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IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
M/s Allied Enterprises - Appellant
Versus
Rekha Basu And Others - Respondents
First Appeal No. 235 of 2014
Decided On : 14-01-2020
Specific Performance - Sale of Immovable Property - Specific Relief Act, 1963 - Section 12
Fact of the Case:
The appellant filed a suit for specific performance of a contract for the sale of immovable property. The Trial Court rejected the claim for specific performance but decreed the suit for the refund of the earnest money. The appellant appealed primarily on the refusal to pass a decree for specific performance.
Finding of the Court:
The Court found that there was a valid agreement for sale executed by the respondent no.1 as constituted attorney of the respondent nos. 2 and 3. The Trial Court's refusal to grant relief for specific performance was held to be unwarranted and beyond the scope of the issues involved.
Issues: The main issue was whether there was a valid agreement for sale of the suit property and whether specific performance should be granted.
Ratio Decidendi: The Court held that the respondent no.1 was duly authorized by the respondent nos. 2 and 3 to act as constituted attorney for and on their behalf, and therefore, the agreement for sale was valid. The Court also found that the appellant failed to prove any agreement with the respondent nos. 4 and 5 for the sale of the suit property.
Final Decision: The Court granted a decree for specific performance of the agreement for sale against the respondent nos. 1, 2, and 3, directing them to execute the sale deed in favor of the appellant. The decree for specific performance against the respondent nos. 4 and 5 was refused. The appeal succeeded, and no order as to costs was made.
JUDGMENT
Harish Tandon, J. - The instant appeal is directed against a judgment and decree dated 8th May, 2014 passed by the Learned Civil Judge, Senior Division, 1st Court, Barasat in Title Suit No. 269 of 1999.
2. A suit for specific performance of a contract for sale of the immovable property, as described in Schedule A to the plaint, was instituted by the appellant against the respondent in the Trial Court. It is specifically stated in the plaint that by virtue of an agreement dated 12th August, 1996, the defendants agreed to sale the said property at a total consideration of Rs. 13,16,000/- and a sum of Rs. 8,00,000/- was advanced to them as earnest money. It is further stated that the defendants agreed to sell the said property at Rs. 20,000/- per cottah and since the property also comprised of a tank, a fixed price of Rs. 1,00,000/- was agreed upon. The earnest money of Rs. 8,00,000/- was paid partly in cash and partly by cheque. It is the specific case of the plaintiff/appellant that a sum of Rs. 4,00,000/- was paid by three account payee cheques in favour of the respondent nos. 1, 2 and 3 and the break-up given was that a cheque for Rs.1,00,000/- was issued to the respondent no.1, a cheque for Rs. 1,00,000/- was issued in favour of the respondent no.2 and a cheque for Rs.2,00,000/- was issued in favour of the respondent no.3 . The remaining amount of Rs.4,00,000/- was paid in cash which was duly acknowledged by issuing receipts.
3. It is further stated that the defendants previously sold a piece and parcel of land measuring 2 bighas and 2 cottahs to the plaintiff/appellant by executing and registering a deed of sale on 9th October, 1994, which is almost 40% of the total land owned by them. According to the plaintiff/appellant, though no formal deed of agreement was entered into but it would be evident from the conduct of the defendants and also from the money receipts executed in its favour that, a conclusive contract was entered into and therefore, the plaintiff is entitled to specific performance of such contract. It is expressly stated in the plaint that the entire property is a part of the property which was already sold to the plaintiff/appellant and he was in occupation as tenant upon payment of rent at Rs.3,000/- per month and the plaintiff was all along paying the municipal rates and taxes applicable thereto.
4. As per the plaintiff, after such agreement was entered into, they have taken several steps by removing the care-taker and spending money in order to preserve and protect the said property. Though the plaintiff was all along ready and willing to perform his obligations under the said agreement but subsequently, the defendants refused to execute and register the deed of sale and therefore, the present suit has been filed.The plaint was thereafter amended and an alternative prayer for refund of the earnest money was also incorporated therein.
5. The respondent nos. 1, 2 and 3 jointly filed the written statement with an intent to contest the said suit. A specific allegation has been made therein that there was no agreement ever entered into for sale of the suit property. However, the said amount of Rs.8,00,000/- was taken as loan since the aforesaid defendants was undergoing financial crisis at the relevant point of time.
6. However, the respondent nos. 4 and 5 who are the daughters of the respondent no.1 separately filed the written statement denying the execution of the agreement for sale. It is specifically stated that they had never entered into any agreement for sale of the property nor did they receive the amount allegedly advanced by the plaintiff as earnest money.
7. Such being the pleadings, the parties went on trial and the defendant no.1 as constituted attorney of the defendant nos.2 and 3 deposed as first witness. The respondent no.4 deposed as second witness on behalf of the other defendant.
8. The Trial Court rejected the claim of specific performance of the said agreement but decreed the suit
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