Sri Subrata Chowdhury vs Sri Amaresh Chandra Debnath
2022 Latest Caselaw 409 Tri

                          HIGH COURT OF TRIPURA
                                AGARTALA
                            RFA No.11 of 2018
Sri Subrata Chowdhury,
Son of late Rasha Raj Chowdhury, resident of North
Joynagar, PS- West Agartala, P.O.- Agartala, District- West
Tripura, PIN-799001
                                                          ............... Appellant(s)
                                       Versus
Sri Amaresh Chandra Debnath,
Son of late Pran Chaitanya Debnath, resident of Joynagar,
Madhya Rasta, PS- West Agartala, P.O.- Agartala, District-
West Tripura, PIN-799001
                                                        ............... Respondent(s)

BEFORE HON'BLE MR. JUSTICE S. TALAPATRA HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Appellants(s) : Mr. D. Bhattacharjee, Sr. Advocate, Mr. Samar Das, Advocate.

For Respondent(s) : Ms. S. Deb(Gupta), Advocate, Ms. S. Nandy, Advocate.

       Date of hearing             :      3rd February, 2022.

       Date of Judgment & Order :         7th April, 2022.

       Whether fit for reporting   :      NO


                           JUDGMENT AND ORDER
(S. G. Chattopadhyay,J)

This is an appeal under Section 96 of the Code of Civil Procedure,

1908 from the decree dated 11.05.2018 drawn in Title Suit No. 77 of 2015

pursuant to judgment dated 27.04.2018 passed by the Civil Judge (Sr.

Division), West Tripura, Agartala directing the appellant (defendant in the trial

court) to execute a sale deed in favour of the respondent (plaintiff in the trial

court) in respect of the suit land within a period of two months from the date RFA No. 11 of 2018 Page - 2 of 13

of judgment towards specific performance of the agreement dated 02.03.2015

(Exbt.1) executed between the parties to the lis.

[2] The seminal facts which are relevant for disposal of this appeal

are as under:

The appellant who was the defendant in the trial Court held title

over the land measuring 0.034 acres which has been described in the schedule

of the plaint. The parties entered into an unregistered written agreement on

02.03.2015 whereby the appellant(defendant) who was in need of cash agreed

to sell out the suit land to the respondent(plaintiff) for a consideration price of

Rs.66,00,000/-(rupees sixty six lakhs) out of which Rs.15,00,000/-(rupees

fifteen lakhs) was paid in advance by the respondent(plaintiff) in two cheques

dated 02.03.2015 drawn on SBI, Agartala Branch and the

appellant(defendant) had agreed to execute a sale deed in favour of the

respondent(plaintiff) after receiving the balance of Rs.51,00,000/- (rupees fifty

one lakhs) within 31st July, 2015. The respondent(plaintiff) by filing the suit at

the trial Court alleged that despite his readiness and willingness to pay the

agreed amount of money, the appellant(defendant) did not execute a sale

deed in his favour in respect of the suit land within stipulated period of time.

The respondent(plaintiff) then sent notice dated 19.02.2015 followed by notice

dated 16.07.2015 urging the appellant(defendant) to execute the sale deed

after accepting the balance of Rs.51,00,000/-(rupees fifty one lakhs) in terms

of their contract. Having received no response from the appellant, respondent

being plaintiff filed the suit at the trial court seeking direction to the

appellant(defendant) to execute a registered deed of sale in his favour in

RFA No.11 of 2018 Page - 3 of 13

respect of the suit land after accepting the remaining amount of the

consideration price i.e. Rs.51,00,000/-(rupees fifty one lakhs).

