Calcutta High Court (Appellete Side)
& Ors vs Santosh Kr. Adhikary on 6 September, 2021
06.09.2021
RP
S.A.T 3888 of 2004
+
IA No.CAN 2 of 2004 (Old No.CAN 9437 of 2004)
(Via Video Conference)
r
Pandit Jeewan Lal Maliah (Deceased)
Represented by His legal heirs and representatives
& Ors.
Vs.
Santosh Kr. Adhikary
Mr. Soumalya Ganguli
... for appellants
Mr. Ganguli, learned advocate appears on
behalf of substituted appellants and submits, the trial
Court correctly dismissed the suit but the lower
appellate Court erred on two counts in reversing the
judgment and decreeing it. Firstly, the suit was
barred by limitation and secondly, there could not be
decree for specific performance based on mere money
receipts, which did not mention the purpose of
payment.
From the decree in original suit we find, the
suit was filed on 13 th February, 1980. This was found
also by the lower Appellate Court, to hold that the
suit was not barred by limitation. The money receipts
are dated in August, 1977. The suit, though
originally for permanent injunction but was later
amended to become a suit for specific performance.
Amendment relates back to the date of the suit. On
this count there is not involved a question of law.
Plaintiff's case, as more elaborately stated by
the trial Court in its judgment, is that he was licencee
in respect of the tank. Defendant no.1 had declared
his intention to sell it in August, 1977, originally for
Rs.9000/- and ultimately for Rs.12,000/-. The money
receipts marked exhibits show aggregate payment of
Rs.11,500/- by year 1979.
In reversing the judgment, the lower
appellate Court noticed that defendant no.1 had
appeared through his constituted attorney,
Manoranjan Samaddar to submit written statement,
denying allegations in the plaint. Said constituted
attorney is the person, to whom plaintiff claimed to
have paid almost the entire consideration. In this
context we reproduce below the lower appellate
Court's appreciation of said defendant's deposition in
cross-examination.
"But we get from cross-exam that Manoranjan
Samaddar was his empowered Attorney as it
was not possible for him to look after the
entire estate of Raj Bari. He has further
admitted that the plaintiff was his praja. He
has further stated that before 10 years many
persons used to come before him, and he
used to give words to them. He has further
stated that no staff for his estate complained
against Manoranjan Samaddar regarding
illegal connection of money. He has further
stated that he cannot remember whether he
promised any person in respect of transfer of
suit tank. He did not remember whether any
talk of such sell was going on with the
plaintiff. He has further stated that
Manoranjan Samaddar though retired from
the estate he is still alive. He has further
stated that Sri Samaddar is his obedient
staff. He has no knowledge as to whether Sri
Samaddar accepted Rs.12,000/- from the
plaintiff or not."
While the trial Court made error regarding
date of filing of the suit and consequently it's finding
on limitation, the lower appellate Court went on to
adjudicate the controversy, in light of defendant no.1
having had denied knowledge of the transaction
through his constituted attorney and later deposed
that said person had been entrusted to look after the
estate. The written statement was filed in dealing
with allegations in the plaint. It was done through
the person entrusted. Subsequent oral testimony was
ignorance of the agent's activity and lack of his
authority to enter into the transaction. The lower
appellate Court found defendant no.1 was Raja and
plaintiff was Praja. This appreciation of the evidence,
as the final Court of fact, does not show involvement
of any question of law, arisen for admission of the
appeal.
SAT 3888 of 2004 along with IA No.CAN 2 of
2004 (Old No.CAN 9437 of 2004) are dismissed.
(Arindam Sinha, J.)
(Sugato Majumdar, J.)
