Page No.# 1/13 vs Ajit Chandra Bora
2025 Latest Caselaw 4458 Gua

Gauhati High Court

Page No.# 1/13 vs Ajit Chandra Bora on 25 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                              Page No.# 1/13

GAHC010219812012




                                                         2013:GAU-AS:18904

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

                          Case No. : RSA/175/2012

         ON THE DEATH OF BIRENDRA KUMAR SAIKIA, HIS LEGAL HEIRS
         NAMELY-

         2: MRS PRANATI SAIKIA
         W/O- LATE BIRENDRA KUMAR SAIKIA
          R/O- KB ROAD
          NEAR LIC
          JORHAT- 785001
         ASSAM

         3: MRS JUBEE NHAZARIKA
          D/O LATE BIENDRA KUMAR SAIKIA
         W/O LATE DAVAJYOTI HAZARIKA
          B 1104
          OBEROI WOODS
          GOREGAON EAST
          MUMBAI-400063
          MAHARASHTRA

         4: MRS JIINI DOGRA

          D/O LATE BIRENDRA KUMAR SAIKIA
          E/O MR RAJESH DOGRA
          17 PERFECTION AVENEUE
          STANHOPE GARDENS
          NSW2768
          SYDNEY
          AUSTRALIA.

         5: MRS RADHA SENSOWA

          D/O LATE BIRENDRA KUMAR SAIKIA
          W/O LATE K J SENSOWA
          CHANDAN NAGAR
                                                                         Page No.# 2/13

           BYE LANE 1
           CLUB ROAD
           JORHAT-785001
           ASSA

          VERSUS

          AJIT CHANDRA BORA
          S/O LATE MILARAM BORA, R/O NAOSOLIA GAON, MOUZA-CHARAIBAHI,
          P.O. R.R.L., DIST. JORHAT, ASSAM.



              For the Appellant(s)          : Mr. A. Dhar, Advocate

              For the Respondent(s)        : Mr. C. Goswami, Advocate


                  Date of Hearing          : 25.03.2025

                  Date of Judgment         : 25.03.2025




                                 BEFORE
                  HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                           JUDGMENT AND ORDER (ORAL)

Heard Mr. A. Dhar, the learned counsel appearing on behalf of the appellants and Mr. C. Goswami, the learned counsel appearing on behalf of the respondent.

2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short 'the Code') challenging the judgment and decree dated 19.05.2012 passed by the learned Civil Judge and Assistant District Judge, Jorhat (hereinafter referred to as 'the learned First Appellate Court') in Title Appeal No.7/2011 whereby the judgment and decree dated Page No.# 3/13

14.02.2011 passed by the learned Munsiff No.2, Jorhat (hereinafter referred to as 'the learned Trial Court') in Title Suit No.11/2008 was reversed.

3. It is seen from the records that vide an order dated 04.12.2012, the Coordinate Bench of this Court had admitted the instant appeal by formulating three substantial questions of law. The said three substantial questions of law are reproduced herein under:

"1. Whether the decree passed in a suit for specific performance of an agreement could be enforced which involves injury to the property of a third party?

2. Whether demanding refund and acceptance of advance money of an agreement vitiate "willingness" of the party to perform the obligation of the promise?

3. Whether an agreement is dissolved by the doctrine of frustration when the entire performance of the agreement becomes substantially impossible?"

4. For the purpose of deciding as to whether the three substantial questions of law which are formulated by the Coordinate Bench of this Court vide the order dated 04.12.2012 are involved in the present appeal, this Court takes note of the facts which led to the filing of the instant appeal.

5. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the learned Trial Court.