[3] The appellant who was the defendant at the trial court contested

the suit by filing a written statement. He admitted that he entered into a

written agreement with the respondent to sell out the suit land and for this

purpose he also received Rs.15,00,000/- in advance on 02.03.2015. According

to the appellant(defendant) the price of the land was actually settled at

Rs.70,00,000/- (rupees seventy lakhs) and, therefore, after payment of

advance of the sum of Rs.15,00,000/- (rupees fifteen lakhs), the

respondent(plaintiff) was supposed to pay to him a sum of Rs.55,00,000/- and

that too for the price of the land only. According to the appellant, it was agreed

between the parties that price of the building would be settled separately after

proper valuation of the building. Accordingly, the appellant was urging the

respondent for valuation of the building so as to enable him to execute the sale

deed in favour of the respondent after accepting the price of the building as

well as the remaining sum of Rs.55,00,000/- as the price of the land. But the

respondent(plaintiff) played a fraud by altering the figure of Rs.70,00,000/- for

Rs.66,00,000/- in the agreement dated 02.03.2015 by interpolation. The

appellant(defendant) therefore, pleaded at the trial Court that the balance

amount of the price of the land minus the advance would be Rs.55,00,000/-

and moreover, the agreement was rendered unenforceable due to the fraud

played by the respondent.

[4] On the basis of the pleadings of the parties, the learned trial

Court framed six issues in all which are reproduced hereinunder:

RFA No.11 of 2018 Page - 4 of 13

"I S S U E S

(i) Is the suit maintainable in its present form and nature?

(ii) Has the plaintiff any cause of action to institute the instant suit?

(iii) Has the plaintiff entered into an agreement for sale dated 02.03.2015 to purchase the suit land?

(iv) Are the averments in respect of readiness and willingness to perform a part of the contract in their true construction are sufficient to enforce Specific Performance?

(v) Is the plaintiff entitled to a decree, as prayed for?

(vi) What other relief/reliefs the plaintiff is entitled to?"

[5] It is relevant to note that in order to establish his claim, the

respondent (plaintiff) examined five witnesses including himself and introduced

five documents which were taken into evidence and marked as Exbt.-1 to

Exbt.5. The appellant (defendant) on the other hand examined two witnesses

including himself and relied on the statements of his bank accounts which were

taken into evidence by the trial court and marked as Exbt.A1 and Exbt.A2.

[6] On due appreciation of the pleadings of the parties and the

evidence on record, Issue No.1 with regard to the maintainability of the suit,

Issue No.2 with regard to cause of action and Issue No.3 pertaining to the

execution of the agreement for sale dated 02.03.2015 were answered in the

affirmative and in favour of the respondent(plaintiff). Among the rest of the

issues, Issue No.4 pertaining to readiness and willingness of the

respondent(plaintiff) to perform his part of the contract was also decided in

favour of the respondent (plaintiff) and following the decision of Issue No.4,

RFA No.11 of 2018 Page - 5 of 13

the suit came to be decreed by judgment and order dated 27.04.2018 followed

by a decree drawn on 11.05.018 directing the appellant (defendant) to execute

a sale deed in favour of the plaintiff-respondent after accepting the balance

amount as per agreement(Exhibit-1). The concluding paragraph of the

judgment, impugned, reads as under:

"10. In the result, the suit stands decreed on contest with cost of the suit.

The defendant is directed to perform his part of the contract and take necessary step for facilitating the execution of a sale deed in favour of the plaintiff over the suit land, within the period of two months from the date of this order, after receiving the balance amount as agreed in the agreement for sell(Exbt.1).

                    The Sheristadar        is   to   prepare    decree
              accordingly.
                    Thus the      suit   stands      disposed   of   on
              contest.***"


[7]           Heard   Mr.   Debalaya     Bhattacharjee,   learned    Sr.   Advocate

appearing for the appellant along with Mr. Samar Das, learned Advocate and

heard Ms. S. Deb (Gupta), learned advocate appearing for the respondent.

[8] Mr. D. Bhattacharjee, learned senior counsel appearing for the

appellant contends that respondent (plaintiff in the trial Court) obtained the

decree by fraud and therefore, he cannot be allowed to enjoy its fruit. Counsel

contends that the consideration price of the decreetal land was actually settled

at Rs.70,00,000/- and it was so written in the agreement (Exbt.1) but the

respondent(plaintiff) made it Rs.66,00,000/-(rupees sixty six lakhs) by

interpolation beyond the knowledge of the appellant(defendant). Though the

fact was brought to the notice of the trial court, the learned trial judge ignored

RFA No.11 of 2018 Page - 6 of 13

it and decreed the suit in favour of the respondent (plaintiff). Counsel contends

that the decision of the trial court is thus vitiated by fraud and the same should

be set aside by allowing this appeal. Counsel contends that fraud vitiates

everything and therefore, the respondent (plaintiff) who approached the trial

Court with unclean hands and obtained a relief by playing fraud on the court

should not be allowed to take the benefit of such decree. To nourish his

contention, counsel has relied on the decision of the Apex Court in S.P.

