2017 Supreme(Cal) 454

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SAHIDULLAH MUNSHI, J.
Shyama Enclave Pvt. Ltd. - Plaintiff
Versus
Sanjib Kr. Roy & Others - Defendants
CS No. 262 of 2001
Decided On : 29-06-2017

Headnote:

Plaintiff filed a suit for specific performance of contract for sale of property. Defendant contested the suit on the grounds that the agreements were unregistered, the property was mortgaged with the defendants, the plaintiff failed to perform its obligation under the agreements, and the plaintiff was not ready and willing to complete the sale. The court held that the plaintiff was entitled to a decree for specific performance of the agreements, subject to payment of the total consideration money paid by the defendants to the original defendants together with interest at 9% per annum from the date of purchase by the defendants until the date of reconveyance.

Fact of the Case:

Plaintiff and defendants entered into an agreement for sale of property. Plaintiff paid a sum of Rs.8 Lakh and odd to the defendants. The property was mortgaged with the defendants. Plaintiff failed to perform its obligation under the agreements. Plaintiff was not ready and willing to complete the sale. Defendants entered into an agreement for sale with the defendant no.2(a) on 16th January, 2002. The defendant no.2(a) paid the entire consideration of Rs.95 Lakh in terms of the agreement dated 16th January, 2002 and 13th April, 2002. Such payment of Rs.95 Lakh has been made to the defendants on the instruction of the defendants.

Finding of the Court:

The agreements in question are unregistered agreements. The properties were lying mortgaged with the defendants in January, 2000, therefore, the agreement could not have been executed in January, 2000 as the property was not free from encumbrances. It is false that the plaintiff made payment of Rs.8 Lakh and odd to the defendant nos.1 and 2. By a letter dated 27th December, 1999 defendant nos.3 and 4 permitted defendant nos.1 and 2 to sell the property in order to raise funds for repayment of the dues of Lal Chand Roy and Company Private Limited and, therefore, there was no impediment for the plaintiff to complete the purchase of the said premises in terms of the said purported agreements dated 22nd January, 2000 and 22nd February, 2000. The entire first floor of the suit property was in possession and control of the defendant nos.1 and 2. The entire space on the second floor of the suit property is in possession and control of the defendant nos.2 (h), (i), (j), (k), (l), (m), (n), (o), (p), (zii), (ziii), (ziv) and (zv), by virtue of evidence executed in their favour by defendant nos.1 and 2. Admittedly, defendant nos.1 and 2 obtained permission from defendant nos.3 and 4 to sell the said property in order to raise funds for repayment of the loans availed from Lal Chand Roy and Company Private Limited. The plaintiff failed to perform its obligation under the purported agreements for sale. That apart, in an application field in the suit an order was passed on 28th September, 2001 wherefrom it appears that the plaintiff had specifically instructed its banker not to honour cheques issued by it to the defendants. The plaintiff suppressed such fact in the plaint and, accordingly, it is contended that the plaintiff is not entitled to any equitable relief. The plaintiff was not ready and willing to complete the sale. The defendant nos.1 and 2 entered into agreement for sale with the defendant no. 2(a) on 16th January, 2002 under which the defendant nos.1 and 2 agreed to sell the said property to the defendant no.2(a) or his nominees at and for a consideration of Rs.95 Lakh.

Issues: Is the plaintiff entitled to a decree for specific performance of the agreements dated 22nd January, 2000 and 22nd February, 2000? Is the plaintiff entitled to refund of the sum of Rs.8,49,722/- (Rupees Eight Lakh Forty Nine Thousand Seven Hundred Twenty Two) only, with interest at the rate of 24% per annum; in the alternative to specific performance? Is the plaintiff entitled to a decree for a sum of Rs.3.20 Crore as damages; in the alternative to specific performance? Was the suit property given as collateral security by the predecessor-in-interest of the defendant no.1 to the defendant nos.3 and 4? Has possession of the second floor and a portion of the third floor been handed over to the plaintiff for part performance of the agreement? Whether any relief can be claimed against the defendant nos. 2(a) to 2(bxi) and if so, to what extent? Whether the transfer made in favour of the defendant nos. 2(1) to 2(zx) should be set aside, delivered up and cancelled? To what other reliefs, if any, is the plaintiff entitled to?

Ratio Decidendi: Once a document has been admitted in evidence, it is not open either to the parties or to the Court itself or to a Court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. The plaintiff is entitled to get the benefit of Section 36 of the Stamp Act to the effect that where an instrument had been admitted in evidence it cannot be called in question at any stage of the suit or proceeding on the ground that the instrument has not been duly stamped. The argument advanced by Mr. Thakkar that the transaction is hit by the principle of lis-pendens, is also not much help to him, rather, the plaintiff gets the benefit from such doctrine simply because the original defendants made the conveyance in favour of Mr. Thakkar’s client. The sale which has been caused by the original defendants in favour of the pendentelite purchasers are bound by the result of the suit and since I have held that the plaintiff is entitled to a decree, such sale has got no value in the eye of law and the purchasers have acquired no title out of those documents. Therefore, even if the sale deeds are not brought on record and no prayer for cancellation of the deeds has been specifically made in the plaint, the plaintiff is entitled to the cancellation of such deeds of transfer pendentelite as a relief consequential to the main reliefs prayed for in the suit.

Final Decision: The suit be decreed on contest against defendant nos. 2(zxvii), 2(zxviii) and 2(zxix) on contest and ex parte against the rests. The defendant nos. 2(zxvii), 2(zxviii) and 2(zxix) to make a reconveyance of the suit property in favour of the plaintiff subject to payment by the plaintiff of the total consideration money paid by those defendants to the original defendants together therewith a sum equivalent to a total amount of simple interest @ 9% per annum to be calculated on and from the date when the property was purchased by the defendant nos. 2(zxvii), 2(zxviii) and 2(zxix) till such time reconveyance is made. The plaintiff shall make such payment through Pay Order or by Demand Draft in the name of individual defendant/purchasers. Plaintiff shall also bear all other charges for getting the deed of re-conveyance registered in his favour. The plaintiff is entitled to get such Deed of re-conveyance registered by defendant nos. 2(zxvii), 2(zxviii) and 2(zxix) subject to payment of the said sum to the said defendants (purchasers from original defendants) as indicated hereinabove within a period of 3 (three) months from the date of the decree being drawn up and completed and communicated to the said defendants, failing which the plaintiff will be at liberty to put the decree in execution.