Shri Nagendra Nath Lahkar vs Mrs Bijuli Kalita
2022 Latest Caselaw 995 Gua

                                                                   Page No.# 1/7

GAHC010050942017




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : RFA/123/2017

            SHRI NAGENDRA NATH LAHKAR
            S/O LATE HARKANTA LAHKAR, R/O FATASIL AMBARI TINIALI NEAR
            MAYUR KRISHNA CINEMA HALL, P.O. GUWAHAIT 781025, DIST. KAMRUP
            M, ASSAM.



            VERSUS

            MRS BIJULI KALITA
            W/O MR. AKHIL TALUKDAR, R/O A.K. DEB ROAD, FATASIL AMBARI, NEAR
            KALI MANDIR, P.O. GUWAHATI 781025, DIST. KAMRUP M, ASSAM.



Advocate for the Petitioner   : MR.H K SARMA

Advocate for the Respondent : MR H K SARMA

Page No.# 2/7

BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER 23.03.2022

Hear Mr. B.D. Das, learned Senior Counsel appearing for the appellant as well as Mr. H.K. Sharma, learned Counsel representing the respondent.

2. This is a regular first appeal under Section 96 of the Code of Civil Procedure 1908 against the judgment and decree dated 29.07.2017 passed by the learned Civil Judge No.1, Kamrup(M), Title Suit No.26/2015.

3. The appellant is the owner of a plot of land measuring 1Katha 10 Lechas covered by dag No. 419 (old)/364(new) of K.P. patta No.482 of village- Pathashil E.V. under Mouja- Beltola, Dist.- Kamrup(Metro), Assam. On the basis of this fact, on 14.10.2014, he had entered into a contract with the respondent to sell the land at a price of Rs.18,00,000/-. Out of that, on the same day, an amount of Rs.8,50,000/- was paid to him by the respondent. The possession of the land was handed over to respondent.

4. It was agreed between the parties that the appellant will procure the sale permission from the concerned authority. In the meantime, the respondent even erected the boundary wall and also carried out earth filling by incurring an expense of about Rs.3 lacs.

5. Thereafter, an additional amount of Rs.80,000/- was paid by the respondent to the appellant in advance.

6. The appellant did not procure the same permission as agreed by the parties.

7. One day, the appellant declared that he was not interested in selling the land Page No.# 3/7

to the respondent and offered her to return the advanced money.

8. The respondent filed the suit before the court below for specific performance in the contract with the appellant alleging that the appellant intentionally did not procure the sale deed.

9. The appellant contested the case by filing a written statement. He denied that he is the owner and possessor of measuring 1Katha 10 Lechas covered by dag No. 419 (old)/364(new) of K.P. patta No.482 of village- Pathashil E.V. under Mouja- Beltola, Dist.- Kamrup(Metro), Assam. He claimed that he owns and possesses a difference plot of land measuring 1Katha 10 Lechas covered by dag No. 409 (old)/364(new) of K.P. patta No.482 of village- Pathashil E.V. under Mouja- Beltola, Dist.- Kamrup(Metro), Assam.

10. The appellant stated that after entry into the contract for sell with the respondent, he made an inquiry in the office of the Deputy Commissioner to confirm the fact that he is the owner of the plot of land measuring 1Katha 10 Lechas covered by dag No. 419 (old)/364(new) of K.P. patta No.482 of village- Pathashil E.V. under Mouja- Beltola, Dist.- Kamrup(Metro), Assam. He found that he was not the owner of that plot of land. He immediately informed to the respondent.

11. Referring to Clause 2 of the agreement dated 14.10.2014, the appellant now claims that he cannot be compelled to procure the sale permission from the concerned authority, because according to the said agreement, he was fasten with the liability to bear the expense only.

12. On the basis of the pleadings of both sides, the trial court framed the following issues-

i) Whether, there is cause of action for the suit?

ii) Whether, the suit is barred by limitation?

iii) Whether, the defendant being the owner of a plot of land measuring 1 Katha 10 Lechas covered by Dag No.419 (O) 364(N) of K.P. Patta No. 482 entered into a registered deed of agreement dated 14.10.14 with the plaintiff for sale of the Page No.# 4/7

aforesaid plot of land at a consideration of Rs.18,00,000/- and paid an advance of Rs.8,50,000/- and delivered possession of the suit land to the plaintiff as claimed in the plaint?

iv) Whether, in terms of the registered deed of agreement dated 14.10.14 the defendant is required to obtain necessary sale permission and no objection certificate from the office of the Deputy Commissioner and GMDA authority as claimed by the plaintiff?

v) Whether, the plaintiff is ready and willing to perform her part of the contract and whether defendant from his part of the contract?

vi) To what other relief/reliefs the parties are entitled under law and equity?

13. During the trial of the case, both sides examined two witnesses each. On the basis of the evidence on record, the trial court decreed the suit to the respondent.

14. I have gone through the impugned judgment. The only point for determination in this appeal is as to whether the appellant had intentionally refrained from procuring the necessary permission from the concerned authority.

15. The said point for determination is covered by the Issue No. iv. Therefore, the Issue No. iv shall be taken up first.

