(S.R.) vs Sri Sanjib Mallick
2023 Latest Caselaw 3485 Cal

                               FAT 365 of 2022
                                    with
17.05.23                        CAN 1 of 2022
 Sl-10
 Ct.32                            Swapna Paul
 (S.R.)                                v.
                               Sri Sanjib Mallick

           Mr. Tapash Kumar Dey
           Ms. Saswati Ghosh Sinha              ... for the appellant.

           Mr. Satyam Mukherjee
           Mrs. Sayani Ahmed
           Mrs. Debamita Mukherjee            ... for the respondent.

The present appeal is directed against the judgment

and decree dated 22nd September, 2022 passed by the

Learned Civil Judge (Senior Division), 1st Court, Barasat

in Title Suit No.342 of 2010 whereby the suit for specific

performance of contract and permanent injunction filed at

the instance of the respondent herein was decreed and

the counter claim filed by the appellant herein was

dismissed.

With the consent of parties and as all the material

documents are on record, we dispense with all the

formalities and take up the appeal for final hearing.

Shorn of unnecessary details, the facts required to

be adumbrated for the purpose of effective adjudication of

the appeal are that one Sanjib Mallick (in short, Sanjib)

filed a suit for specific performance of contract and

permanent injunction against the defendant/appellant

herein, inter alia, contending therein that the parties

thereto entered into an agreement of sale, which was

written in Bengali, on 24th September, 2009 and it was

stipulated therein that the suit property will be sold out to

Sanjib at a consideration of Rs.2,20,000/- and on the

date of execution of the said agreement for sale

Rs.1,60,000/- was paid to the defendant/appellant (in

short, Swapna) and then on 10th October, 2009, a further

sum of Rs.50,000/- was paid as a part payment of

consideration money to Swapna and it was agreed by and

between the parties that the Sanjib would pay the rest

amount of consideration money being Rs.10,000/- within

six months from the date of execution of that agreement

and on receipt of such balance amount of consideration

money, Swapna shall execute the deed of sale in favour of

the Sanjib.

It was recited in the plaint that in spite of being

requested on numerous occasions Swapna did not

execute any deed of sale and Sanjib through his learned

advocate issued a legal notice on 27th March, 2010

requesting her to execute and register the deed of sale

upon receipt of balance consideration money within 15

days from the date of receipt of such notice.

Coincidently, Swapna also through her learned

advocate issued a legal notice dated 26.03.2010 to Sanjib

claiming that the Sanjib was required to pay the balance

amount of consideration money and to get the sale deed

registered within one month of the agreement for sale and

one month had already elapsed and accordingly, the

agreement for sale had lapsed by passage of time and

Swapna expressed her desire to refund the money being

Rs.2,10,000/- and Swapna requested the Sanjib to return

the original deed which was lying in the custody of Sanjib.

In such consequence of facts, Sanjib was constrained to

institute the suit.

Swapna defended the suit by filing written

statement. Swapna also filed one counter-claim seeking

declaration that agreement forming the subject matter of

the suit is loan agreement one. Crux of the defence taken

in written statement and the case made out in

counterclaim are that Swapna's son remained under

prolong treatment on account of his injury on spinal cord

and hence, she was in dire need of money and on being

approached, Sanjib agreed to lend her a sum of Rs. 1.6

lakh against 3% interest per month for 12 months and as

a security against such loan, she entered into such

agreement and till that date, Swapna received Rs. 1.17

lakh only from Sanjib. She claimed that at time of

execution of the agreement, value of suit property was

more than Rs. 6 lakhs. She asserted therein that subject

agreement was nothing but a loan agreement.

In the written statement filed against the counter-

claim, Sanjib reiterated the statements made in the plaint

and emphatically denied that subject agreement was a

loan agreement.

Upon pleadings of the respective parties, the

learned Court below framed the following issues :

'1. Whether the suit maintainable in its present form

and law?

2. Whether the suit is barred by principle of estoppal,

waiver, and acquiescence?

3. Whether the suit is barred by limitation?

4. Whether the suit is bad for defect of parties or not?

5. Whether the agreement dated 14.9.2009 is valid in

law?

6. Whether the plaintiff is entitled to get any

relief/reliefs as per prayer of the plaint?

7. Whether the defendant is entitled to get any

relief/reliefs as per prayer of counter claim?'

