraph nos.9 and 12 of the examination-in-chief of D.W.2
(present respondent) corroborates the possession of the plaintiff at
least from May 28, 1999 irrespective of the allegation that the same
was forcibly taken.
81. Even if the possession of the plaintiff in respect of the property was
“unlawful” due to the decree of khas possession or otherwise, and not
pursuant to the agreement-in-question, the same could at best hit at
any defence under Section 53A of the Transfer of Property Act to the
counter claim, if taken by the plaintiff, but could not, by itself, debar a
suit for specific performance of contract, which flows not from
possessory right but from an independent right on the strength of the
agreement dated October 16, 1995 and furnishes a chose-in-action in
26
favour of the plaintiff arising out of the said agreement, the existence
of which has been believed by the learned Trial Judge. Admittedly,
the plaintiff is still in actual physical possession of the subject
property till date and the counter claim decree of recovery of
possession has not yet been executed against the plaintiff.
82. The effect would be that in the event a decree of specific performance
is passed, the plaintiff/appellant would become the full and absolute
owner of the suit garage space, which would render the eviction decree
inexecutable, since the paramount title of the plaintiff, upon execution
of a deed of conveyance pursuant to the decree of specific
performance, would subsume his lesser rights as a mere occupier.
83. Even if we proceed on the basis of the sale deed executed during
pendency of the suit on April 26, 2004 by the defendant nos.1 and 2
(whose names have been subsequently expunged) in respect of their
2/3rd share of the suit property in favour of the plaintiff, pursuant to
the agreement-in-question, the plaintiff has already become a majority
shareholder of the suit property and as such, it is doubtful as to
whether the decree of recovery of possession can be executed against
the plaintiff, since the undivided ownership of the majority 2/3rd share
of the plaintiff in the suit property even on the present day would put
the plaintiff on a co-equal, if not better, footing with the defendant
no.3/respondent vis-à-vis title to the suit property.
84. Taking the worst, even if the eviction decree could be executed today,
the execution of a deed of conveyance in execution of the decree of
specific performance, which would be the obvious consequence if the
27
present appeal succeeds, would entitle the plaintiff/appellant to file a
suit for recovery of possession against the defendant no.3/respondent
immediately thereafter on the strength of paramount and absolute
title in the suit property, whereas the defendant no.3/respondent,
upon the appeal succeeding, would be denuded of any title in the suit
property whatsoever.
85. Thus, it cannot be said that the absence of challenge to the counter
claim for recovery of possession by way of a separate appeal would per
se affect the outcome of the present appeal.
Whether the matter should be remanded
86. In view of the above conclusion of this Court that the plaintiff is
entitled to a decree of specific performance to the extent of the 1/3rd
share of the defendant, since all the findings of this Court lead
towards the same, a consideration which would acquire relevance is
whether the matter should be remanded to the Trial Court for
re-adjudication on the other issues, as the suit was dismissed only on
the ground of limitation.
87. However, we decide against the same for the following reasons:
88. Order XLI Rule 24 of the Code of Civil Procedure provides that where
the evidence on record is sufficient to enable the Appellant Court to
pronounce judgment, the Appellate Court may, after re-settling the
issues, if necessary, finally determine the suit, notwithstanding that
the judgment of the court from whose decree the appeal is preferred
28
has proceeded wholly upon some ground other than that on which the
Appellate Court proceeds.
89. The present case stands on an even better footing, since there is no
reason for re-settling of issues as all the germane issues, from Issue
Nos. 2 to 4, on the relevant facts of the case, were already framed and
finally decided by the learned Trial Judge.
90. In fact, the parties had ample opportunity to lead evidence and
addressed in arguments all the germane issues even apart from
limitation and the learned Trial Judge categorically came to the
finding that the agreement dated October 16, 1995 and the money
receipts for Rs.10,000/- and Rs.40,000/- exist.
91. Even after coming to such conclusions, the suit was dismissed only on
the ground of limitation.
92. Thus, since this Court upsets the conclusion of the learned Trial
Judge on limitation and holds that the suit was filed within time as
stipulated in law, there would not arise any further occasion to re-
settle the issues or unnecessarily remand the matter back to the Trial
Court.
