Smt. Sanghita Datta vs Shri Ashim Roy
2022 Latest Caselaw 866 Tri

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                             HIGH COURT OF TRIPURA
                                A_G_A_R_T_A_L_A
                                RFA. No. 04 of 2021
      ***As per the Hon'ble Court's order dated 12.05.2022 passed in I.A. No.02 of 2022 in connection with RFA
      04 of 2021, the names of son and daughter of deceased Nilanjan Datta have been incorporated as per
      schedule.
1.    Smt. Sanghita Datta, wife of Shri Nilanjan Datta.
2.    Sri Dipanjan Datta, son of late Nilanjan Datta.
3.    Smt. Chandni Dutta, daughter of late Nilanjan Datta.
      All are the residents of Ramnagar Road No.5, First Crossing,
      P.O. Ramnagar-799002, P.S. West Agartala, District: West
      Tripura.

                                                                    .... Defendant-appellants

                                         -V E R S U S-

1.    Shri Ashim Roy, son of late Anjan Kanti Roy, resident of
      Arundhati Nagar, Ramthakur Para, P.O. Arundhati Nagar-
      799003, P.S. Arundhati Nagar, District: West Tripura.

                                                                     ..... Plaintiff-respondent.

B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD

For Appellant(s) : Mr. S. M. Chakraborty, Sr. Advocate.

Mr. T. K. Deb, Advocate.

For Respondent(s) : Mr. D. Bhattacharjee, Sr. Advocate Mr. Samar Das, Advocate.

Date of hearing and
delivery of judgment and order :                         19.09.2022
Whether fit for reporting :   NO


                            JUDGMENT & ORDER [ORAL]

Heard Mr. S. M. Chakraborty, learned senior counsel assisted by Mr. T. K. Deb, learned counsel appearing for the appellants. Also heard Mr. D. Bhattacharjee, learned senior counsel assisted by Mr. Samar Das, learned counsel appearing for the respondent.

[2] This appeal has been filed under Section-96 of the Code of Civil Procedure, 1908 against the judgment and order dated 27.01.2021 passed by the learned Civil Judge, Senior Division, Court No.2, West Tripura, Agartala, in connection with Title Suit No.43 of 2016 for granting decree "Specific Performance of Contract."

[3] The factual aspects of the case of the appellants in brief are that the appellants, being in urgent need of money, decided to sell out the land described in the plaint and proposed to the respondent to purchase the same. The plaintiff accepted the proposal and after negotiation, the price of the land was settled at Rs.5,25,000/- only, out of which an amount of Rs.1,00,000/- was paid as advance, leaving a balance of Rs.4,25,000/- with a stipulation that if the said balance amount was paid within 15.01.2016, the appellants would execute the registered sale deed in favour of the respondent.

[4] Pursuant to their settlement, an unregistered agreement was executed on 12.02.2016. Thereafter, the respondent purchased Stamp Papers, etc. for execution of the registered sale deed and approached the appellants on several dates to execute the registered sale deed in h is favour, but all in vain. So, he served a notice upon the appellants. But that notice also did not work. They also tried to pay the balance money by two cheques, which were not accepted by the appellants. So, they filed the suit for Specific Performance of Contract.

[5] After receiving summon from the Court below, the appellants contested the suit by filing a written statement. It was the categorical case of the appellants that the defendants had approached the learned Court below with unclean hands and that there was no cause of action for filing the suit, as the date of execution of the registered sale deed, which was originally fixed as 15.05.2016 has been manipulated to 15.04.2016 and in

the first page of the said unregistered agreement the correct date is available. It was also the stand of the appellants before the learned Court below that as per the stipulation contained in the agreement, the respondent was under obligation to pay the balance consideration money, in cash and there was no scope for the respondents to hand over any cheque in the purported account of payment of balance consideration money and, therefore, the respondent, after above violation of the terms and conditions of the agreement and manipulating the date, have approached the learned Court below for getting decree for Specific Performance of Contract.

[6] After completion of the trial, the learned Court below passed the impugned judgment on 27.01.2016 by passing decree for Specific Performance of Contract in the light of the agreement for sale deed dated 12.02.2016 directing the respondent herein to pay to the defendants or deposit in the learned Court the balance amount of the consideration money of Rs. 4,25,000/- on or before 26.02.2021 and on such payment being made by the respondent, the appellants are to execute the registered sale deed in favour of the respondent. For the purpose of reference, the operative portion of the impugned judgment may be reproduced hereinbelow:

"In the result, the suit of the plaintiff is decreed on contest with cost.