In corroboration of the facts depicted in the plaint,

the plaintiff adduced his oral evidence and evidence of one

Sudipta Das and the plaintiff also placed reliance upon

certain documents viz. agreement dated 24.2.2009, letter

dated 27.3.2010 along with postal receipts and A/D card

thereof, letter dated 26.3.2010 along with envelope and

Original deed of sale being no. 2450 of 2001 which were

admitted in evidence as Exhibits 1 - 4 whereas to lend

support to the facts expounded in the written statement,

the defendant adduced her oral evidence but she did not

produce any document.

After contested hearing, the learned Court below

decreed the suit and dismissed the counter claim holding

that the subject instrument is an agreement for sale and

not a loan agreement. Aggrieved thereby, the

defendant/appellant has challenged the judgment and

decree in the present appeal.

Mr. Dey, learned advocate representing the

appellant submits that in the schedule appended to the

agreement, only the word 'land' has been mentioned but

fact remains that there was a Pucca structure standing on

the land and such fact was admitted by PW-1 in his

cross-examination by saying that the defendant has one

storied Pucca house in the suit property.

According to Mr. Dey, the learned Court below by

passing an order impounded the agreement before trial

which speaks about the predetermined mind of the Court.

He submits that without taking decision as to the nature

of the document, the learned Court below has impounded

the agreement. He, by placing reliance upon a judgment

delivered in case of M/s. Z. Engineers Construction Pvt.

Ltd. & Anr. v. Bipin Bihari Behera & Ors., reported in 2021

(1) ICC 491 (S.C.), submitted that where evidence is

required to determine the nature of document, it is

reasonable to defer the admissibility of a document for

insufficient stamp duty at the time of final decision of the

suit. He, drawing our attention to the evidence of the

defendant/appellant, submits that the

defendant/appellant in unequivocal and clear terms has

stated that she did not execute any agreement for sale

and she only executed one agreement for loan. The

learned Court below has fell in error in not taking into

account that portion of the evidence of the defendant. He

submits that no issue has been framed by the learned

Court below on the question as to whether the subject

document is a loan agreement or an agreement for sale in

its nature and he, drawing our attention to the provisions

of Section 20 of the Specific Relief Act (in short, the said

Act), submits that the market value of the property at the

relevant point of time of execution of alleged agreement for

sale would be at least Rs.6,00,000/- but the said alleged

agreement for sale was entered into for an amount of

Rs.2,20,000/-. He submits that the Court should have

exercised its discretion conferred upon it under Section

20 of the said Act and should have given direction upon

the defendant to return the money taken as a loan. He

further submits that the learned Court has also not taken

into account the fact that the appellant was suffering

extreme financial stringency as her son was severely sick.

To strengthen such contention, reliance has been placed

upon a judgement of the Hon'ble Supreme Court in

Jayakantham & Others Vs. Abaykumar, reported in 2017

(2) ICC 1 (SC) 37.

He submits that the learned advocate while issuing

letter to the plaintiff was convinced with the name

'Binanama' incorporated at the cause title of the

agreement and under a wrong impression wrote a letter to

the plaintiff and the learned Court should not have placed

its reliance upon such letter. He submits that in the

interest of justice it would be proper to direct the

defendant to return the money taken from the plaintiff

and to pass order accordingly.

In response, Mr. Mukherjee, learned advocate

appearing for respondent, drawing our attention to a

portion of the evidence of the defendant submits that the

defendant has another place of abode. It is not that the

defendant will be rendered homeless if decree for specific

performance is passed and given effect to. He further

submits that the learned Court below impounded the

agreement for sale when trial has already commenced and

the issues were framed. He submits that the plaintiff

tendered his affidavit-in-chief as per Order 18 Rule 4 of

the Code and on the same date the plaintiff filed an

application seeking a direction for impounding the

agreement for sale and such prayer was allowed and

aggrieved thereby, the defendant filed one civil revision,

being CO No.2490 of 2016 which was disposed of by an

order dated 26th April, 2022 holding that the order passed

by the learned Court below impounding the agreement

for sale does not call for interference. He submits that the

learned Court below framed an issue whether the

instrument was valid in the eye of law without describing

the document by any name so that the nature of the

document could be decided at the time of trial. He

submits that from the evidence as well as the letter given

on behalf of the defendant it would be graphically clear

that the nature of document was nothing but an

agreement for sale. He submits that the learned Court

below has decreed the suit by passing a reasoned order

leaving no scope before this Court to interfere with the

same.

