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PATNA HIGH COURT
Imam and B.P.Jamuar JJ.
Zakir Sadagar
Versus
Dolegobind Ghose
Appeal from Original Decree No. 237 of 1952 ;
Decided On : DECEMBER 21, 1954
SPECIFIC PERFORMANCE - CONTRACT OF SALE - EXPRESS STIPULATION - PAYMENT OF CONSIDERATION MONEY - REGISTRATION - ABANDONMENT OF CONTRACT - DELAY IN FILING SUIT - LIMITATION.
Fact of the Case:
Plaintiff and defendant 1 entered into an agreement to sell certain holdings for Rs. 17,999/-. Plaintiff paid Rs. 33778/- for purchase of stamp paper for the sale deed, Rs. 70/- for registration and Rs. 550/- as advance. The sale deed was executed but could not be registered as the Sub-Registrar was out on commission. Plaintiff paid a further Rs. 1000/- to defendant 1 through Sheo Prasad Marwari. Plaintiff filed a suit for specific performance. Defendant 1 contended that there was an express stipulation that the entire consideration money would be paid before execution and registration and that the plaintiff failed to pay the same. Defendants 2, 3 and 4, who purchased the property from defendant 1, contended that they were bona fide purchasers for value without notice of the agreement between the plaintiff and defendant 1. The Subordinate Judge dismissed the suit.
Finding of the Court:
The Court found that there was an agreement to sell between the plaintiff and defendant 1 and that the sale deed was executed. The Court also found that the plaintiff paid the sums of Rs. 33778/-, Rs. 70/- and Rs. 550/- towards the purchase of stamp paper, registration and consideration money, respectively. The Court further found that the plaintiff paid a further Rs. 1000/- to defendant 1 through Sheo Prasad Marwari. The Court held that there was no express stipulation that the entire consideration money would be paid before execution and registration. The Court also held that defendants 2, 3 and 4 had notice of the agreement between the plaintiff and defendant 1. The Court further held that the plaintiff did not abandon the contract and that the delay in filing the suit was not inordinate.
Issues: 1. Whether there was an express stipulation that the entire consideration money would be paid before execution and registration? 2. Whether defendants 2, 3 and 4 had notice of the agreement between the plaintiff and defendant 1? 3. Whether the plaintiff abandoned the contract? 4. Whether the delay in filing the suit was inordinate?
Ratio Decidendi: 1. The Court held that there was no express stipulation that the entire consideration money would be paid before execution and registration. The Court relied on the following factors: a. The evidence of the plaintiff and the attesting witnesses that there was no such stipulation. b. The fact that defendant 1 accepted Rs. 550/- towards the consideration money even though the sale deed could not be registered. c. The fact that defendant 1 did not examine himself or Ram Sunder Kundu, the scribe of the sale deed, to prove the existence of such a stipulation. 2. The Court held that defendants 2, 3 and 4 had notice of the agreement between the plaintiff and defendant 1. The Court relied on the following factors: a. The evidence of Gobindram Kataruka that he had heard defendant 1 saying that unless the entire consideration was paid he would neither execute the sale deed nor get it registered. b. The fact that defendants 2, 3 and 4 purchased the property from defendant 1 at a price which was lower than the price agreed upon between the plaintiff and defendant 1. 3. The Court held that the plaintiff did not abandon the contract. The Court relied on the following factors: a. The plaintiff sent a notice to Ram Sunder Kundu to return the sale deed and the money paid for the purchase of stamp paper and registration. b. The plaintiff filed a criminal case against defendant 1 and Ram Sunder Kundu for cheating. c. The plaintiff filed a written statement in a proceeding under the House Rent Control Act asserting his ownership of the property. 4. The Court held that the delay in filing the suit was not inordinate. The Court relied on the fact that the plaintiff was prosecuting defendant 1 and Ram Sunder Kundu for cheating and was also resisting eviction.
Final Decision: The Court allowed the appeal, set aside the decision of the Subordinate Judge and directed that defendants 1 to 4 do execute and register a sale deed with respect to the properties in suit in favour of the plaintiff on his paying the sum of Rs. 17,449/- as the consideration money for the same.
Imam, J.
1. In this appeal the plaintiff appeals against the decision of the Subordinate Judge of Purulia dismissing his suit for specific performance. His case was that there was an agreement to sell certain holdings between him and Dolegobind Ghose, defendant 1, for the sum of Rs. 17,999/-. This price was settled on 10-3-1948, and in pursuance of this agreement a sum of Rs. 33778/- was paid to de-fendant 1 for purchase of the requisite stamp paper for the drawing up of a sale-deed. Defendant 1 handed over the sum of Rs. 337/8/- to Ram Sun-dar Kundu, a deed-writer of Purulia, who was to purchase the stamp paper from the local treasury.
The stamp paper was accordingly purchased and a sale-deed was actually written out-and executed. After execution defendant 1 demanded the cost of registration from the plaintiff who handed over to Ram Sundar Kundu the sum of Rs. 70/-for that purpose. All this happened on 10-3-48. Thereafter on the same day the parties went to the Registration office. Defendant 1 and Ram Sundar Kundu went inside the office. The sale-deed, however, could not be registered as the Sub-Registrar was going out on commission. Defendant 1, however, was requiring money as he had to attend some marriage ceremony in his family at Calcutta. Accordingly he asked the plaintiff to give him some money in advance and the plaintiff paid defendant 1 the sum of Rs. 550.00 that day. The sale-deed, however, remained in the custody of Ram Sundar Kundu.
The plaintiff met defendant 1 thereafter at Purulia and asked him to register the sale-deed, but the latter avoided registration, whereupon the plaintiff sent a registered notice to Ram Sundar Kundu to return the sale-deed, to which no reply was sent. The plaintiff then filed a criminal case against defendant 1 and Ram Sundar Kundu for cheating under Sec. 420, Penal Code. Thereafter it transpired that defendant 1 had sold the properties which he had agreed to sell to the plaintiff to defendant 2 by one sale-deed and to defendants 3 and 4 by another sale-deed both dated 19-3-1948.
The plaintiff also alleged that after the execution of the sale-deed by defendant 1 the latter approached him for an advance of Rs. 1000.00 and the plaintiff in good faith approached Sheo Prasad Marwari (P. W. 4), as he himself had not the money at the time, to advance the said sum to defendant 1, which was done, defendant 1 executing a handnote in favour of Sheo Prasad Marwari. The plaintiff had all along been willing to pay the consideration money after registration of the sale-deed and to close the transaction by registration of the deed.
He never expressed his unwillingness to pay the consideration money or his inability to do so. The entire consideration money was not paid on the date of execution as the deed was not registered on that date. Defendants 2, 3 and 4 had purchased the property which had been agreed to be sold to the plaintiff with full knowledge of the agreement between the plaintiff and defendant 1 and their purchase was subject to the prior agreement with the plaintiff.
2. Defendant 1 filed a written statement and his case was that he was the owner of the property mentioned in the plaint. He admitted that there was an agreement of sale with respect to the said properties. His case, however, was that at the time of the agreement there was a definite stipulation between him and the plaintiff that the latter would pay to him the full consideration before execution and . registration and that this stipulation was a condition precedent.
It was clearly understood that until the entire consideration was paid defendant 1 would be under no obligation to execute the deed or to register the same. The plaintiff gave a solemn as-surance that he would pay the full consideration before the execution of the deed and on that assurance the sale-deed was written out on stamp paper. He demanded the consideration agreed upon, but as the plaintiff did not pay it and wanted to put off payment after execut
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