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1990 Supreme(Cal) 272
HIGH COURT OF CALCUTTA
Sudhanghsu Sekhar Ganguly & Sibaprasad Rajkhowa, JJ.
Shri Dilip Kumar Sarkar
vs.
Sk. Abdul Maleque & ors.
First Appeal No. 237 of 1987
Decided on : July 10, 1990
Advocate Appeared:
S. K. Mukherjee, N. Banerjee for respondent/opposite party.
A contract for the sale of immovable property cannot be specifically enforced in part, but a purchaser can generally enforce a contract against the vendor, even if the vendor does not have substantially the whole interest which he contracted to sell, by compelling the vendor to convey what he can, with an abatement of the purchase money as compensation for the deficiency.
Headnote:
SPECIFIC PERFORMANCE OF CONTRACT - AGREEMENT FOR SALE - PARTIAL ENFORCEMENT - SHARE OF ONE CO-OWNER NOT AVAILABLE - ENFORCEABILITY OF REMAINING SHARES - SECTION 12(4) SPECIFIC RELIEF ACT, 1963 - INTERPRETATION.
Fact of the Case:
Plaintiff sued for specific performance of an agreement for sale of land, alternatively for refund of advance and realization of compensation on enforcement of charge. The defendants resisted the claim, alleging that the agreement was forged and that they had signed it believing it to be a security deed for a loan. The trial court decreed the suit in part for refund of the earnest money, but refused specific performance. The plaintiff appealed.
Finding of the Court:
The court held that the agreement for sale was genuine and that the defendants had admitted its execution, although they claimed to have thought it was a security deed. The court also found that the existence of the contract between the parties was established, but that defendant no. 5, who was a co-owner of the property, had not participated in the transaction and could not be compelled to execute the sale deed. The court further held that the contract could not be enforced piecemeal, as the entirety of the contract was to be enforced, and that there was nothing on record to show the extent of the share of defendant no. 5 in the suit property.
Issues: Whether the plaintiff was entitled to specific performance of the contract for sale of the suit property.
Ratio Decidendi: The court relied on the following principles in reaching its decision: * Section 12(4) of the Specific Relief Act, 1963, which provides that a contract for the sale of immovable property cannot be specifically enforced in part. * The principle that a contract cannot be enforced against a party who has not substantially the whole interest which he contracted to sell. * The principle that a purchaser can generally enforce a contract for the sale of immovable property against the vendor, even if the vendor does not have substantially the whole interest which he contracted to sell, by compelling the vendor to convey what he can, with an abatement of the purchase money as compensation for the deficiency.
Final Decision: The court allowed the appeal and set aside the impugned judgment and decree. The plaintiff was granted a decree for specific performance of the agreement for sale in respect of the shares of defendant nos. 1 to 4 & 6 in the suit property upon payment of the balance of the consideration money and deducting the proportionate value of the share of defendant no. 5.
S.P. Rajkhowa J.
1. This appeal is directed against the judgment and decree dated 31st January, 1987 passed by Sri M.M, Sen, Assistant District Judge, 1st Court at Alipore in Title Suit No.7 of 1981 whereby the learned judge decreed the plaintiff's suit in part on contest with cost against the defendant nos. 1 to 4 and 6. The suit was decreed for recovery of the Slim of Rs. 22,03300 from the said defendants and the prayer for a decree for specific performance of the contract for sale was refused.
2. The plaintiff filed title suit no. 7 of 1981 for specific performance of the contract for sale dated 15.8.78 against the defendants, alternatively for refund of advance and realisation of compensation on enforcement of charge valued at Rs. 68,000/- only. The plaintiff's case is that the defendants offered to sell and the plaintiff agreed to purchase 275 29/80 acres of Raiyati land in Mouza Undayrajpur, Police Station Barasat, Dist. 24 Parganas, as fully described in the schedule of the plaint, for a consideration of Rs. 66,800/- only. Pursuant to the said agreement a baina-patra was executed on 15.8.78 by the defendant nos. 1 to 4 and 6 on receipt of Rs. 20,000/- only as earnest money and part payment of consideration. The said defendants acted also on behalf of the defendant no, 5 in this regard and undertook to make her join in the deed or deeds. The term of the agreement for sale have been fully described in paragraph 2 of the plaint. It is stated therein inter alia that the plaintiff or his heirs would pay the balance consideration of Rs. 46,800/- within 13.2.79 and the defendants or their heirs shall be bound to execute a registered sale deed of the said property in favour of the plaintiff or his nominee. The defendants hairs made the agreement for sale of the property free from all encumbrance and if on search by the plaintiff any defect in title was found then the defendants and their heirs would refund to the plaintiff or his heirs the earnest money of Rs. 20.000/- and all expenses. It is further averred that defendant no. I had represented that he would seek permission from the competent authority under Urban (Ceiling and Regulation) Act 1976 for selling the suit property in due time. Pursuant to the agreement. the defendants received various amounts on different dates from the plaintiff totalling Rs. 17,000/- upto 2nd March. 1980. The plaintiff pressed for the execution and registration of the sale deed hut the defendants tried to evade the matter. The plaintiff then got the information that the defendants or some of them were trying to sell some portion of the said property agreed to he sold to the plaintiff so he was obliged to publish in newspaper the fact of the said agreement made by the defendants to sell the properly to the plaintiff with a note of caution to all persons intending to purchase. The plaintiff also served pleader's notice on the defendant requesting them to complete the transaction and to execute the deed of sale but the defendants were not coming forward to execute the same. Hence he filed the suit praying for a decree for specific performance of the contract for sale dated 15.8.78. directing the defendants to convey the properly in suit to the plaintiff and register the document on receipt of the balance of consideration and for delivery of the possession of the suit property, alternatively, for a decree for the recovery of the slim of Rs. 37,000/- and a further sum of Rs, 5000/- as damages on enforcement of a charge on t he property under s. 55(a)(b) of the Transfer of Property Act plus interest and cost,
3. The defendants no. 1 to 4 and 6 resisted the claim of plaintiff by filing a joint written statement denying all the material allegations of the plaintiff. To short, the defence case is that the plaintiff and his wife are the owners of the brick business known as "Rock Field (India)". Defendant No. 1 came to know that there was a vacancy in this business and he approached the plaintiff f
