Page No.# 1/14 vs Alaka Dutta B
2025 Latest Caselaw 8453 Gua

Gauhati High Court

Page No.# 1/14 vs Alaka Dutta B on 11 November, 2025

                                                                 Page No.# 1/14

GAHC010137162024




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

                           Case No. : RFA/71/2024

         MADHURI GOSWAMI SARMA AND 3 ORS
         W/O JITU SARMA, RESIDENT OF HOUSE NO. 7, RUPALI PATH, R.G BORUAH
         ROAD GUWAHATI 24, MOUZA BELTOLA, PS GEETANAGAR, DIST KAMRUP
         M ASSAM

         2: AMAN ULLA
          S/O ANJUMAN MAJID
         RESIDENT OF HOUSE NO. 11
          MILAN NAGAR PATH
          BHETAPARA
          GUWAHATI 28
          MOUZA BELTOLA
          PS HATIGAON
         DIST KAMRUPM ASSAM

         3: JOYNAL ABDIN
          S/O FARZ ALI

         RESIDENT OF HOUSE NO. 28
         BISHNUJYOTI PATH
         HATIGAON
         GUWAHATI 38
         MOUZA BELTOLA
         PS HATIGAON
         DIST KAMRUPM ASSAM

         4: MD. RAHUL ALI
          S/O MAHAMMAD HUSSAIN ALI

         RESIDENT OF HOUSE NO. 149
         SIJUBARI MAIN ROAD
         HATIGAON
         GUWAHATI 38
         MOUZA BELTOLA
                                                                       Page No.# 2/14

              PS HATIGAON
              DIST KAMRUPM ASSA

            VERSUS

            ALAKA DUTTA B
            W/O MR. BIREN DUTTA, RESIDENT OF SAWKUCHI, HOCKEY STADIUM
            ROAD, GUWAHATI 40, DIST KAMRUP M ASSAM




Advocate for the Petitioner   : MR J U AHMED, MR Z RAHMAN,MR. J AHMED,MS J YESMIN

Advocate for the Respondent : MS D DUTTA, MR. B KONWAR,MR. M DUTTA

BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Advocate for the appellants : Mr. J. Ahmed

Advocate for the respondent : Mr. B. Konwar

Date on which judgment is reserved : 26.08.2025.

Date of pronouncement of judgment         :   11.11.2025.

Whether the pronouncement is of the

operative part of the judgment?           :

Whether the full judgment has been

pronounced?                            :      Yes
                                                                                      Page No.# 3/14

                              JUDGEMENT AND ORDER (CAV)

1. The appellants are aggrieved by the judgment and decree dated 06.03.2024, passed by the learned Civil Judge, (Senior Division) No. 1, Kamrup (M), in connection with Title Suit No. 690/2022, decreeing the suit in favour of the plaintiffs.

2. The appellants, (i) Madhuri Goswami Sarma, (ii) Aman Ulla, (iii) Joynal Abdin, and (iv) Md. Rahul Ali were the defendants and the proforma defendants arrayed in the title suit, whereas the respondent was the plaintiff of the original title suit. The appellants herein will be referred to as the defendants, whereas the respondent shall be referred to as the plaintiff.

Case of the Plaintiff:-

3. The plaintiff brought up this title suit, contending inter alia that the plaintiff entered into an agreement for sale with defendant No.1, Madhuri Goswami Sarma for a parcel of land admeasuring 1 Katha 10 Lechas appertaining to Dag No. 678(old)/1682(new) of K.P. Patta No. 46(old)/55(new). The agreement was for a sale consideration of Rs. 30 Lacs on 01.05.2013, and the plaintiff had already paid Rs. 10,00,000/- on the day of the execution of the agreement to the defendant. Despite receiving Rs. 29,90,000/-, out of the total sale consideration of Rs. 30 Lacs on various dates, the defendant No. 1 failed to execute a registered sale deed in favour of the plaintiff, in violation of the agreed terms and conditions of the contract.

4. It is contended that the defendant on several pretexts kept delaying to perform her part of the contract. However, in the month of September 2019, the plaintiff found out that the application for sale permission before the ADC was rejected. The plaintiff took action and sent several Advocate notices on 01.07.2022, 18.07.2022 and 02.08.2022, demanding that the defendant execute the final sale deed within 15 days from the receipt of notice.