6. An agreement dated 14.12.2006 admittedly was entered into between the plaintiff and the defendant for sale of a plot of land which was specifically described in Schedule-A to the plaint at a consideration of Page No.# 4/13

Rs.50,000/-. The case of the plaintiff is that the plaintiff had paid an amount of Rs.20,000/- on the date of execution of the deed of agreement for sale and the remaining amount of Rs.30,000/- was to be paid at the time of execution of the registered deed of sale. It is the specific case of the plaintiff that the plaintiff had requested the defendant to execute the deed of sale and receive the remaining amount of Rs.30,000/- but the defendant did not take any steps in that regard. As such, a legal notice was also issued 07.09.2007 asking the defendant to execute the deed of sale within a period of 30 days from the date of receipt of the said notice. However, the defendant did not take any steps. It is under such circumstances, the plaintiff instituted the suit being Title Suit No. 79/2007 before the Court of the Munsiff No.1 at Jorhat.

7. In the said suit, the plaintiff sought for a decree for specific performance of the agreement dated 14.12.2006 thereby directing the defendant to execute and register the deed of sale in favour of the plaintiff in respect to the Schedule-A land fixing a date for depositing the stamp duty, registration fee and the balance consideration of Rs.30,000/- by the plaintiff and failing which the sale deed be executed and registered by the Court in accordance with the provisions of law; a decree for delivery of khas possession of Schedule-A land; grant of temporary and permanent injunction.

8. Pursuant to the issuance of summons, the defendant filed the written statement wherein various preliminary objections were taken as regards the maintainability of the suit. It was the case of the defendant that though he had executed the agreement for sale and received the advance consideration Page No.# 5/13

of Rs.20,000/- but taking into consideration that there was a suit pending for which the sale deed could not have been executed, the plaintiff had approached the defendant for return of the advance amount. Accordingly, the defendant returned the amount of Rs.10,000/- by a cheque bearing No.SB/000055178/407 dated 14.03.2007 drawn on the bank account of the defendant bearing Account No. 10638597053 with the State Bank of India, AT Road, Jorhat. The defendant further stated that the remaining amount of Rs.10,000/- was returned to the plaintiff by cash in presence of his wife.

9. Various pleas were taken in the said written statement but the important aspect which has a relevance to the substantial questions of law which have been formulated is that the defendant had returned the amount of Rs.20,000/- back to the plaintiff and the agreement stood cancelled accordingly. On the basis of the pleadings, the learned Trial Court framed as many as 4 (four) issues which are reproduced herein under:

"(i) Whether there is any agreement for sale between the Plaintiff and the Defendant No.1 in respect of the suit land?

(ii) Whether the Plaintiff himself cancelled the agreement for sale by receiving back the advance money from the Defendant No.1?

(iii) Whether the Plaintiff is entitled for specific performance of the contract?

(iv) To what relief or reliefs, if any the parties are entitled?"

10. It is further relevant to take note of that during the pendency of the suit, an additional issue was also framed which reads as under:

"Whether the agreement dated 14.12.2006 is a valid one?"

Page No.# 6/13

11. On behalf of the plaintiff, three witnesses were examined and four documents were exhibited. On behalf of the defendant, two witnesses were examined and six documents were exhibited.

12. It is very pertinent at this stage to observe that the said cheque referred to in the pleadings of the defendant was called for by the learned Trial Court during the pendency of the suit and the learned Trial Court in exercise of its powers under Section 73 of the Indian Evidence Act, 1872, compared the signature appearing on the reverse of the said cheque with the signature of the plaintiff and opined that the signature on the reverse of the said cheque was the signature of the plaintiff. This aspect of the matter was never challenged before any Court.

13. It is further seen that the learned Trial Court vide the judgment and decree dated 14.02.2011 dismissed the suit. In dismissing the suit, the learned Trial Court decided the Issue No.(i) holding that there was an agreement for sale between the plaintiff and the defendant No.1 in respect to the suit land.

14. In respect to the Issue No.(ii), the learned Trial Court opined that there was no cancellation of the agreement for sale by the plaintiff by receiving back the advance money from the defendant No.1. It is however very pertinent to observe that the learned Trial Court while deciding the said issue categorically came to a finding that the plaintiff had received back the amount of Rs.10,000/- from the defendant. The learned Trial Court however observed that there is no material to show that the plaintiff had received the said amount for any other purpose beyond the transaction of the agreement dated 14.12.2006 and the defendant had successfully discharged his burden Page No.# 7/13

of proving that the plaintiff received back the Rs.10,000/- out of the advance amount paid to the defendant. However, on the ground that there was no documentary evidence to show that the agreement dated 14.12.2006 was not cancelled, the receiving back of the advance amount was held by the learned Trial Court would not amount to cancellation of an agreement for sale.

