Calcutta High Court (Appellete Side)
Smt. Aparupa Sahana vs Smt. Nirupa Sahana on 4 March, 2022
Dl. March 4, F.A.T. 1 of 2022
12. 2022
Smt. Aparupa Sahana
Vs.
Smt. Nirupa Sahana
Re: CAN 1 of 2022 (injunction)
filed on January 19, 2022.
Mr. Animesh Paul,
...for the appellant.
Mr. Partha Pratim Roy,
Mr. Debasis Sur,
Mr. Hare Krishna Halder,
Mr. Himadri Sekhar Paul,
Ms. Anindita Chatterjee,
...for the respondent.
Although the matter is appearing under the heading
"application", by consent of the parties, we take up the appeal itself
for hearing upon dispensation of all formalities.
It appears that the appellant has paid Rs. 16 lakh to the
vendor of the respondent in respect of 'B' scheduled property. The
mode of payment in respect of the 'B' scheduled property is
mentioned in schedule 'C' to the plaint. Although the prayer for
specific performance of contract has not been clearly stated in the
plaint, but it can be made out from prayer (d) to the plaint that the
suit is also for specific performance of contract, as the said prayer
clearly states that a direction may be passed on the defendant to
execute and register the respective deed of conveyance in respect of
her half share in the 'A' scheduled property. The said prayer is made
alternatively as the primary prayer, as it appears, relates to partition.
Be that as it may, it prima facie shows that Rs. 16 lakh
was paid to the vendor of the respondent by way of several cheques
on February 6, 2012 and by way of cash on March 31, 2012.
The husband of the respondent is present in court and
tries to give a wrong impression to this court by wrongly instructing
the learned advocate appearing on behalf of the respondent.
In order to ascertain the truth, we call for the deed of
sale by which the respondent, namely, Smt. Nirupa Sahana,
purchased half share of the 'A' scheduled property. From the said
document, it is clear that the said property was acquired out of the
payment mentioned in schedule 'C' to the plaint. We find no
justification on the part of the defendant/respondent in not executing
the deed of sale in favour of the plaintiff/appellant. The plaintiff was
able to establish her readiness and willingness and had already paid
a sum of Rs. 16 lakh towards part consideration for acquiring half
share of her sister in respect of the 'B' scheduled property. We have
verified that the said amount was utilised for the purpose of
acquiring the 'B' scheduled property. The deed of sale dated April
10, 2012 clearly shows that the memo of consideration mentioned in
schedule 'C' to the plaint matches with the memo of consideration
mentioned in the deed of sale dated April 10, 2012. The
defendant/respondent lacks transparency and truthfulness. There is
practically no defence to the entitlement of the plaintiff in respect of
the 'A' scheduled property. The plaintiff having established his
readiness and willingness to perform her obligation under the
contract and is being able to establish the same throughout the trial,
we are of the view that the trial court on a hypertechnical ground
denied the relief prayed for.
The impugned judgment and decree dated October 7,
2021 is, therefore, set aside.
The plaintiff/appellant shall pay a sum of Rs. 9 lakh by
way of balance consideration in favour of the defendant/respondent
within a period of fortnight from date and the defendant/respondent
shall execute the deed of conveyance in favour of plaintiff/appellant
within two weeks thereafter.
There shall be an order of permanent injunction
restraining the defendant/respondent from alienating, encumbering
and/or transferring the 'A' scheduled property to any third party till
the deed of conveyance is executed in favour of the appellant.
The appeal, thus, stands allowed.
In view of disposal of the appeal, the application for
injunction is also disposed of.
There will be no order as to costs.
( Soumen Sen, J. )
dns
( Ajoy Kumar Mukherjee, J. )