5. It is averred that despite admitting the execution of the agreement for sale and receipt of the amount, the defendant refused to execute the final sale deed, expressing a desire to refund the advance payment. The defendants have also executed an irrevocable power of attorney in favour of Aman Ulla, illegally trying to alienate the suit property. Aman Ulla is arrayed as proforma defendant No. 2. On 16.11.2022, the plaintiff discovered that the defendant, in pursuance of the power of attorney, illegally executed an agreement for sale for Page No.# 4/14

the same plot of land, vide deed No. 21419 dated 28.09.2022, in favour of the proforma defendants, Joynal Abdin and Md. Rahul Ali with respect to the suit property. The plaintiff was impelled to bring up the suit for specific performance of contract.

Case of the Defendants:-

6. The defendants have jointly filed a written statement. It is contended by the defendants that in Clause-7 of the initial agreement dated 01.05.2013, it was provided that at the time of handing over possession of the property, the same shall be demarcated and measured, but the concerned authorities subsequently raised question on demarcation before issuance of land sale permission/NOC, and there was a delay in obtaining the NOC. The defendants cannot be held responsible for the delay in obtaining the NOC. No written limit was specified in the agreement dated 01.05.2013, but it was verbally agreed upon by both the parties that the final sale deed shall be executed and registered within a period of one month from the date of receipt of the NOC. Immediately after receipt of the NOC, the defendant No. 1 informed the plaintiff about the same, vide notice dated 18.06.2022, but there was no response from the side of the plaintiff. Several notices were also sent by the defendant No. 1 to the plaintiff requesting her to come forward and expedite the execution and registration of the sale deed but the plaintiff ignored her requests.

7. It is contended that instead of taking steps for execution and registration of the final sale deed, the plaintiff tried to obtain a copy of the sale permission and NOC and made an attempt to sell the suit land to other parties at a higher price. On discovering such malicious and unauthorized action of the plaintiff, the defendant No. 1 executed an agreement dated 28.09.2022, and the power of attorney dated 28.09.2022 under compelling circumstances. As the market value of the suit land has increased manifold, the defendant No. 1 was not in a position to sell the suit land to the plaintiff according value of the land agreed way back in the year 2013 and the defendant No. 1 is willing to return the money received from the plaintiff.

8. On the other hand, the defendant Nos. 3 and 4 have entered into an agreement dated 23.09.2022 to purchase the suit land without any information that the suit land was already under an agreement to be sold to the plaintiff and they have already paid an advance Page No.# 5/14

of Rs. 5 Lacs and have taken over khas possession of the suit land. Being bonafide purchasers, their interests would be jeopardized and they ought not to be deprived of continuing with the possession of the suit land. The suit land is described in the Schedule-A of the plaint.

Decision of the learned Trial Court:-

9. It was held by the learned Trial Court that the defendants responses were evasive in nature and they have not directly denied of an agreement executed between the parties for sale of land for a consideration and receipt of the consideration by the defendant No. 1. It has been held that according to established legal principles, when an assertion of the plaintiff's claim is not explicitly refuted in the written statement, it is constituted as accepted within the principles of the doctrine of non-traversal. It was held that any crucial statement left unaddressed is admitted under Order VIII Rule 5 of the Code of Civil Procedure (CPC for short).

10. It was held that the Court is obliged to consider the agreements in the pleadings as acknowledged by the defendant on the legal principles which serves to uphold the integrity and fairness of the judicial proceedings by ensuring that all pertinent claims are duly contested and addressed. It was observed by the Trial Court that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted.

11. The learned Trial Court relied on several decisions of the Hon'ble Supreme Court and decreed the suit in favour of the plaintiff on the strength of the pleadings alone. The learned Trial Court held that the written statement was evasive, subtle and nuanced and against the principles of law. The plaintiffs were not allowed to adduce evidence and in view of Order XII Rule 6 of the CPC read with Order VIII Rule 3, 4 & 5 of the CPC, this case was heard and disposed of.

12. Now, the point for determination is:- whether the learned Trial Court has erred in decreeing the suit, (i) without framing issues, and (ii) without according an opportunity to the defendants to adduce evidence.

