Calcutta High Court (Appellete Side)
Prabir Das & Anr vs Kinu Ram Mondal on 11 April, 2022
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
And
The Hon'ble Justice Sugato Majumdar
FA No. 180 of 2010
Prabir Das & Anr.
Vs.
Kinu Ram Mondal
For the Appellants : Mr. Rahul Karmakar
Mr. Nitai Chandra Saha
Mr. Debabrata Roy
For the Respondent : Mr. Debjyoti Basu
Mr. Anuran Samanta
Heard on : 24th March, 2022
Judgment on : 11th April, 2022
Sugato Majumdar, J.:
1. The present appeal is directed against the Judgment and Decree
dated 15th March, 2010 passed in Title Suit No. 125 of 2005 by the
Learned Civil Judge, Senior Division, 7th Court, Alipore, whereby
the suit for specific performance of the Appellants was dismissed.
2. Briefly, the plaint case is that the Respondent, being the absolute
owner of schedule - B land, entered into an agreement for sale on
13.06.1995 with the Appellants in respect of that property for a
consideration of Rs. 6,500 per cottah. In terms of the agreement,
the Appellant was to develop the land by filling earth and making
roads therein. On execution of the agreement, the Appellants paid a
sum of Rs. 62,501/- to the Respondent. It is the case of the
Appellant that about rupees five lakhs were invested by the
Appellants for development of the land and they paid further sum
of consideration money to the extent of Rs. 2, 24, 400/-, from time
to time, to the Respondent, apart from the initial payment of Rs.
62,501/-. The Respondent sold out, from time to time, in terms of
the agreement, 2 bighas 1 cottah 15 chitaks of land, to different
persons nominated by the Appellants wherein the later stood as a
confirming party. It is the Appellants' case that so far as remaining
2 bighas 15 cottahs 7 chitaks of land are concerned, the
Respondent deliberately neglected to sell the same land to the
Appellants or nominated persons. The matter was intimated to
Zinjira Bazar Police Investigation Centre on 01.12.2001 in the form
of a general diary having GD Entry No. 23 dated 01.12.2001.
Thereafter, at the intervention of the well - wishers, the Appellants
tried to settle the matter. From 28.02.2003 onwards, the
Respondent was unwilling to abide by the terms and conditions of
the agreement and finally the Respondent cancelled the agreement
for sale dated 13.06.1995 through a letter dated 27.03.2003
written by the advocate of the Respondent. In the wake of such
revocation, criminal proceeding was initiated by the Appellants and
the original suit in respect of the unsold part of schedule "B"
property which is described in schedule "A" of the plaint was filed
praying for specific performance of the contract, along with prayers
of permanent injunction restraining the Respondent from selling,
transferring or encumbering the suit property, a prayer of
mandatory injunction directing the Respondent to execute and
register a deed of conveyance; along with damages and other
remedies.
3. The suit was contested by the Respondent. In the written
statement, execution of the agreement for sale supported by
consideration at a rate of Rs. 6,500 per cottah was admitted. It was
denied that possession was handed over to the Appellants. It was
also specifically averred that time was essence of contract. It was
contended that the Appellants developed a better portion of the
lands covered under agreement for sale which were sold to different
purchasers and that the Appellants showed reluctance and made
delay in developing the rest of the land described in schedule "A" of
the plaint. Since the Appellants failed to develop the remaining
part of the land within stipulated period of time, agreement for sale
was revoked with effect from 01.01.1999 in terms of letter dated
27.03.2003 written by the Learned Lawyer of the Respondent.
4. The learned Trial Court framed as many as six issues: -
i) Is the suit maintainable in the present form and in
law?
ii) Have the plaintiffs any cause of action to file the
instant suit?
iii) Is the suit barred by the law of limitation?
iv) Is the agreement for sale dated 13.06.1995
subsisting?
v) Are the plaintiffs entitled to the decree prayed for?
vi) To what other relief or reliefs, if any, are the plaintiffs
entitled.
5. The Trial Court, while deciding the Issue No. 1 & 2, taken up
together, came to the conclusion that the document being
agreement for sale dated 13.06.1995 (Ext. 9) is inadmissible in
evidence as the same is not properly stamped and although
admitted in evidence without objection, there is no bar in raising
such objection at later stage, even at the appellate stage. It is
observation and finding of the Trial Court that no cause of action
can arise, on the basis of an inadmissible document, and the suit
itself, based on an inadmissible document, is not maintainable.
