Calcutta High Court (Appellete Side)
Sri Toirthendu Das vs Sri Kanailal Purkait on 5 May, 2022
Dl. May 5, F.A.T. 435 of 2019
16. 2022
Sri Toirthendu Das
Vs.
Sri Kanailal Purkait
Mr. Sounak Bhattacharyya,
Mr. Sounak Mondal,
...for the appellant.
Re: CAN 1 of 2022 (injunction)
filed on April 28, 2022.
The present appeal has arisen out of a judgment and
decree passed in a suit for specific performance of an agreement for
sale. The plaintiff/appellant claims to have paid a sum of Rs. 30 lakh
out of a total consideration of Rs. 45 lakh - the last instalment was
paid on November 14 2009. The plaintiff alleged that although the
plaintiff was ready and willing to pay the balance consideration
amount upon execution of the deed of conveyance, the
defendant/respondent refused to accept such payment and declined
to execute the sale agreement.
The learned Trial Judge dismissed the suit on the ground
that there was no averment in the plaint as mandatorily required
under Section 16(C) of the Specific Relief Act, 1963 and in the
absence of such pleading, the plaintiff could not succeed. The Trial
Court dismissed the suit also on the ground that the plaintiff was
unable to produce any document to prove that the plaintiff had ever
funds to pay the balance consideration money.
We have heard Mr. Sounak Bhattacharyya, learned
advocate representing the appellant. In view of the fact that out of
total consideration of Rs. 45 lakh, Rs. 30 lakh was paid and that the
recording of the learned Trial Judge in the impugned judgment that
the defendant witness no. 1 had agreed to receive the balance
consideration amount along with interest from the plaintiff, the
learned Trial Judge could not have dismissed the suit. We are of the
view that the appellant has been able to make out a prima facie case.
The appellant is, therefore, directed to serve a copy of
this application on the respondent by registered speed post with
acknowledgment due in course of this week along with a notice
indicating that this application along with the appeal shall appear in
the list for hearing on May 18, 2022 and to file an affidavit of
service to that effect at the next hearing.
There shall be an unconditional order of injunction for a
period of one week from date restraining the defendant/respondent
from transferring, alienating, encumbering and/or creating any third
party interest in respect of the suit property.
The plaintiff/appellant is directed to deposit a sum of Rs.
15 lakh within one week from date with the learned Registrar
General of this court.
If such deposit is made within the time stipulated, as
above, the interim order of injunction shall continue for a further
period of six weeks or until further orders, whichever is earlier. In
default, however, the interim order of injunction shall stand
automatically vacated without any further reference to this court.
If the entire amount, as aforesaid, is deposited, the
learned Registrar General shall invest the same in a short term
renewable interest bearing fixed deposit scheme in any nationalised
bank of his choice subject to any further order that may be passed by
this court.
We make it clear that in the event the respondent is not
represented on the adjourned date, we shall dispose of the appeal
and the application in the absence of the respondent.
( Soumen Sen, J. )
( Sugato Majumdar, J. )
dns