15. In respect to the Issue No.(iii), the learned Trial Court observed that the plaintiff was not entitled for specific performance of the contract on the ground that the plaintiff had received back the amount of Rs.10,000/- out of the advance amount paid to the defendant and from the conduct thereof, it can be discerned that the plaintiff was not ready and willing to perform his part of the contract.

16. In respect to the Issue No.(iv), the learned Trial Court observed that the plaintiff was not entitled to any relief. The learned Trial Court specifically did not decide the Issue No.(v) but in view of the determination made in Issue No.(i), it can be discerned that the said Issue No.(v) was decided in favour of the plaintiff.

17. The plaintiff being aggrieved preferred an appeal being Title Appeal No.7/2011 before the learned First Appellate Court. The learned First Appellate Court allowed the appeal vide the judgment and decree dated 19.05.2012. The learned First Appellate Court while deciding the Issue No.

(ii) also came to a finding of fact that the plaintiff had taken the amount of Rs.10,000/- back from the defendant but on the ground that there was no bilateral agreement specifying the receipt of the amount for cancellation of the agreement, the learned First Appellate Court held that on that basis the Page No.# 8/13

agreement cannot be said to have been cancelled. In respect to the Issue No.(iii), which is of vital importance, taking into consideration that the learned Trial Court had decided against the plaintiff, the learned First Appellate Court came to a finding that the plaintiff not only averred in his plaint that he was ready and willing to perform his part of the contract to get the sale deed executed in terms of the agreement dated 14.12.2006, but also proved through PW-2 and Exhibit-4 that the plaintiff repeatedly approached the defendant for enforcement of the contract to execute the sale deed offering his readiness and willingness to perform the part of the agreement. The learned First Appellate Court also observed that the agreement dated 14.12.2006 was still in existence and accordingly enforceable and on that ground differed with the decision of the learned Trial Court and held that the plaintiff was entitled for specific performance of the agreement. The Issue No.(iv) accordingly was decided in view of the decision rendered in Issue No.(iii) thereby granting the reliefs as sought for by the plaintiff in the suit. Being aggrieved, the present appeal was filed.

18. In the backdrop of the above, let this Court now take note of the three substantial questions of law which have been formulated by the learned Coordinate Bench of this Court vide the order dated 04.12.2012.

19. This Court has heard Mr. A. Dhar, the learned counsel appearing on behalf of the Appellant who submitted that taking into account the evidence on record wherein the defendant/appellant herein have duly admitted that the land in Schedule-A land is specifically the land belonging to the defendant, the substantial question of law formulated at Serial No.1 cannot be said to be involved in the instant appeal.

Page No.# 9/13

20. This Court has also taken note of the evidence of the defendant who was the DW-1 who had also categorically stated that the Schedule-A land was the land which fell into the share of the defendant and his brother had no rights over the Schedule-A land. Considering the above, this Court therefore is of the opinion that the first substantial question is not involved in the instant appeal.

21. In the backdrop of the above, let this court now take up the substantial question of law at Serial No.2 as to whether demanding refund and acceptance of advance money of the agreement vitiate willingness of the party to perform the obligation of the promise. During the course of the argument, the learned counsel appearing on behalf of the appellant submitted that the defendant have refunded the amount of Rs.10,000/- is a finding of fact arrived at by the learned Trial Court as well as by the learned First Appellate Court. He therefore submitted that the learned First Appellate Court erred in law in deciding on the issue of enforceability of the agreement dated 14.12.2006 in the touchstone of Section 16(c) of the Specific Relief Act, 1963,

22. Mr. A. Dhar, the learned counsel further submitted that the plaintiff herein neither pleaded nor adduced any evidence to the effect as to why the amount of Rs.10,000/- was received back by him. The evidence of the defendant, however, was clear to that effect that the amount of Rs.20,000/- out of which Rs.10,000/- was paid by cheque was returned to the plaintiff on the ground that the plaintiff wanted cancellation of the deed of agreement for sale. The evidence-in-chief, as per the learned counsel appearing on behalf of the appellant, could not be dislodged during the cross-examination Page No.# 10/13

of the defendant.

