Tripura High Court
Shri Prasanta Bhattacharjee vs Sri Shimul Saha on 19 November, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 10
HIGH COURT OF TRIPURA
AGARTALA
RFA NO.13 OF 2023
Shri Prasanta Bhattacharjee,
Son of Sri Padmanath Bhattacharjee,
Aged about 53 years, Proprietor-cum-Chief,
Hallabol, TV Channel, office at Coloniel
Chowmuhani, Agartala, P.O., Agartala,
Division-Agartala, P.S.- West Agartala,
District-West Tripura, Pin-799001.
-----Appellant(s)
Versus
Sri Shimul Saha,
Son of Late Chitta Ranjan Saha,
Resident of Math Chowmuhani,
College Road, Shibnagar, P.O.-Agartala College,
Sub-Division-Agartala, P.S.- East Agartala,
District-West Tripura, Pin-799004.
-----Respondent(s)
For the Appellant(s) : Mr. S. Lodh, Advocate.
For the Respondent(s) : Mr. S.M. Chakraborty, Sr. Advocate.
Mrs. P. Chakraborty, Advocate.
Date of hearing : 05.11.2024
Date of delivery of
Judgment & Order : 19/11/2024.
Whether fit for reporting : YES.
BEFORE
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
JUDGMENT & ORDER
(T. AMARNATH GOUD, J)
This appeal has been filed under Section 96 of the
Code of Civil Procedure, 1908, challenging the Judgment and
Decree dated 14.03.2023 and 16.03.2023 respectively, passed by
the learned Civil Judge (Senior Division), West Tripura, Agartala,
Court No.1, in Money Suit No. 43 of 2018. The learned Civil Judge
(Senior Division), West Tripura, Agartala, Court No.1 decreed the
suit, directing the defendant-appellant to pay Rs. 41,15,000/- along
with interest at the rate of 8% per annum from the date of the
Agreement, i.e., 03.01.2016, until realization of the entire amount.
2. The facts of the case in brief are that the
respondent herein, as plaintiff, filed the connected suit against the
defendant-appellant, contending inter alia that an unregistered
agreement was executed on 03.06.2016 between the appellant and
the respondent for selling 1.62 acres of the appellant's land,
situated under Khatian Nos. 4067 and 3608, Hal Dag Nos.
6011/11172, 6013/9537, 6014/10665, 6055, 6056, and
6058/10659 of Mouja-Anandanagar, for a consideration of Rs. 90.00
lakhs. The respondent paid Rs. 30.00 lakhs to the appellant at the
time of execution of the agreement. Thereafter, on 05.01.2016, the
respondent again paid Rs.4.00 lakhs in cash as an advance to the
appellant, thus, in total, the respondent paid Rs.40.00 lakhs as
earnest money to the appellant out of the entire consideration
amount of Rs.90.00 lakhs. Subsequently, Sri Dipak Chowdhury
prepared the Sale Deed, and after confirmation from the parties,
the date for the registration of the sale deed was fixed for
01.06.2017. On the fixed date for registration, the respondent came
to the Sub-Registrar's office and issued two cheques, vide No.
00020 dated 31.05.2017 for Rs.16.00 lakhs drawn on HDFC Bank,
Shibnagar, Math Chowmuhani Branch, and Cheque No. 094237
dated 31.05.2017 for Rs.7.00 lakhs drawn on UBI Bank, Baramura
Math Chowmuhani Branch, to the appellant. The respondent told
the appellant to receive the remaining amount in cash during
registration. After receiving the cheques from the respondent, the
appellant left the Sub-Registry office without signing the sale deed,
telling the respondent that he would return in half an hour, but the
appellant did not return. A few days later, the appellant informed
the respondent that the land had already been mortgaged to the
State Bank of India, Agartala Bazaar Branch, and had not been
freed from the mortgage. Subsequently, the appellant expressed his
inability to register the Sale Deed in favor of the respondent.
3. After the subsequent events mentioned in the
plaint, the plaintiff-respondent filed the suit before the Trial Court
for the recovery of Rs. 41,15,000/-. To prove the case, the
respondent produced four witnesses and exhibited six documents,
whereas the appellant's side examined two witnesses but did not
produce any documents. After hearing both parties, the learned
Court below, via the impugned Judgment and Decree dated
14.03.2023 and 16.03.2023, decreed the suit in favor of the
respondent, directing the appellant to pay Rs. 41,15,000/- along
with interest at 8% per annum from the date of the agreement, i.e.,
03.01.2016, until the realization of the entire amount.
4. Aggrieved and dissatisfied with the Judgment and
Decree dated 14.03.2023 and 16.03.2023, passed by the learned
Civil Judge (Senior Division), West Tripura, Agartala, Court No.1, in
Money Suit No.43 of 2018, the defendant-appellant preferred the
instant appeal.