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13. Heard learned counsel Mr. J. Ahmed for the appellants and learned counsel Mr. B. Konwar for the respondent.

Arguments on behalf of the defendants/appellants:-

14. Learned counsel for the appellant laid stress in his argument that the Trial Court abruptly truncated the case and delivered the judgment without even framing issues. The defendants did not produce any documentary evidence nor did they adduce any oral evidence. The plaintiff has admitted that when the defendant went to request the plaintiff to execute the sale deed, the defendant No. 1 asked the plaintiff for some time as the sale permission was under process, and thereafter, the plaintiff, on the request of the defendant, agreed to wait for the sale permission.

15. It is also admitted by the plaintiff that the defendant, on several occasions, took part payments against the balance consideration amount and on 18.11.2015, the defendant No. 1 acknowledged the same by affixing her signature on the left side of the agreement dated 01.05.2013, that till 11.11.2015, the defendant No. 1 has received an amount of Rs. 25 Lacs only. It is further submitted that all the statements as made in paragraphs- 12,13,14,15,16,17,20,21,22,24,25,26,27,28,30,31,32,33,34,35 and 36 of the plaint, have been specifically denied by the defendant No. 1 through paragraph-6 of her written statement. The defendants have denied that the written statement of defendant No. 1 was evasive and subtle.

16. It is submitted that the defendant/appellant has categorically stated the reasons of delay for executing the sale deed can be attributed to the authorities who raised objection against the question of demarcation before issuance of land sale permission/NOC. Although the plaintiff has vehemently denied of any verbal agreement for execution of the sale deed within a month of the date of receipt of NOC, yet the defendant No. 1 has reiterated about such a verbal agreement. It is also contended by the defendant No. 1/appellant that the plaintiff was informed about the NOC vide notice dated 18.06.2022,but there was no response from the plaintiff and instead the plaintiff was contemplating to sell the suit land to other parties at a much higher price after registration of the final sale deed. This has been vehemently denied by the plaintiff. The defendants have also denied the plaintiff's claim that the plaintiff made her last payment on 18.11.2015, but have submitted that the plaintiff has made her last Page No.# 7/14

payment in the year 2022.

17. It is further submitted by the learned counsel for the defendants/appellant that as the defendants have categorically denied the plaintiff's contentions, issues ought to have been framed. It is also contended that the entire case is barred by limitation. A compromise deed was executed between the parties on 17.10.2023. The order in the original Title Suit dated 23.11.2023 reflects that the case was fixed for ADR and issues. The case was again fixed on 08.02.2024 for ADR and issues and suddenly the case was fixed on 06.03.2024 for judgment on admission. It is submitted that the agreement was executed for settlement between the parties and thus the initial agreement ceases to exist and thus no order for performance of contract could have been passed by the Trial Court with a direction to execute the sale deed with a direction to the defendant No. 1 to execute the sale deed.

18. It is submitted that the defendants will have to produce documentary evidence and they will be highly aggrieved if they are not allowed to adduce evidence. It is submitted that as per Order XIV Rule 1 of the CPC, issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. It is amply clear that there were issues to be framed in this case and issues were not framed in violation of provisions of Order XIV Rule 1, 2 & 3 of the CPC. It is further contended that this suit is barred by Article 54 of the Indian Limitation Act, 1963 (the Limitation Act for short). Paragraph-9 of the plaint itself reveals that the agreement was executed on 01.05.2013, whereas the Title suit was filed on 18.11.2022, way beyond the period of limitation of 3 years.

19. Learned counsel for the defendant No. 1 has relied on the decision of the Hon'ble Supreme Court in Balraj Taneja & Anr Vs. Sunil Madan & Anr reported in AIR 1999 SC 3381, which has observed that:-

"28. A perusal of the above judgment will indicate that the suit had been decreed only because of the failure of the defendants in filing the written statement. This exhibits the annoyance of the Court which is natural as no Court would allow the proceedings to be delayed or procrastinated. But this should not disturb the judicial composure which unfortunately is apparent in the instant case as the judgment neither sets out the facts of the case nor does it Page No.# 8/14

record the process of reasoning by which the Court felt that the case of the plaintiff was true and stood proved.