23. Per contra, Mr. C. Goswami, the learned counsel appearing on behalf of the plaintiff submitted that the burden was upon the defendant to prove that the said amount of Rs.10,000/- was returned on account of cancellation of the deed of agreement which both the Courts below while deciding the Issue No.(ii) came to a categorical opinion that there was no proof that the plaintiff wanted the cancellation of the deed of agreement for sale.

24. Upon hearing the learned counsel appearing on behalf of the parties on this substantial question of law so formulated, the issue which arises before this Court is as to whether the plaintiff had readiness and willingness to perform his part of the contract. From the finding of fact arrived by both the Courts below, it is clear that the amount of Rs.10,000/- was received back by the plaintiff from the defendant. In spite of that, the plaintiff continued to pursue his stand that the plaintiff paid Rs.20,000/- as advance amount and there is no explanation why the plaintiff received back Rs.10,000/-. There is also no explanation by the plaintiff as to under what other circumstances, the plaintiff received Rs.10,000/-. On the other hand, the defendant by way of his evidence had proved that an amount of Rs.10,000/- was returned back to the plaintiff which was the finding of fact arrived at by both the Courts below. Further to that, it is the consistent stand of the defendant in the written statement as well as the examination- in-chief which was not dislodged that the defendant returned the amount of Rs.20,000/- back to the plaintiff as the plaintiff did not want to pursue with the Agreement for sale. It is a General Rule that in Courts of law, only those facts can be taken to exist which are proved.

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25. In view of such finding of fact, it is the opinion of this Court that in absence of any pleading and evidence by the plaintiff why he received the said amount of Rs.10,000/-, the only logical conclusion that one would reach is that the plaintiff received the amount of Rs.10,000/- towards the cancellation of the agreement. Under such circumstances, in the opinion of this Court, the learned Trial Court was justified in arriving at the conclusion in respect to Issue No.(iii) thereby opining that there was no readiness and willingness on the part of the plaintiff to seek specific performance of the agreement for sale.

26. It is also to be noticed that in the suit the plaintiff had categorically stated that he is ready and willing to pay the remaining amount of Rs.30,000/-. In the evidence, the plaintiff continued to maintain his stand that the plaintiff is ready and willing to part with Rs.30,000/-. Even during the First Appellate stage, there is no attempt to adduce additional evidence that the plaintiff is willing to part with the further amount of Rs.10,000/- which was proved that the plaintiff received it.

27. Considering the above, it is therefore the opinion of this Court that the second substantial question of law so formulated is involved in the instant appeal.

28. Coming to the third substantial question of law which have been formulated as to whether the agreement is dissolved by the doctrine of frustration when the entire performance of the agreement becomes substantially impossible. In the opinion of this Court, the substantial question of law so framed cannot be said to be involved in the instant appeal. The reason being that the doctrine of frustration is neither pleaded nor there is Page No.# 12/13

any evidence adduced. Additionally, it does not form a part of finding of facts by the learned Courts below. In this regard, this Court finds it relevant to take note of the judgment of the Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179 and paragraph

No.14 of the said judgment being relevant is reproduced herein under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

29. In view of the above analysis, it would therefore be seen that the second substantial question of law is involved in the instant appeal and as such the impugned judgment and decree passed by the learned First Appellate Court dated 19.05.2012 in Title Appeal No.7/2011 is set aside and this Court restores the judgment and decree passed by the learned Trial Page No.# 13/13

Court dated 14.02.2011 in Title Suit No.11/2008.

30. Accordingly, the appeal stands allowed.

31. The Registry is directed to forthwith return the LCR to the learned Court below.

JUDGE

Comparing Assistant