Deciding on the Issue No. 3, it was observed that time was not
essence of the contract, in this case. But, as concluded by the Trial
Court, the suit was filed well beyond three years from the date of
notice of refusal to perform. Since date of notice of refusal to
perform was 01.12.2001, and the suit was filed on 18.03.2005, the
suit is barred by the law of limitation. The Trial Court, since held
that the suit was not maintainable, did not decide upon the Issues
No. 4, 5 & 6 on merit. In nutshell, the Trial Court dismissed the
suit as the same was not filed within time limit and since the same
was based on irregular and insufficiently stamped document.
6. Mr. Karmakar appearing for the Appellants submitted that finding
of the Trial Court that the suit is barred by law of limitation is
erroneous. The Trial Court failed to take into consideration that
the Appellants lodged a general diary in Zinjirabazar Police
Investigation Centre on 01.12.2001 alleging delay in performance of
the agreement for sale dated 13.06.1995. The letter itself is
marked as Ext. A, produced by the Respondent. The Appellant,
never stated in Para.7 of the plaint that the Respondent committed
breach of the agreement by that time, so as to give rise of the cause
of action from then on. In Para. 8, of the plaint it was stated that
attempts were made to settle the dispute through intervention of
the friends. Referring to cross-examination of the D.W. 1, it was
pointed out that in D.W. 1's cross examination there was an
admission in cross-examination that there was no question of
cancellation of the agreement for sale before 27.03.2003. It is
stated in Para. 7 of the affidavit-in-chief of the Respondent that the
agreement for sale dated 13.06.1995 was terminated by letter dated
27.03.2003 with effect from 01.01.1999. In view of such admitted
fact, the finding of the Trial Court that cause of action arose on
01.12.2001 is erroneous and result of improper appreciation of
material evidences. Mr. Karmakar further submitted that according
to Article 54 of the Limitation Act, 1963, period of limitation for
specific performance of contract is three years from the date fixed
for the performance of it or, if no such date is fixed, when the
plaintiff has noticed that performance is refused. According to him,
the agreement for sale dated 13.06.1995 did not specify any date
for performance, though a time frame of two years was fixed for
payment of consideration money. In absence of any fixed date for
performance of the agreement, date of notice of refusal to perform
should be relevant. It is evident and admitted that cause of action
arose on and from 27.03.2003, as Mr. Karmakar continued, and
the suit, therefore, is not barred by the law of limitation. He relied
upon the ratio of Ahmadsahab Abdul Mulla Vs Bibijan & Ors.
[(2009) 5 SCC 462] and Madina Begum & Anr. Vs Shiv Murti
Prasad Pandey & Ors. [(2016) 15 SCC 322] in support of his
contention.
7. The next point argued by the Mr. Karmakar is that the Trial Court
erroneously held that the agreement for sale is inadmissible for
insufficiency of stamp duty. According to him, the Trial Court
failed to take into consideration and failed to apply the principles of
law enshrined in Section 36 of the Indian Stamp Act 1899 and
Order 13 Rule 3 of the Code of Civil Procedure 1908. Relying on the
ratio of Shyamal Kumar Roy Vs Sushil Kumar Agarwal [(2006)
11 SCC 331], he submitted that the agreement for sale dated
13.06.1995 was admitted as evidence without any objection of the
Respondent. Therefore, the Respondent lost his right to object its
admissibility. Mr. Karmakar also relied upon the findings and
observation of Co-Ordinate Bench of this Court in Monjur Alam
Mallick vs Rajib Saha [2019(2) ICC 657 (Cal)]. Mr. Karmakar
also referred to the ratio of Govind Prasad Chaturvedi vs Hari
Dutt Shastri & Anr. [(1977) 2 SCC 539] to buttress his argument
that time is not essence of the contract when the same relates to
sale of immovable property.
8. Mr. Basu, appearing on behalf of the Respondent, at the very
outset, stated that he supports the impugned judgment and decree,
which, according to him, does not suffer from any infirmity or error.
He argued in respect of the point of limitation that the P.W.1 in
examination-in-chief clearly admitted that in the year 2001 it came
to his knowledge that the Respondent committed breach of the
agreement and that such breach was informed to the Zinjirabazar
Police Investigation Centre on 01.12.2001 in terms of Ext. A. This
is admission on the part of the Appellants that they were aware of
and had notice of the Respondent's alleged refusal to perform the
agreement which cannot be assailed by the Appellants. Referring
to Article 54 of the Limitation Act and relying upon the ratio of
Madina Begum's case (supra), Mr. Basu elaborated that period of
limitation in case of specific performance of a contract begin to run
either from the date fixed for performance or where no date is fixed,
from the date when the Plaintiff has notice of refusal of
performance. In the instant case, as Mr. Basu explained, date is
fixed two years after the date of execution of the agreement for sale.