5. Heard Mr. S. Lodh, learned counsel appearing for
the defendant-appellant, as well as Mr. S.M. Chakraborty, learned
Senior Counsel, assisted by Mr. P. Chakraborty, learned counsel
appearing for the plaintiff-respondent.
6. Mr. Lodh, learned counsel appearing for the
defendant-appellant, submits that the suit filed by the respondent
under Section 34 of the Specific Relief Act is not maintainable.
Learned counsel submitted that, upon bare perusal of the plaint, it
is revealed that the suit is based on the Sale Agreement dated
03.06.2016. According to the plaint, the respondent paid Rs.40.00
lakhs in terms of the Agreement dated 03.06.2016, and according
to the respondent, the appellant failed to fulfill his obligation in
terms of the Agreement dated 03.06.2016. Therefore, the suit
ought to have been filed under Section 10 of the Specific Relief Act
instead of Section 34 of the Specific Relief Act. The learned Court
below failed to appreciate this legal position and also failed to
consider the proviso of Section 34 of the Specific Relief Act, and
held that the suit is maintainable. For the aforesaid reasons, the
impugned judgment and decree are liable to be interfered with.
Learned counsel further submits that his contractual right has been
violated, and thus, the Specific Relief Act supports his claim for
forfeiture. Mr. Lodh, learned counsel, further questioned the
readiness and willingness of the respondent-plaintiff to perform his
part of the contract by showing his financial capacity to pay the
consideration amount of Rs. 90 lakhs. Learned counsel also submits
that if the respondent had paid the money on time, the appellant
would have paid the same to the bank to liquidate the loan, and
accordingly, he could have executed the sale deed in favor of the
respondent. The learned Court below committed a serious error in
appreciating that, in terms of the Agreement for Sale dated
03.06.2016, if the respondent failed to pay the remaining
consideration amount within a period of one year from the date of
execution of the Sale Deed, the earnest money should be forfeited.
Stating thus, learned counsel for the defendant-appellant urged this
Court to allow the appeal and set aside the impugned Judgment and
Decree.
To support his argument, learned counsel for the
appellant relied upon Para-13 of the Hon'ble Supreme Court
Judgment reported in AIR 2019 Supreme Court 1178 titled as
Mehboob-Ur-Rehman(Dead) Through Lrs. V. Ahsanul Ghani.
The same is produced herein under:-
"3. It remains trite that the relief of specific performance is not
that of common law remedy but is essentially an exercise in equity.
Therefore, in the Specific Relief Act, 1963, even while providing for
various factors and parameters for specific performance of
contract, the provisions are made regarding the contracts which
are not specifically enforceable as also the persons for or against
whom the contract may be specifically enforced. In this scheme of
the Act, Section 16 thereof provides for personal bars to the relief
of specific performance. Clause (c) of Section 16 with the
explanation thereto, as applicable to the suit in question, had been
as follows:-
"16. Personal bars to relief.- Specific performance of a contract
cannot be enforced in favour of a person-
(a) *** *** ***
(b)*** *** ***
(c) [who fails to aver and prove] 1 that he has performed or has
always been ready and willing to perform the essential terms of the
contract which are to be performed by him, other than terms the
performance of which has been prevented or waived by the
defendant.
Explanation:--For the purpose of clause (c),---
(i) where a contract involves the payment of money, it is not
essential for the plaintiff to actually tender to the defendant or to
deposit in court any money except when so directed by the court;
(ii) the plaintiff [must aver]2 performance of, or readiness and
willingness to perform, the contract according to its true
construction."
7. On the other hand, Mr. S.M. Chakraborty, learned
Senior Counsel, assisted by Ms. P. Chakraborty, learned counsel for
the respondent-plaintiff, submitted that wrong citation or omission
of any provision does not vitiate the order of the Court below. His
client is the victim of suppression of facts because his client was not
aware that the suit property had been mortgaged by the appellant.
Nowhere in the agreement does it state that after his client pays
the money to the appellant, he shall release the property from the
mortgage and then execute the sale deed. This amounts to
suppression of facts. His client had full intent to pay the money as
Rs. 40 lakhs had already been paid in advance, and the remaining
amount would have been paid in cash after the execution of the sale
deed. In fact, on the date fixed for registration, his client went to
the Registry office and issued the two cheques mentioned above in
favor of the appellant, but after receiving the cheques, the appellant
went away and did not return. In fact, the appellant was not in a
position to execute the sale deed because the property was
mortgaged to the Bank.
To support his argument, learned Senior Counsel relied
upon Para-3 of the Hon'ble Supreme Court Judgment reported in
AIR 1985 SC 470 titled as State of Karnataka Vs. Muniyalla.