Chengalvaraya Naidu(dead) by Lrs. Vrs. Jagannath(dead) by Lrs. and

Others: reported in (1994)1 SCC 1 wherein the Apex Court held as under:

"5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an

RFA No.11 of 2018 Page - 7 of 13

advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-

mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B- 15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party."

[9] Mr. Bhattacharjee, learned Sr. Counsel has also relied on the

decision of the Apex Court in Hamza Haji Vrs. State of Kerala and

Another; reported in (2006) 7 SCC 416 wherein the Apex Court reiterated

the law laid down in the case of S.P. Chengalvaraya Naidu (supra) and held

as under:

"20. It is not necessary to multiply authorities on this question since the matter has come up for consideration before this Court on earlier occasions. In S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors. [(1993) Supp. 3 SCR 422], this Court stated that:

"It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree --- by the first court or by the highest court --- has to be treated as a nullity by every court, whether superior or inferior. It can be

RFA No.11 of 2018 Page - 8 of 13

challenged in any court even in collateral proceedings."

The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence. Their Lordships stated:

"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, Bank loan- dodgers, and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."

[10] Mr. Bhattacharjee, learned Sr. Counsel had argued that in view of

the law laid down by the Apex Court in the judgments cited to (supra), the

decision rendered by the learned Court by the impugned judgment comes to be

erroneous as the decree was obtained by fraud and, therefore, the said

judgment should be set aside by allowing the appeal.

[11] Ms. S. Deb(Gupta), learned counsel appearing for the respondent

(plaintiff) on the other hand contended that it was established by the

respondent (plaintiff) at the trial court that the agreement dated 02.03.2015

was duly executed between the parties and the plaintiff was always ready and

willing to perform his part of the agreement. Therefore, the trial Court having

exercised its judicious discretion under Section 20 of the Specific Relief Act,

1963 rightly decreed the suit. In support of her contention, Ms. Deb(Gupta),

learned counsel has relied on the decision of the Apex Court in the case of RFA No.11 of 2018 Page - 9 of 13

Sughar Singh Vrs. Hari Singh(Dead) through Lrs. and Another;

reported in 2021 SCC OnLine SC 975 wherein the Apex Court in paragraph-

46 of the judgment has held as under:

"46. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant - executant of the agreement to sell, while exercising the discretion judiciously."

Counsel of the respondent (plaintiff) has also contended that the

judgment of the trial court is founded on evidence and based on sound

reasoning which cannot be faulted with. Learned Counsel, therefore, urges the

Court to affirm the judgment and decree passed by the learned trial court by

dismissing the present appeal.

RFA No.11 of 2018 Page - 10 of 13

[12] Considered the submissions made by learned counsel

representing the parties. Perused the entire record including the documents

adduced on behalf of the parties.

[13] It is not in dispute that a deed of agreement (Exbt.1) was

executed between the parties on 02.03.2015 whereunder the appellant

(defendant) received an advance of Rs.15,00,000/- from the respondent

(plaintiff) agreeing to sell the decreetal land to the respondent(plaintiff) by

executing a sale deed within 31st July, 2015 after accepting the balance

amount. It has been pleaded by the appellant that the actual consideration

price was settled at Rs.70,00,000/- and after payment of Rs.15,00,000/- in

advance, the respondent(plaintiff) was required to pay Rs.55,00,000/- which

was so written in the agreement but the figure and words of the consideration

price was made Rs.66,00,000/- and the figure and words of the balance

amount was made Rs.51,00,000/- by interpolation by the respondent(plaintiff).

The respondent (plaintiff), tried to establish this fact at the trial Court by

adducing evidence. The respondent (plaintiff) as P.W-1 admitted in his cross

examination that in the agreement, the amount of Rs.66,00,000/- and

Rs.51,00,000/- in words and figure were overwritten with pen. He also

admitted that the original agreement was always retained by him. The

appellant (defendant) suggested to him that the consideration money was

Rs.70,00,000/- which was denied by the plaintiff (respondent). However, the

appellant (defendant) nowhere in the cross examination denied the fact that he

did not receive Rs.15,00,000/- in advance pursuant to the said agreement.

