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HIGH COURT OF CALCUTTA
P. C. Mallick
SHIB KUMAR BANERJEE - Appellant
Versus
RASUL BUX - Respondent
Suit 1546 Of 1952
Decided On : AUGUST 22, 1958
SPECIFIC PERFORMANCE - AGREEMENT FOR SALE OF LAND - JURISDICTION - SUIT FOR SPECIFIC PERFORMANCE SIMPLICITER - NO CLAIM FOR POSSESSION - NOT A 'SUIT FOR LAND' - COURT HAS JURISDICTION - AGREEMENT PROVED - BREACH BY DEFENDANT - SPECIFIC PERFORMANCE REFUSED DUE TO INEQUITABLE CIRCUMSTANCES - DECREE FOR REFUND OF CONSIDERATION WITH INTEREST AND COMPENSATION PASSED.
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement for sale of two immovable properties situate outside the jurisdiction of the court. The agreement was evidenced by a receipt which contained an admission by the defendant to have received the entire consideration money in cash and a clear undertaking to execute a conveyance within one year from the date of the receipt. The defendant denied the agreement and the receipt, alleging that the receipt was forged and/or manufactured.
Finding of the Court:
The court found that the agreement for sale was arrived at between the parties, that the entire consideration of Rs. 20,000/- was paid by the plaintiff to the defendant on the date of the agreement, that the plaintiff performed his part of the bargain, and that the defendant committed a breach in not executing a conveyance in favor of the plaintiff.
Issues: 1. Whether the suit is a 'suit for land' and the court has no jurisdiction to entertain it. 2. Whether the agreement for sale was arrived at between the parties. 3. Whether the plaintiff paid the consideration money to the defendant. 4. Whether the defendant granted the receipt embodying the agreement. 5. Whether the defendant committed a breach of the agreement. 6. Whether specific performance should be decreed.
Ratio Decidendi: 1. A suit for specific performance simpliciter, in which all that is claimed is that the vendor do execute a conveyance, is not a 'suit for land' within the meaning of Clause 12 of the Letters Patent and can be entertained by a court even though the land is situate outside its jurisdiction. 2. The court has jurisdiction to entertain the suit as it is a suit for specific performance simpliciter and no decree for possession is claimed. 3. The agreement for sale was proved by the receipt which contained an admission by the defendant to have received the entire consideration money in cash and a clear undertaking to execute a conveyance within one year from the date of the receipt. 4. The defendant committed a breach of the agreement by not executing a conveyance in favor of the plaintiff.
Final Decision: The court refused to decree specific performance due to inequitable circumstances, namely, the defendant entered into the agreement for sale under traffic circumstances, it was a time of great tension when under a sense of insecurity of his life and property the defendant agreed to sell his properties including the bastu, and the price at which the defendant agreed to sell is very much less than its proper price. The court passed a decree for refund of consideration with interest and compensation.
( 1 ) THIS is a suit for specific performance of an agreement for sale of two items of immovable properties, both situate at Baranagar, outside the jurisdiction of this Court. One of the two properties, being premises Nos. 14, 15, 15/1, 15/2 and 15/a Nainan Musalmanpara Lane consist of a very substantial building on land measuring 13 cottas 4 chs. , the other being premises No. 78 Nainan Musalmanpara Lane, consisting of 7 cottas of open land with practically no structure. It is pleaded in the plaint that the agreement was arrived at on 21-3-1950 at Calcutta, within the jurisdiction of this court and the entire consideration money of Rs. 20,000/- was paid in cash. It was agreed that the defendant would execute a proper sale deed within a year. This agreement and the payment of consideration are evidenced by a receipt. It appears from the said reciept that the defendant also agreed to give full possession within the same period of one year. A copy of the receipt is annexed to the plaint. It is alleged that the defendant has failed and neglected to execute the conveyance, though called upon. The decree claimed is a decree for specific performance of the agreement of sale simpliciter and an order on the defendant to execute a conveyance. Delivery of possession is not claimed. There is an alternate claim for a refund of the consideration money with interest at the rate of 6 per cent. per annum and damages assessed at Rs. 3,000/ -.
( 2 ) IN the written statement filed the claim is disputed. The agreement for sate is denied. It is denied that the title deeds were made over to the plaintiff pursuant to the agreement for sale, as alleged in the plaint. So also the payment of consideration money is totally denied. It is alleged that the title deeds were made over by the defendant to one J. N. Sinha for safe custody during the period of communal tension in February, 1950. when the defendant fled from Baranagar to Barrackpore. The receipt is alleged to be a forged and/or manufactured document. The jurisdiction of this court to entertain the suit has been denied and it is prayed that leave under Clause 12 of the Letters Patent, if granted, should be revoked.
( 3 ) ON the pleadings, the following issues were settled :1. Was there any agreement for sale as stated in paragraph 2 of the plaint. 2. Did the plaintiff pay the sum of Rs. 20,000/-to the defendant as alleged in paragraph 3 of the plaint. 3. Was there any agreement to execute the conveyance within a year on 21-3-1953 as
alleged in paragraph 3 of the plaint. 4. Did the defendant grant the receipt embodying as agreement as alleged in paragraph 3 of the plaint. 5. Did the plaintiff suffer any loss as alleged in paragraph 7 of the plaint. 6. Is the document mentioned in paragraph 3 of the plaint forged, as alleged in the Written statement. 7. Did the defendant hand over the title deeds and other movables to J. N. Sinha for safe custody in the circumstances as stated in different clauses of paragraph 5 of the written statement. 8. Has this court jurisdiction to entertain and try this suit. 9. Is the plaintiff entitled to any relief? If so, what reliefs.
( 4 ) THE trial began at the end of April last. After the examination of the plaintiff had progressed to some extent, it became clear that the plaintiff had many documents which would be of assistance to the court in arriving at a decision in this suit and which had not been disclosed. The plaintiff was apparently advised that the receipt was a clinching document which would prove the plaintiff's case and no other document need be disclosed or proved. When it appeared that there were other documents not disclosed, Mr. R. N. Mitter, learned Counsel for the plaintiff, asked for an adjournment to disclose those other documents. I granted the adjournment. Thereafter, a number of other documents were disclosed and when the trial again started at the end of July, these documents were tendered in evidence. Dr. Das appearing
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