Calcutta High Court (Appellete Side)
Sg Ct. 8 vs Smt. Durga Rani Seal on 18 August, 2022
FA 201 of 2012
Item-5. CAN 3 of 2022
18-08-2022
Sk. Md. Yasin
sg Ct. 8 Versus
Smt. Durga Rani Seal
Mr. Asit Kumar Choudhury, Adv.
Mr. Ishit Raut, Adv.
...for the appellant
The plaintiff has filed an application for substituted service.
We do not feel it necessary to direct substituted service. We
propose to take the appeal for hearing.
The appeal is arising out of a judgment and decree dated 6 th
January, 2012 passed by the learned Judge, 11 th Bench, City Civil
Court at Calcutta in Title Suit No. 199 of 2011.
The plaintiff has filed a suit for specific performance of an
agreement for sale dated 29th December, 2008. The plaintiff
alleged that the plaintiff had agreed to a sum of Rs.9,00,000/- and
the defendant has agreed to receive the said amount as final
consideration for sale of the said property. The terms and
conditions were reduced in writing and are reflected in the
agreement for sale dated 29th December, 2008.
In terms of the said agreement, the plaintiff claimed to have
paid an earnest money of Rs.3,00,000/- in presence of witness on
the date of execution of the said agreement. Subsequently, the
defendant failed to execute the said agreement. As a result
whereof, the plaintiff filed a suit for specific performance of the
said agreement. It appears from the record that the agreement
between the parties is not in dispute. However, it appears that the
agreement was required to be performed within a period of two
years from the date of execution. Admittedly, the plaintiff did not
pay the balance sum of Rs.6,00,000/- towards the balance
consideration within the period of two years. In view thereof, the
defendant denied the execution of the said sale agreement.
The learned Trial Judge has taking into consideration that
the plaintiff has also prayed in the suit alternatively for a decree
for refund of the earnest money along with interest, decreed the
suit to the aforesaid extent. The prayer for execution of the
agreement for sale was denied having regard to the fact that in
between the value of the property has increased considerably and
it would be inequitable at this stage to grant a decree in favour of
the plaintiff for specific performance for the agreement for sale.
Admittedly, the suit was filed on the verge of limitation. the
agreement was of December, 2008 and the suit was filed
approximately at the fag end of the year 2011.
The prayer for specific performance may be considered if the
plaintiff has proved the agreement and readiness and willingness to
perform the essential terms of the agreement. We used the word
'may' as the relief is discretionary and all factors including the
belated filing of the suit on the verge of limitation and rise in the
price of the property would be the other relevant considerations in
exercising discretion in favour of the plaintiff. [See: U.N.
Krishnamurthy (since deceased) through LRS v. A.M.
Krishnamurthy reported in 2022 SCC OnLine SC 840.]
The Hon'ble Supreme Court denied the specific
performance of an agreement for sale on the consideration that the
readiness and willingness of the plaintiff is not reflected by reason
of such delay in approaching the Court in a suit for specific
performance of agreement for sale. Although, the suit may have
been filed within the period of limitation but this is a factor which
would reflect upon the conduct of the plaintiff in proceeding with
the suit for specific performance of the agreement for sale.
Moreover, it is trite law that the prayer is discriminatory.
The consideration that weighed the learned Trial Judge in refusing
to allow the prayer for execution of the deed of conveyance
cannot be said to be erroneous or arbitrary or perverse. The suit
was decreed with regard to refund of the consideration amount
along with interest.
In view thereof, we do not find any reason to interfere with
the decree passed by the learned Trial Judge.
The appeal stands dismissed.
Since there is no need of substituted service, the application
being CAN 3 of 2022 also stands dismissed.
(Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)