29. As will be evident from the facts set out above, the plaint itself showed a serious disputed question of fact involved between the parties with regard to the obtaining of Certificate (permission) from the Income Tax Department and its communication by the defendants to the plaintiff (Respondent No. 1). Since this question of fact was reflective of the attitude of the plaintiff, whether he was ready and willing to perform his part of the contract, it had to be proved as a fact that the Certificate (permission) from the Income Tax Department had not been obtained by the defendants and, therefore, there was no occasion of sending it to him. If the pleadings of respondent No. 1 were limited in character that he had pleaded only this much that the defendants had not obtained the Certificate (permission) from the Income Tax Department and had not sent it to him, this fact would have stood admitted on account of non-filing of the Written Statement by the defendants. But Respondent No. 1, as plaintiff, himself pleaded that "defendants insisted that they had obtained the Certificate (permission) from the Income Tax Department and sent it to him". He denied its having been obtained or sent to him. Non-filing of the Written Statement would not resolve this controversy. The plaint allegations, even if treated as admitted, would keep the controversy alive. This fact, therefore, had to be proved by the plaintiff and the Court could not have legally proceeded to pass a judgment unless it was established clearly that the defendants had committed default in not obtaining the Certificate (permission) from the Income Tax Department and sending the same to the plaintiff. "

Arguments for Respondent/Plaintiffs:-

20. The respondent/plaintiff through the affidavit-in-opposition and through the argument has submitted that after executing the initial deed of agreement on 01.05.2013, the appellant No. 1 obtained NOC as late as in the year 2016, but the NOC was inaccurate and then the appellant No. 1 sought time from the plaintiff to obtain a fresh sale permission and the plaintiff learnt from reliable source that the defendant No. 1 applied for NOC in the last part of the year, 2019 and the same was rejected by the ADC on 23.07.2021 i.e., after more than 2 years of obtaining the first NOC. It is further contended by the plaintiff that there was no verbal agreement between the plaintiff and the defendant No. 1 to execute and register the final sale deed within one month of receipt of NOC and it was the defendant No. 1 who had failed to obtain the NOC in the first place.

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21. It is further contended by the plaintiff that she had served 2 legal notices on the defendant No. 1 on 01.07 2022 and 18 07 2022, requesting her to execute the sale deed in compliance with the agreement for sale, but instead of executing the sale deed, the defendant No. 1 responded with letters containing baseless, false and concocted allegations. Thereafter on 02.08 2022, another legal notice was served upon the defendant No. 1 by the plaintiff, directing her to execute the final sale deed within 15 days from the date of receipt of the notice. It is further contended that in her reply dated 16.06.2022 to the notice, defendant No. 1 has expressly admitted the execution of the deed of the agreement dated 01.05.2013 and acknowledged receiving the consideration amount, but despite admission, she unjustifiably refused to execute the final sale deed and instead expressed her desire to refund the consideration amount demonstrating clear intention to evade her contractual obligations.

22. It is further averred that without the knowledge of the plaintiff, the defendant No 1 executed an irrevocable power of attorney bearing serial number 26681 deed number 18859, dated 29.09.2022 in favour of the appellant Nos. 2, 3 and 4 with deliberate intentions to defraud the plaintiff and unjustly enrich herself. This conduct constitutes a willful attempt to evade her legal responsibilities and clear violation of the terms and conditions of the deed of agreement dated 01.05.2013. Furthermore, in the joint written statement, it has been expressly admitted that the deed of agreement dated 01.05.2013 was executed by defendant No 1, and notably in paragraph-10 of the written statement, the defendant No. 1 has admitted that she is not willing to sell the suit land to the plaintiff citing an increase in its market value. Instead of performing her contractual obligations, the defendant No. 1 now seeks to return the money received from the plaintiff solely to gain an undue financial advantage, exposing her dishonest intent to defraud the plaintiff. This is in contravention to the paragraph-4 of the agreement date 01.05.2013, which explicitly states that the seller shall have no right to enhance the consideration amount of the property.