It is declared that the plaintiff is entitled for Specific Performance of Contract entered between him and the defendants for sale of the suit land by Agreement for Sale dated 12.02.2016 (Exhibit-1).

The plaintiff is hereby directed to pay to the defendants or deposit in this court the balance amount of consideration money of Rs. 4,25,000/- (Rupees Four Lakh and Twenty Five Thousand) on or before 26.02.2021.

On such payment/ deposit being made by the plaintiff, the defendants are directed to execute and register a Deed of Sale conveying the suit property to the plaintiff.

Prepare Decree accordingly and put up before me for signature within 15(fifteen) days from today."

[7] Being seriously aggrieved and dissatisfied with the impugned judgment passed by the learned Court below, the appellants have preferred this appeal before this Court for further adjudication.

[8] Mr. S. M. Chakraborty, learned senior counsel assisted by Mr. T. K. Deb, learned counsel appearing for the appellants has submitted that the learned Court below has committed serious error in law and fact at the time of passing the impugned judgment which is totally unsustainable in the eye of law. He has submitted that being the trial Court, it was the duty incumbent upon it to carefully and minutely go through the language contained in the said agreement wherein the manipulation of the date i.e. from 15.05.2021 to 15.04.2021 is explicit. Apart, from that the said date as to the period is also vividly mentioned in the first page of the said agreement.

[9] The learned Court below also ought to have found and appreciated that since the period of execution of the registered sale deed was up to 15.05.2016, the respondent had no scope to file the suit before the said date, as no cause of action could have arisen before the said date under any circumstances and as per law.

[10] The learned Court below also miserably failed to appreciate and understand the contention as to the making payment of the balance consideration money by the respondent to the appellant wherein it was clearly stipulated that the "same would be paid in cash", whereas, the respondent never approached the plaintiff with that amount in cash at any point of time, meaning thereby, that he himself did not follow the terms and conditions of the agreement and thereby was not at all entitled to get the decree for Specific Performance of Contract.

[11] Mr. Chakraborty, learned senior counsel has further averred that the learned Court has miserably failed to appreciate the term Specific Performance of Contract where the plaintiff who wanted specific performance was required to be aver and prove terms and conditions of the agreement without any ambiguity and also are required to show that he was always ready and willing to perform the contract in terms of the agreement. But, it was on record before the learned Court below that the respondent, as plaintiff before it, was never ready and willing to perform his performance of contract in terms of the agreement and as such, he is not at all entitled to get a decree for Specific Performance of Contract as has been passed in favour of the said respondent.

[12] The agreement which was sought to be enforced was itself void for uncertainty as to the date, indicating the period of execution of the alleged sale deed. The learned Court below while passing the judgment has dealt with unnecessary and irrelevant matters keeping aside the vital law points which are required to be considered and appreciated by rendering the judgment totally perverse, bad and unsustainable in the eye of law.

[13] It is argued that the Agreement for Sale dated 12.02.2016 has been tempered with for on the first page of the said Deed there is mention of 15.05.2016 as being the last date for performance of the contract, however, in the second page there appears that the date 15.05.2016 has been made as 15.04.2016 with over writing there in the month part.

[14] Mr. D. Bhattacharjee, learned senior counsel assisted by Mr. S. Das, appearing for the respondent has submitted that the said agreement to sell has been made on 12.02.2016 and after that the respondent waiting for response because as per agreement to sell the respondent herein already gave Rs.1,00,000/- to the appellants and he was ready with the rest amount. He has further submitted that for registered sale deed the

respondent has already purchased the stamp and prepared the sale deed as per Registration Act for registering the sell deed but the appellants avoided the process of law.

the respondent in order to honour the terms and conditions of Agreement for Sale has always been ready and willing to perform his part of obligation and for that the respondent had issued two cheques to the appellants (Exhibit-5 and Exhibit-6) in respect of rest consideration amount of Rs.4,25,000/-however, the appellants denied to receive the same.