Period of limitation starts from that date. Even otherwise, if it is
assumed that no date is fixed, refusal came to the notice of the
Appellants/Plaintiffs on 01.12.2001, as admitted by P.W.1 in his
deposition. Since admitted fact need not be proved, it is well
established that the notice of refusal to perform came to the notice
of the Appellants on 01/12/2001. Therefore, as argued, the suit
should have been filed within a period of three years since then.
Since the suit is filed in the year 2005, it is hopelessly barred by
limitation.
9. Mr. Basu further submitted that the Trial Court correctly came to
the conclusion that the insufficiently stamped agreement for sale is
inherently inadmissible as evidence and no rule can cure it. Since
the agreement for sale is inadmissible as evidence, the conclusions
reached by the Trial Court, is correct.
10. We have heard rival submissions.
11. Since the disputes between the parties herein revolve round
the agreement for sale dated 13.06.1995 (Ext.1) and since the Trial
Court came to a conclusion that the suit, based on inadmissible
document, is not maintainable, the issue of its admissibility of the
said agreement for sale should be addressed by us at the outset.
Section 33 (1) of the Indian Stamp Act casts a duty on every person
having authority to receive evidence or in charge of public office,
except an officer of police, to impound an insufficiently stamped
instrument. There is amendment of Section 33 of the Indian Stamp
Act, 1899 in the State of West Bengal. In terms of the amendment
it is incumbent upon the Collector to impound insufficiently
stamped instrument produced before him. When such an
insufficiently stamped document is brought to the notice of the
Collector or it otherwise comes to his notice, he may call for the
instrument for the purpose of satisfying himself as to adequacy of
stamp placed on it and to proceed to deal with the instrument in
terms of Section 38 of the Act. Proviso to the amended section
states, however, that no action under the sub-section shall be
taken after a period of four years from the date of execution of the
instrument. Section 36 of the Indian Stamp Act, 1899 provides for
a "stand alone" clause. The section reads as follows:-
"36. Admission of instrument where not to be
questioned - where an instrument has been admitted in
evidence, such admission shall not, except as provided in
Section 61, be called in question at any stage of the same
suit or proceeding on the ground that the instrument has
not been duly stamped."
Effect of Section 36 of the Indian Stamp Act, 1899, along with
Section 33 as amended in the State of West Bengal, was discussed
at length by Supreme Court of India in Shyamal Kumar Roy vs.
Sushil Kumar Agarwal [(2006) 11 SCC 331]. Deciding on the
issue whether an insufficiently stamped development agreement,
which was admitted in evidence without objection, was admissible
or not, it was observed that Section 36, provides for a "stand alone"
clause. It categorically prohibits a court of law from reopening a
matter in regard to the sufficiency or otherwise of the stamp duty
paid on an instrument in the event the same has been admitted in
evidence. Only one exception has been made in this behalf viz. the
provisions contained in Section 61 providing for reference and
revision. In a case where Section 33 of the Indian Stamp Act,
1899, as amended by the West Bengal Act would be applicable, the
proviso appended to sub-section (5) carves out an exception that
no action would be taken after a period of four years from the date
of execution of the instrument. Relying upon the ratio of Javer
Chand vs. Pukkraj Surana [(1962) 2 SCR 333], it was further
observed and held that if a party to the lis intends that an
instrument produced by the other party being insufficiently
stamped, should not be admitted in evidence, he must raise an
objection thereto at the appropriate stage. He may not do so only
at his peril. Objection as regards admissibility of a document,
thus, specifically is required to be taken that it was not duly
stamped. On such objection only the question is required to be
determined judicially. This issue of objection as to the admissibility
of a document was considered in details by the Supreme Court of
India in R.V.E. Venkatachala Gounder vs. Arulmigu
Viswesaraswami & V.P. Temple & Anr. [(2003) 8 SCC 752]. It
was observed that Order 13 Rule 4 of the Code of Civil Procedure
1908 provides that every document admitted in evidence in a suit
being endorsed, signed or initiated by the Judge amounts to
admission of the document in evidence. An objection to the
admissibility of the document should be raised before such
endorsement is made and the court is obliged to form its opinion
on the question of admissibility and express the same on which
opinion would depend on the document being endorsed as
admitted or not admitted in evidence.The objections as to
admissibility of documents in evidence which is itself