23. It is further submitted that the learned Trial Court has not erred in deciding the case without framing issues as the written statement of the appellant was indeed evasive. In an omnibus manner, the appellants refuted the contentions in the plaint. A categorical and specific parawise denial of the plaint was amiss except for the fact that all the paragraphs in the plaint were conjunctly denied by the appellant through the paragraph 6 of the written Page No.# 10/14

statement. It is also germane to mention that the agreement executed between both the parties had been admitted and so is the receipt of consideration by the appellants.

24. It is submitted on behalf of the plaintiff that as the proforma defendant Nos. 2 and 3 were authorized by the defendant No 1 to amicably settle the matter, he approached the plaintiff for settlement. They persistently pressurized the plaintiff for a settlement and owing to financial constraints in continuation with the civil litigation, the plaintiff agreed to compromise and settle the dispute and this is reflected in the Clause-2 of the deed of compromise, which has been produced at the appellate stage and not during the pendency of the original proceeding.

25. It is further submitted that, as per the deed, total agreed amount payable to the plaintiff was Rs 40,00,000/-, the appellant No. 3 made an initial payment of Rs 4,00,000/- at the time of execution of the deed. Clause-3 of the deed of compromise categorically stipulated that the remaining amount of Rs. 36,00,000/- was to be paid within three months. It was provided that, in the event of default in payment by the first party, the second party (plaintiff), would retain the right to proceed with the pending title suit. As per the agreed terms, the outstanding amount of Rs. 36,00,000/- was required to be paid on 17.01.2024 but the payment was not made within the stipulated time, rendering the deed of compromise infructuous.

26. Notwithstanding the lapse of agreement, in an arbitrary and whimsical manner, the appellant No. 3 subsequently deposited a sum of Rs 1,00,000/- on 19.01.2024 i.e., after expiry of the stipulated period which was rightfully rejected by the plaintiff. Thereafter, the plaintiff contacted the appellant No. 3 over phone and requested him to provide the bank details for the purpose of returning the amount deposited, but the appellant No. 3 refused to respond.

27. It is further contended that the deed of compromise was executed on 17.10.2023, but the appellant No. 3 deposited the amount of Rs 1,00,000/- on 19.01.2024. The appellant No 3 did not contact, or approach the plaintiff but, only after the stipulated time as agreed upon by both the parties have elapsed, the appellant No. 3, without any information deposited an amount of Rs 1,00,000/ in the plaintiff's account.

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28. On 23.11.2023, the plaintiff verbally apprised the learned Trial Court about the execution of the deed of compromise. Consequently, the learned Trial Court taking note of the same, fixed the next date well beyond the stipulated period prescribed in the deed of compromise which was to expire on 17.01.2024. The case was fixed on 08.02 2024 and subsequently on appearance of both the parties and after hearing the parties, the learned Trial Court fixed the next date on 06.03.2024 for judgment on admission. It is further submitted that it has been falsely contended by the appellant No. 1 that the deed of compromise was not placed on record.

29. It is further averred that the last page of the deed of compromise marked as Annexure-4 of this appeal has not been annexed deliberately with the deed of compromise. It is further contended that the admission of the agreement itself entitles the plaintiff to succeed and there was no room for framing of issues and leading evidence.

30. Learned counsel for the plaintiff has laid stress in his argument that the period of limitation runs from the date when the plaintiff had noticed that the performance is refused and thus this suit is not barred by limitation.

31. Thus, the interference of the decision of the learned Trial Court is not warranted as the deed of compromise was prepared by the defendants counsel, they are liable for not producing the deed of compromise before the Trial Court and they are not entitled to the benefit of adducing evidence at this stage as per Order 41 Rule 27 of the CPC as there were no exceptional circumstances preventing them from producing the deed of settlement before the learned Trial Court.

Decision:-

32. The object of Order 12 Rule 6 is to enable a party to obtain speedy relief. It is submitted that the judgment and decree passed by the learned Trial Court is solely based on admission made by the defendants and their failure of specific denial. There was no parawise denial of the plaint as is the mandate of the law. It is a well established principle that absence of a parawise reply to the plaint creates ambiguity and a vague and evasive denial of a plaint is legally inadequate. Sections 17 and 18 of the Indian Evidence Act and Section 15 of the Page No.# 12/14

Bharatiya Saksha Adhiniyam, 2023 (BSA for short) defines admission and Section 18 further delineates the persons competent to make such admissions. Section 58 of the Evidence Act, vis-a-vis Section 53 of the BSA, stipulates that facts admitted need not be proved.