The same is produced herein under:
"3. Now it is obvious that the Judgment of the High Court is patently
wrong and cannot be sustained and in fact Mr. Kapil Sibbal
appearing on behalf of the respondent, with his usual candour and
frankness, slated that it was difficult for him to support the
Judgment. We may proceed on the basis that the VIth Additional City
Civil and Sessions Judge could try only such Sessions Cases as were
made over to him by the Principal City Civil and Sessions Judge in
exercise of the powers conferred under Section 194 of the Criminal
Procedure Code, though we are not at all sure that, even if the VIth
Addl. City Civil & Sessions Judge tried a Sessions Case which was not
formally made over to him, the trial would be invalid, because in any
event the VIth Addl. City Civil & Sessions Judge would have inherent
jurisdiction to try the Sessions Case. We need not however, go into
that question because we find that there was an order made by the
Principal City Civil & Sessions Judge on 30th January 1981 making
over Sessions Case No. 17/79 to the VIth Addl. City Civil & Sessions
Judge, Bangalore. Undoubtedly this order was purported to be made
by the Principal City Civil and Sessions Judge in exercise of the
powers conferred under Section 409 of the CrPC and this Section did
not confer power on the Principal City Civil and Sessions Judge to
make over Sessions Case No. 17/79 to the VIth Additional City Civil
and Sessions Judge. But it is now well-settled that merely because
an order is purported to be made under a wrong provision of law, it
does not become invalid so long as there is some other provision of
law under which the order could be validly made. Mere recital of a
wrong provision of law does not have the effect of Invalidating an
order which is otherwise within the power of the authority making
it. Here the Principal City Civil and Sessions Judge had power
under Section 194 of the CrPC to make over Sessions Case. No.
17/79 to the VIth Additional City Civil and Sessions Judge and the
order made by him on 30th January 1981 was clearly within his
authority and the only error was that he recited a wrong Section of
the CrPC. The order dated 30th January 1981 made by the Principal
City Civil and Sessions Judge must be read as an order made
under Section 194 of the CrPC in so far as the direction making over
Sessions Case No. 1,7/79 to the VIth Additional City Civil & Sessions
Judge is concerned. We are therefore of the view that Sessions Case
No. 17/79 was validly made over to the VIth Additional City-Civil &
Sessions Judge and he had jurisdiction to try that Sessions Case. The
Judgment of the High Court setting aside the conviction and
sentence recorded against the respondent on the ground that the
VIth Additional City Civil & Sessions Judge has no jurisdiction to try
Sessions Case No. 17/79, must consequently be held to be
erroneous."
8. Heard and perused the evidence on record.
9. It is apparent from the record that the defendant-
landlord did not indicate in the agreement that two of his properties
were mortgaged, one of which is the subject property of this sale
deed. It is also evident from the testimony of P.W.-4, Sri Dipak
Chowdhury, the deed writer, who, in his cross-examination, clearly
indicated that the defendant-landlord had not disclosed or
instructed him regarding the said mortgage.
10. The forfeiture clause of the Deed of Agreement dated
03.06.2016 between the involved parties is as follows:-
" .........If the First party fails to pay the remaining amount
of money(of valuation) left after 'baina' (advance
payment) to the second party, within the stipulated time
then the total amount paid by the first party shall be
forfeited or shall be treated as cancelled or else if the
first party desires to pay.........."
11. In view of the above clause, the learned Counsel for
the appellant-defendant vehemently argued that the amount
already paid by the plaintiff stands forfeited since the balance
amount was not paid, and the sale deed was not executed and
registered.
12. It is an admitted fact that a sum of Rs. 40 lakhs
was received by the defendant-landlord. This Court finds the claim
for forfeiture of Rs.40 lakhs under the forfeiture clause to be
unreasonable. The defendant argues that the Specific Relief Act
supports his right to forfeiture. However, this Court does not accept
the appellant-defendant's case, as the agreement is silent regarding
the mortgage and the fact that the defendant-landlord would have
to release the property from the mortgage before proceeding with
the sale deed. The non-disclosure of this crucial fact, both in the
Statement and the written statement, leads the Court to draw an
adverse inference against the appellant's conduct for suppressing
this vital information regarding the land in question. In any
transaction between parties, fair play and trust are essential
elements. In this case, the appellant-defendant has failed to exhibit
fair play, and trust has been compromised for the reasons stated
above. In the absence of fair play, it is not appropriate for the
appellant to rely on the Specific Relief Act.
13. With the above observations, this appeal is
dismissed, and the impugned Judgment and Decree dated
14.03.2023 and 16.03.2023 are hereby confirmed. As a result, any
stay, if in effect, is vacated. Pending applications, if any, are also
dismissed.
B. PALIT, J T. AMARNATH GOUD, J
suhanjit
RAJKUMAR Digitally signed by
RAJKUMAR SUHANJIT
SUHANJIT SINGHA
Date: 2024.11.19
SINGHA 14:07:18 +05'30'