inadmissible in evidence other than one where the objection does
not dispute the admissibility of the document in evidence but is
directed towards the mode of proof alleging the same to be irregular
or insufficient, is not excluded and is available to be raised even at
a later stage or even in appeal or revision. In the other case, where
objection is directed towards the mode of proof alleging the same to
be irregular or insufficient, the objection should be taken when the
evidence is tendered and once the document has been admitted in
evidence and marked as an exhibit, the objection that it should not
have been admitted in evidence or that the mode adopted for
proving the document is irregular cannot be allowed to be raised at
any stage subsequent to the marking of the document as an
exhibit. This is a rule of fair play. A belated objection, not taken in
appropriate time, will put a party, producing the document, in
surprise. Had any objection been raised at the opportune and
appropriate time, the party producing the document, would have
cured such defect, whereas, a belated objection, would deprive that
party, producing the document, to cure such defect. This principle
was reiterated in Dayamathi Bai v. K.M. Shaffi [(2004) 7 SCC
107] by the Supreme Court of India. In Monjur Alam Mallick vs.
Rajib Saha [2019 (2) ICC 657 (Cal)], a Co-ordinate Bench of this
Court, referring to various authorities on the issue, held that if a
party fails to raise any objection with regard to admissibility of a
document on the ground of any defect like insufficiency of stamp,
the said party is clearly estopped from raising any objection at the
hearing of the suit regarding its admissibility. The objection, if
any, has to be raised at the time when the document is tendered in
evidence and not subsequently for the simple reason that if such
objection is considered to be valid then a party would have a
chance to remove the defects and/or deficiency in the document in
order to make it admissible.
12. Coming to the case in hand, the agreement for sale dated
13.06.1995 (Ext. 1) is an undisputed document. Execution and
payment of consideration money acting upon the agreement is not
disputed by either of the parties. The suit was filed in the year
2005, almost after ten years of execution of the agreement for sale.
The Respondent did not raise any objection at the time of
producing and admitting the document as evidence. It is nobody's
case that the document, namely, Ext.1 is itself inadmissible. It is
rather a case that the agreement for sale dated 13.06.1995 (Ext.1)
is inadmissible for insufficiency of stamp. Admission of the
document was allowed without any objection. Therefore, objection
on admissibility of the document cannot be raised at later stage of
the suit. The Trial Court, although referred to Dayamathi Bai's
case (supra) manifestly failed to understand, appreciate and apply
the principles of law while concluding that the agreement for sale
dated 13.06.1995 (Ext. 1) is inadmissible in evidence. The finding
is not sustainable and is liable to be set aside. We, therefore, hold
that the objection as to admissibility of the agreement for sale (Ext.
1) cannot be raised at subsequent stage of the suit where such
objection was not raised at the time of admission of the document
and the Trial Court erred in law in allowing the objection of
admissibility at later stage which, in view of settled principles of
law, is not permissible.
13. Next we address the finding of the Trial Court that the suit is
not maintainable as it is based on a document which is not
admissible in evidence. It is decided by the Trial Court on Issue
No.2 :"Therefore, cause of action which arose on the basis of the
impugned document also cannot arise."This is a queer proposition
of law. Even if the agreement for sale appears to be inadmissible to
the Trial Court, it should have proceeded with and decide the suit
on the basis of other evidences. There is no proposition of law that
because of inadmissibility of one of the documentary evidences, a
suit cannot be decided upon and should be considered as not
maintainable or that no cause of action arises at all. Such a finding
is erroneous, contrary to legal principles and is not sustainable.
We, therefore, set aside this finding of the Trial Court.
14. Once it is concluded by us that objection as to admissibility of
the agreement for sale dated 13.06.1995 (Ext. 5) cannot be agitated
at later stage of the suit and since the said document had already
been admitted in evidence, there is no bar to rely upon Ext.-1. In
such perspective, the issue of limitation can be looked into. Clause
1 of the said agreement stipulated that consideration money shall
be paid within two years from the date of execution of the
document. Clause 1 further stipulates that the Respondent shall
execute sale deeds in favour of the Appellants or in favour of the
persons selected by the Appellants at a time or in different times.