16. For Issue No. iv Clause 2 of the agreement dated 14.10.2014 is relevant. It reads as under-

"That the expenditure in respect of obtaining Sale Permission/No Objection Certificate from the Office of the Deputy Commissioner, Kamrup(Metro), Guwahati and/ or from the Guwahati Metropolitan Development Authority shall be borne by the First Party/Seller and the expenditure for registration of the schedule property shall be borne by the Second Party/Purchaser. Registration of the schedule property will be done after obtaining necessary permissions from the competent authorities from sale of the schedule property."

17. So it is not cleared that there was no agreement as to who would procure the sale permission from the concerned authority.

Page No.# 5/7

18. Now, let me take up the evidence of the appellant. He has stated in his evidence that he did not have any knowledge as to who had applied for sale permission on 23.12.2014. He further claimed that he did not remember if he had sworn the affidavit, on 24.12.2014, which was required to be filed with the application seeking sell permission. He never denied that the applicant seeking sell permission was submitted before the Deputy Commissioner, Kamrup(M) on 25.12.2014. He again stated that he did not remember if the Deputy Commissioner had fixed 17.04.2015 for issuing the sell permission.

19. The appellant has stated in his evidence that he employed one person named Ratul Sharma to take steps for procuring the sell permission.

20. In my considered opinion, the evidence of the appellant clearly shows that he had taken the initiatives to procure the sell permission from the concerned authority and he had intentionally retrained himself from getting the sell permission. The malefide intention is clearly visible in the evidence of the appellant.

21. When the appellant had taken all the initiatives to procure the sell permission from the Deputy Commissioner, etc. Now, the appellant cannot take the benefit of Clause 2 of the agreement. After taking initiatives for procuring sell permission from the office of the Deputy Commissioner, etc., the appellant on his owned created his own liability from which he cannot escape by taking refuse under Clause 2 of the agreement. The appellant has to procure the sell permission. This Issue is answered in favour of the respondent.

22. For deciding the Issue No. i, the statement of the appellant in the written statement is sufficient. He denied that he is the owner and possessor of measuring 1Katha 10 Lechas covered by dag No. 419 (old)/364(new) of K.P. patta No.482 of village- Pathashil E.V. under Mouja- Beltola, Dist.- Kamrup(Metro), Assam. He claimed that he owns and possesses a difference plot of land measuring 1Katha 10 Lechas covered by dag No. 409 (old)/364(new) of K.P. patta No.482 of village- Pathashil E.V. under Mouja- Beltola, Dist.- Kamrup(Metro), Assam.

23. The appellant in his evidence has admitted that he had entered into the Page No.# 6/7

contract with the respondent to sell the land covered by dag No. 419 (old)/364(new) of K.P. patta No.482(new) of village- Pathashil E.V. under Mouja- Beltola, Dist.- Kamrup(Metro), Assam. He admitted that the value of the land was agreed at Rs.18,00,000/- and an advanced amount Rs.8,50,000/- was paid to him on the date of the agreement dated 14.10.2014.

24. The appellant has stated in his evidence that he did not remember who filed the application on 25.12.2014 in the office of the Deputy Commissioner, Kamrup(M) seeking permission to sell the land. He also claimed that he did not remember as to who sworn the necessary affidavit by his putting his signature there on 24.12.2014. He further stated that he did not remember if the Deputy Commissioner had fixed 17.04.2014 for delivery of the necessary permissions.

25. Now, I shall take up the evidence of the respondent. Exhibit-2 is the Jamabandi in respect of the suit land which clearly shows that the land covered by dag No. 419 (old)/364(new) of K.P. patta No.482(new) of village- Pathashil E.V. under Mouja- Beltola, Dist.- Kamrup(Metro), Assam stands in the name of the appellant.

26. In a suit for specific performance for contract the plaintiff has to prove his readiness and willingness to perform the terms of the contract for sell.

27. The appellant endeavor to take protection under the provision of law as laid down in Section 16(c) of the Specific Relief Act, 1963. But it is clearly visible from the pleadings and the evidence that the appellant has failed to perform his part of the contract. Therefore, the cause of the action for filing the suit against the appellant is visible. The learned trial court has correctly decided that Issue in favour of the respondent. This Court agrees and decides this Issue in favour of the respondent.

28. The learned trial court has decided the Issue No. ii in favour of the respondent. The reason is that on 13.01.2015, the appellant informed the respondent about his refusal to perform his part of the contract. This Court is in agreement to it the decision of the trial court. The Issue No. ii is decided in favour of the respondent.

29. The monetary transaction between the appellant and the respondent is an admitted fact and therefore, need not be proved. Therefore, in agreement in the Page No.# 7/7

decision of the trial court, this Issue also decided in favour of the respondent.

30. The value of the land was decided at Rs.18,00,000/- out of that Rs.9,30,000/- was paid in advanced. Possession of the land was also handed over to the respondent. She erected boundary walls and also filled the land. These facts clearly prove that the respondent has performed her part of the contract. This Issue is answered in favour of the respondent.

31. For Issue No. vi, in the light of the decision arrived at in the foregoing issues, this Court is of the opinion that the respondent only deserves to a decree for specific performance of the contract dated 14.10.2014.

32. Under the aforesaid premise reasons, this Court is of the opinion that the present appeal is without any merit.

33. The appeal stands dismissed.

Send back the LCR.

JUDGE

Comparing Assistant