[15] In the said agreement, it was expressed by both the parties that if the appellant try to avoid or abstain from making transfer the property then, the respondent may take shelter of law for making the sale deed for transfer of the said property in favour of the respondent. He has further contended that the appellants have tried to escape from the liability of transfer the said property to the respondent with mala fide intention. In support of his case, Mr. Bhattacharjee, learned senior counsel has placed his reliance on a decision of the Apex Court in Syed Dastagir v. T.R. Gopalakrishna Setty, reported in (1999) 6 SCC 337, wherein the Hon'ble Court has held as under:

"13. It was held in the case of Ramesh Chandra v. Chuni Lal, AIR 1971 SC 1238, that readiness and willingness cannot be treated as a strait- jacket formula. This have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. Finally, we have no hesitation to hold that the pleading as made by the plaintiff not only shows his readiness and willingness to perform his part of obligation under the contract but by tendering total amount shows he has performed his part of the obligation. We also construe such a plea to be a plea of readiness and willingness as required under Section 16 (c). In view of the aforesaid findings we hold that the High Court committed an error by defeating the claim of the plaintiff on the basis of wrong interpretation of his plea in terms of the said Section."

[16] After meticulous discussion, this Court is of the opinion that the purported agreement dated 12.02.2016 relates to the immovable property and that cannot be treated as valid one in the eye of the law in as much as the document on which the plaintiff relies upon is non- testamentary instrument and in no way such unregistered instrument can create right on the part of the plaintiff to claim the suit property and as such the claim of the plaintiff contravenes the provision laid down U/S.17 of the Registration Act.

[17] It is further contended that the respondent never turned up and made payment "in cash" to the appellants on or before 15.04.2016 the balance consideration of Rs. 4,25,000/- (Rupees Four Lakhs Twenty Five Thousand) as promised. It is also contended that the respondent never met the defendants to act upon the promise in performing the purported agreement dated 12.02.2016 and therefore according to the appelants the agreement lost its validity.

[18] In the Agreement for Sale there is specific mention of the fact that the rest consideration amount is to be paid to the appellants "in cash" and hence even if for arguments sake it is believed that the appellants were approached by the respondent to receive the consideration amount in cheque, the same cannot be said to be in consonance with the terms and conditions as per Agreement for Sale.

[19] The suit filed by the respondent is a pre-mature one for 15.05.2016 was the date fixed within which the appellants were to execute registered sale deed in favour of the respondent, however, the respondent filed this suit on 11.05.2016 well before the said date of 15.05.2016 was to expire. Though the respondent has submitted two cheques (Exhibited-5 and 6), however, in the evidence of the respondent nor in the plaint there is any specific averments relating to the attempts by the respondent in respect

of payment of rest consideration amount of Rs. 4,25,000/- to the appellants through cheque. The respondent has submitted two cheques (Exhibit-5 and Exhibit-6) in order to show that the respondent was willing to discharge his part of promise as per Agreement for Sale, however, no evidence has been led by the respondent to prove as to whether the cheques that were sent to the appellants were indeed denied by the appellants.

[20] PW-3 and PW-4 during their cross-examination admitted the fact that they cannot exactly say the date when the respondent went before the appellants for payment of the rest consideration amount, however, as it appears the said witnesses denied the material suggestion put to them by the learned Counsel for the appellants.

[21] Nowhere in the legal notice nor in the pleadings, the respondent has given categorical details of the cheques to say that he was ready with the same. Nowhere the respondent has given the particular date on which date he was ready with cash and the date of denial by the appellant. The said particulars are also missing in the pleadings. The plaintiff/respondent has not deposited the balance sale considerations with the Court at the time of suit before the trial Court. Hence, this Court draws adverse inference against the plaintiff/respondent.

[22] It is a settled legal proposition that as a rule, relief not found on the pleadings should not be granted. Therefore, a decision of a case cannot be based outside the pleadings of the parties. Ordinarily, the reliefs are drawn on the basis of pleadings. Even in some cases, on the basis of pleadings, the court can mould the reliefs. But the foundation of such relief must have its anchor in the pleadings. It is always the creditor who has final call in the matter, unless contrary of law and is provided otherwise by lawful agreement. The citation which is relied upon the learned counsel for

the respondent has no bearing in the present context of the case. Having observed thus, the impugned judgment passed in Title Suit No.43 of 2016 dated 27.01.2021 by the learned Civil Judge, Senior Division, Court No.2, West Tripura Agartala, needs to be interfered with.

[23] In the result, the present appeal stands allowed setting aside the judgment of the Court below with a direction to the appellants to return the money received from the respondent i.e. Rs.1,00,000/- within a period of 45 days from the date of receipt of the copy of this order. As a sequel, miscellaneous applications pending, if any, shall stand closed. [24] Draw the decree accordingly and send down the LCRs thereafter.

JUDGE

A.Ghosh