33. It is not in dispute that there was a delay in obtaining NOC. Defendant No. 1 by stating that they have made several requests for the NOC tried to dispel any allegation of inaction on their part to perform their part of the contract of defendant No. 1. The plaintiff has also admitted that she had served two legal notices to the defendant No. 1 on 01.07.2022 and 18.07.2022, requesting her to execute the sale deed in compliance with the agreement for sale, but instead of executing the sale deed, the defendant No. 1 responded with letters containing baseless and false and concocted allegations. Therefore, the plaintiff has admitted that allegation has been leveled against her by the defendant. This substantiates the submission on behalf of the defendant No. 1 that a dispute arose when the plaintiff clandestinely tried to sell the subject land.

34. It appears that the appellant at present has no intention to sell the land as the market value of the land has increased. The appellant is even willing to return the advance received, to the defendant. The appellant is willing to return the advance received by her instead of performing her contractual obligations and this has been mentioned by the appellant in the Para-10 of the appeal memo. It is apt to mention at this juncture that it was agreed upon by the appellant in Para-4 of the agreement dated 01.05.2013, that the consideration would not be enhanced. At the same time, this Court cannot be oblivious of a deed of settlement executed between the parties. The plaintiff though asserted through her argument that the deed of compromise was executed only under pressure exercised by the appellant who made several requests for a settlement. The plaintiff has stated that owing to financial constraints in continuation with the civil litigation, the plaintiff agreed to compromise and settle the dispute and this is reflected in Clause-2 of the deed of compromise. This allegation of persistent pressure exercised on the plaintiff for a settlement does not entitle the plaintiff to shy away from the deed of settlement and emphasize only on the agreement executed on 01.05.2013.

35. Pursuant to the deed of settlement, 1 (one) lac has already been paid back to the plaintiff and the plaintiff has not accepted the remaining 4 (four) lacs offered by the defendants. A scrutiny of the record reveals that there is no order passed by the Court Page No.# 13/14

relating to any verbal submission of a deed of compromise by the plaintiff, although it is stated that the plaintiff apprised the learned Trial Court on 23.11.2023, verbally about the execution of the deed of compromise.

36. The Hon'ble Supreme Court in Balraj Taneja and Anr (Supra), has observed that it is a matter of Court satisfaction and therefore, only on being satisfied that there is no fact, which need to be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. In the instant case, it appears that for the interest of justice, an opportunity can be accorded to the appellant to substantiate her written statements through issues framed and evidence adduced.

37. In the wake of the foregoing discussions and after considering the arguments on behalf of both the sides, it appears that there are some issues which has to be decided by a court of law. This Court cannot be oblivious of the omnibus manner in which the written statement was submitted, but the pleadings itself elicits issues between both the parties. Moreover, it is undisputed that an agreement was executed between both the parties.

38. A close scrutiny of the Trial Court Record reveals that the deed of compromise was not produced before the Trial Court. Thus, it is manifest that the order was passed without taking into the consideration the deed of compromise which was executed after the agreement dated 01.05.2013. The plaintiff has submitted that this agreement was brought to the notice of the Trial Court verbally, but the order impugned by the appellant/defendant No. 1, does not at all reflect that a deed of compromise was executed between both the parties on 17.10.2023.

39. Thus, this court is of the opinion that an opportunity has to be accorded to the defendants to contest the original title suit. The deed of compromise executed between both the parties during the pendency of the title suit is not accepted as evidence under Order XXXXI Rule 27 of the CPC, but this deed dated 17.10.2023 cannot be written off as this was executed before the impugned order was passed by the Court. The parties are at variance and for the interest of justice, the defendants/appellants may be allowed to place their case.

40. In view of my foregoing discussions, appeal is allowed allowing an opportunity to the appellants to contest the proceeding. The impugned judgment and decree dated 06.03.2024, Page No.# 14/14

in TS No. 690/2022, is hereby set aside.

41. Send back the Trial Court Records.

42. No order as to costs.

JUDGE

Comparing Assistant