RFA No.11 of 2018 Page - 11 of 13

[14] P.W-2, Santanu Sharma (Bhattacharjee) also supported the case

of the respondent (plaintiff) at the trial court. In his cross examination it was

suggested to him that the consideration price was never fixed at

Rs.66,00,000/-. The suggestion was denied by him. He also denied the

suggestion of the counsel of the appellant (defendant) that he deposed falsely

in favour of the respondent (plaintiff). P.W-3, Dilip Kr. Chakraborty in his

examination in chief supported the entire case projected by the respondent

(plaintiff). In his cross examination it was simply suggested to him that his

statements made out in examination in chief were not true. He denied the

suggestion. P.W-4, Narayan Datta Gupta also lent support to the case of the

respondent (plaintiff) and in his cross examination he denied the suggestion of

the counsel of the appellant (defendant) that his statements were false. P.W-5,

Bijan Roy is an advocate who stated in his examination-in-chief that the

agreement dated 02.03.2015 was drafted by him under the instructions of the

appellant (defendant). He also stated in his examination in chief that at page 2

of the agreement some corrections were made in presence of the parties.

During his cross examination, the over writings in the agreement was shown to

him. The witnesses stated that those were made in presence of the parties.

[15] The appellant (defendant) on the other hand examined himself as

DW-1. In his cross examination, he admitted the execution of the agreement

dated 2.3.2015 for sale of the suit land and he also admitted that he received

Rs.15,00,000/- from the respondent (plaintiff) in two cheques. According to

him, the consideration money was fixed at Rs.70,00,000/-. In his cross

examination, he further stated that he did not respond to the notice of the

RFA No.11 of 2018 Page - 12 of 13

respondent (plaintiff) for executing a registered sale deed in favour of the

respondent (plaintiff) because no assessment of building was done. DW-2

came to prove the statements of accounts of the respondent (plaintiff) which

are of no relevance.

[16] The contention of the appellant that by the agreement dated

02.03.2015 only the price of the suit land was agreed upon and it was agreed

between the parties that valuation of the building would be determined

separately is not acceptable because the agreement (Exbt.1) does not contain

any such stipulation. The appellant (defendant in the trial court) did not also

lead any evidence before the trial court in this regard. Evidently, the agreement

(Exbt.1) is found to be duly executed between the parties and the respondent

(plaintiff) at the trial court was found to be always ready and willing to perform

his part of the agreement by paying the balance amount of consideration.

Admittedly, the appellant (defendant) received Rs.15,00,000/- from the

respondent(plaintiff) as advance in terms of the agreement and he never

offered refund of money to the respondent(plaintiff).

[17] In such circumstances, we do not find any infirmity in the findings

of the learned trial judge. We have gone through the judgments which have

been referred to by the counsel of the appellant. The facts of those cases are

completely distinguishable for which the appellant cannot derive any benefit

from those decisions. However, Ms. S. Deb(Gupta), learned counsel of the

respondent (plaintiff) has been fair to submit that since the price of the land

has also gone up with the passage of time, respondent(plaintiff) is ready to pay

Rs.70,00,000/- to the appellant (defendant) as price of the land.

RFA No.11 of 2018 Page - 13 of 13

Rs.15,00,000/- (rupees fifteen lakhs) having been paid in advance,

respondent(plaintiff) will pay the balance of Rs.55,00,000/- (rupees fifty five

lakhs) to the appellant(defendant).

[18] In view of such submission made on behalf of the respondent

(plaintiff), the decree passed by the trial Court is modified as under:

The appellant (defendant) is directed to execute a registered sale

deed in favour of the respondent (plaintiff) in respect of the decreetal land

within a period of three months from today after receiving Rs.55,00,000/-

(rupees fifty five lakhs) from the respondent(plaintiff).

[19] In terms of the above, the appeal stands disposed of. The decree

be drawn up accordingly and the LCR be sent down after drawing up the

decree. Pending application(s), if any, shall also stand disposed of.

               JUDGE                                        JUDGE




Dipankar




RFA No.11 of 2018