93. In fact, in the above discussions, we have added our own reasons
along with those of the learned Trial Judge to hold that the plaintiff is
otherwise entitled to a decree for specific performance of the
agreement against the defendant no.3/respondent. Hence, there is no
scope of remanding the matter unnecessarily, particularly in view of
more than a quarter of a century having elapsed between the
institution of the suit and this day.
29
94. Viewed from a different perspective, Order XIV Rule 2(1) of the Code of
Civil Procedure mandates the court, notwithstanding that a case may
be disposed of on a preliminary issue, to pronounce judgment on all
issues.
95. The only exception is carved out in sub-rule (2) of Rule 2 which
envisages two situations – where the issue relates to jurisdiction of the
court and/or a bar to the suit created by any law for the time being in
force – in which case the settlement of other issues are to be
postponed till after that issue is determined and the suit is to be
decided in accordance with the decision on that issue alone.
96. However, in the present case, no question has been raised as to lack
of jurisdiction of the court. As to the bar of limitation, the same was
at best a mixed question of fact and law in the context of the instant
case and could not have been decided at the outset prior to the other
issues within the contemplation of Order XIV Rule 2(2) of the Code.
Thus, rightly, the learned Trial Judge did not decide the issue of
limitation first by postponing the other issues but took up the same
along with the other issues and came to a decision on all the issues
independently, as mandated under Order XIV Rule 2(1) of the Code.
Hence, this is not a case that the suit was not decided on the other
issues. Since the learned Trial Judge held in the impugned judgment
that the suit was barred by limitation, the findings on the other issues
were treated to be academic.
97. Thus, as we find that the plaintiff is otherwise entitled to a decree of
specific performance against the respondent and set aside the
30
conclusion of the learned Trial Judge regarding the suit being barred
by limitation, we choose to exercise our powers under Order XLI Rule
24 of the Code and decide the appeal ourselves, instead of relegating
the same unnecessarily on remand to the Trial Court.
98. Accordingly, in view of the above findings and observations, we hold
that the plaintiff is entitled to a decree of specific performance of the
contract dated October 16, 1995 as against the respondent in respect
of the 1/3rd share of the defendant no.3/respondent in the suit
property. We also come to the conclusion that out of the total
consideration of Rs.1,05,000/- for the proposed sale, already an
amount of Rs.1,00,000/- (10,000 + 40,000 + 50,000) has been paid
respectively on October 12, 1995 and October 16, 1995 and the
balance amount of Rs.5,000/- only was left to be paid by the plaintiff.
Out of such balance amount of Rs.5,000/-, the defendant nos.1 and 2
have already executed a sale deed in respect of their 2/3rd share in the
property upon receipt of their 2/3rd share of the balance consideration
and the plaintiff/appellant is merely to pay the 1/3rd share of the
balance of Rs.5,000/- to which the defendant no.3/respondent is
entitled, which comes to Rs.1,667/-, rounded to the last rupee.
99. Accordingly, F.A. No.87 of 2007 is allowed on contest, thereby setting
aside the impugned judgment and decree dated August 31, 2006
passed by the learned Judge, Fourth Bench, City Civil Court at
Calcutta in Title Suit No.1085 of 1999 and granting a decree of
specific performance of the agreement dated October 16, 1995 in
favour of the plaintiff/appellant to the extent of the 1/3rd share in the
31
suit property of the defendant no.3/respondent, upon the
plaintiff/appellant paying the balance consideration amount of
Rs.1,667/- to the defendant no.3/respondent. The appellant shall
deposit such amount in the Trial Court within two (02) months from
date.
100. Upon such payment being made, the defendant no.3/respondent shall
execute a registered deed of conveyance in favour of the
plaintiff/appellant in terms of the agreement dated October 16, 1995
within one month thereafter.
101. In the event the defendant no.3/respondent fails to do so, it will be
open to the plaintiff/appellant to have this decree executed and to
have an appropriate deed of conveyance in respect of the 1/3rd share
of defendant no.3/respondent being executed through court in
accordance with law.
102. There will be no order as to costs.
103. A formal decree be drawn up accordingly.
104. CAN 3 of 2018 (Old No: CAN 1383 of 2018) is also disposed of
accordingly.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Uday Kumar, J.)
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