Rules governing the interpretation and construction

of a document mandate that the true nature of the

transaction has to be ascertained from the covenant or

from the language used in the covenant and not merely

from what the parties choose to call it. Whatever be its

nomenclature, nature of the document and the intention

of the parties to the agreement need to be gathered from

the language and/or words used in the document and/or

in the agreement. Where the words used in the agreement

are clear and unambiguous, the Court shall try to give a

plain and ordinary meaning to words and there is no

scope for drawing any hypothetical consideration and

supposed intention of the parties.

Construction of the language and the words used in

the agreement should not be against the language and

tenor of the document. When the parties, capable of

understanding their rights fully, expressly agreed that the

agreement should be construed one way, no inference

should be drawn so as to construe it in different way.

A close scrutiny of the document, marked as Exhibit

- 1 leaves no iota of doubt that the same was an

agreement for sale and not a loan agreement. Agreement

was drafted in Bengali. Swapna herself admitted in her

evidence that she can read and understand Bengali

language. In the letter dated 26.3.2010, she specifically

claimed that the agreement for sale lapsed by passage of

time but she has taken a contrary stand in her written

statement. In such sequence of facts, claim of Swapna

that subject agreement is loan agreement and not an

agreement for sale is negated.

Issues are framed by the learned Trial Court as per

provisions of Order XIV Rule 1 of the Code to determine

the scope of the trial and although the duty of framing

issues on the basis of the pleadings of the respective

parties rests on the Court but the responsibility for

framing the issues should be shared by the pleaders

appearing for either parties.

If no issue is framed on the facts but the parties

adduce evidence on the facts and discuss it before the

Court and advance arguments on such facts and the

Court renders decision on fact, such decision will not be

set aside in appeal merely on the ground that no issue

was framed. The reason is that a mere omission to frame

an issue is not fatal to the trial of the suit unless it has

affected a disposal on the merits.

In the case at hand, the parties adduced evidence

on the issue as to whether the subject instrument was

agreement for sale or loan agreement and the parties

advanced their respective arguments on this issue and

Court also have rendered decision on the issue and

arrived at a decision that the subject instrument is a loan

agreement. Hence, it would not be proper to say that the

omission to frame issue to the effect as to whether subject

instrument is an agreement for sale or a loan agreement

vitiated the trial.

The orders by which the learned Court below

impounded the subject instrument were assailed by

Swapna in a revision being C.O. 2490 of 2016. Revision

application was dismissed and orders impugned therein

were affirmed. Order passed in C.O. 2490 of 2016 has not

been challenged in the higher forum and consequently,

order passed in the revisional application has attained its

finality. Appellant cannot be allowed to re-agitate the

same issue raised in that revisional application.

Section 8 of Transfer of Property Act, 1882 which

deals with 'operation of transfer' declares that a transfer of

property passes forthwith to the transferee all the interest

which the transferor is then capable of passing in the

property, and in the incidents thereof and such incidents

include, where the property is land, the easements

annexed thereto, the rents and profits thereof accruing

after the transfer, and all things attached to the earth.

The expression 'attached to the earth' has been

defined in Section 3 of that Act and walls or buildings

which are imbedded in the earth shall be deemed to be

the things attached to the earth. Structure unless it is

pulled down are deemed to be the part of the property and

no private person has been empowered to transfer the

land or create any equitable mortgage in the land keeping

ownership of structure standing thereon unaffected

thereby with him. So, submission of Mr. Dey that

equitable mortgage was created only in land not in the

structure cannot have legs to stand on. It is to be noted

that in the letter dated 26.3.2010, the word 'property' was

used.

It is trite to say that a decision is binding not because

of its conclusions but in regard to its ratio and principles

laid down therein. A case is an authority only for what it

actually decides and not for what may logically follow

from it. Every judgment must be read as applicable to the

particular facts proved or assumed to be proved. Factual

matrix of the case at hand does not fit in situations of the

decisions on which reliance has been placed by the

appellants and hence, judgments relied upon by the

appellant are distinguishable on facts.

In view of the discussion made hereinabove, we have

no hesitation to hold that the learned Court below has

rightly determined the nature of the instrument as an

agreement for sale and not a loan agreement and the

learned Court below has rightly decreed the suit and

dismissed the counter-claim and the appeal being devoid

of merit, is liable to be dismissed and judgment and

decree impugned cannot be annihilated.

In the result, the appeal and the connected

application are dismissed. Judgment and decree

impugned herein are affirmed. There shall, however, be no

order as to costs.

Let a decree be drawn up, accordingly.

Let a copy of this judgment be sent down to the

learned court below forthwith.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties, upon compliance of

all requisite formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)