The Respondent shall take measurement and make plan of the land
and shall do such other things as are mentioned in the agreement.
Except for payment of consideration money, no time is fixed for
performance of the agreement. Much emphasis was laid by Mr.
Basu on oral testimony of P.W. 1 contained in question 19 of the
affidavit-in-chief where the P.W. 1 stated that due to deliberate
refusal by the Respondent to sell the entire land, he informed the
entire incident to the Officer-in-Charge of Zinjira Bazar
Investigation Centre on 01.12.2001. It is the contention of Mr.
Basu that the statement amounts to admission that notice of
refusal came to the knowledge of the Appellants on 01.12.2001
from which date time period began to run. Facts admitted need not
be proved under Section 58 of the Indian Evidence Act, 1872.
Therefore, according to Mr. Basu, the Trial Court rightly held that
the suit is time barred.
15. In Ahmadsahab Abdul Mulla (2) v. Bibijan, [(2009) 5 SCC
462], the view expressed by the Supreme Court of India was that:
"11. The inevitable conclusion is that the
expression "date fixed for the performance" is a
crystallised notion. This 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 date is fixed it means that
there is 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".
Here again, there is a definite point of time, when
the plaintiff notices the refusal. In that sense both
the parts refer to definite dates. So, there is no
question of finding out an intention from other
circumstances."
In Madina Begum's case (supra), no specific calendar date was fixed
for performance of the agreement for sale although time frame of six
month was fixed for payment of consideration money. Referring to
Ahmadsahab's case (supra) it was observed by the Supreme Court
of India that when no date for performance is fixed, the limitation of
three years would begin when the plaintiff has notice that the
defendant has refused the performance of the agreement.
16. The complaint dated 01.12.2001 itself was adduced as
evidence and marked as Ext. 5. It is alleged in the Ext. 5 that the
Respondent had been killing time on various pretexts and the
project had suffered loss. Nothing is there to indicate that the
Respondent refused to perform his part of agreement. No
evidentiary value should be attached to the oral account of Ext. 5
which itself should be looked into. Whether there was delay on the
part of the Appellants to bring action promptly against the
Respondent is not a relevant matter to be considered to decide on
the point of limitation. The Respondent rather admitted in cross-
examination, as pointed out by Mr. Karmakar, that there was no
question of cancellation of the agreement before 27.03.2003. It is
also admitted by the Respondent in cross-examination that before
27.03.2003 he had not given any letter to the Appellants. The
aforesaid letter dated 27.03.2003 is admitted in evidence and is
marked as Ext. B. Para 7 of Ext. B, namely, the letter dated
27.03.2003 contains the following statement: "I have been advised
to revoke the said Baina Patra dated 13.06.1995 with immediate
effect though the said Baina Patra has become hopelessly barred by
limitation as the time was essence of the Baina Patra." (underline
and italics provided by us) This clearly shows that the agreement
for sale dated 13.06.1995 (Ext. 1) was cancelled in terms of the
aforesaid letter dated 23.03.2003. The agreement was not
cancelled earlier, as admitted by the Respondent and manifest from
Ext. B. Material evidences produced very clearly establish that the
agreement was terminated and performance was refused on
27.03.2003 and not before hand. The agreement for sale itself
evinces that no date was fixed for performance of the contract.
Therefore, it is apt and just to conclude, following the ration of
Ahmadsahab's case and Madina Begum's case that limitation
started from the date on which refusal to perform was noticed and
limitation should run from 27.03.2003. The Trial Court, it
appears, attached unnecessary importance to the oral testimony of
the P.W. 1 being oblivious of the true purport of the basic principles
of primary and secondary evidences as well as the contents of Ext.
5. We, therefore, set aside the finding of the Trial Court that the
suit was barred by law of limitation.
17. We, accordingly, set aside the impugned judgement and
decree. Since the Trial Court dismissed the suit on the ground that
it was not maintainable, without deciding the principal issues, we
remand the suit for fresh hearing and disposal on merit. The Trial
Court shall endeavor to dispose of the suit within a period of six
months from the date of communication of this judgement, without
unnecessary delay.
18. The instant First Appeal is accordingly disposed of.
19. No order of cost.
20. Lower court record along with a copy of judgment be returned
forthwith.
21. Urgent Photostat certified copies of this judgment, if applied
for, be supplied to the parties expeditiously on compliance of usual
legal formalities.
(Sugato Majumdar, J) (Tapabrata Chakraborty, J)
