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2017 Supreme(Gau) 1032
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
Chittaranjan Das - Appellant
Versus
Kumud Baishya - Respondent
RFA 29 of 2009
Decided On : 13-11-2017
For the Petitioners:Mr. D. Mozumdar, Mr. M. Choudhury, Mr. A. Gogoi, Mr. B. Bhagawati, Ms. J. Kakati. Advocates
For the Respondents: Ms. B. Choudhury, Mr. S. Sahu.
Headnote:
Civil Procedure Code, 1908 – Section 96 – Contract Act – Section 73 – Evidence Act, 1872 – Section 91 and 92 – Tezpur Development Authority – Suit property – Interpretation of Evidence – Inferior Evidence – Case of respondent-plaintiff in brief is that appellant-defendant was sole and absolute owner of suit land which consists of a shop house – Appellant had derived his title through a registered Sale Deed parties hereto entered into an agreement by which appellant agreed to sell said suit property to respondent at a total consideration of agreed amount of sale consideration appellant received a sum of as part consideration agreement provided that on obtaining necessary sale permission for sale of suit property from Tezpur Development Authority and Deputy Commissioner, Sonitpur appellant would execute and register sale deed in respect suit property respondent on receipt of balance consideration – Held, Appellant cannot be permitted to enrich himself by forfeiting the sum of received by way of advance – Appellant did not make any endeavour to prove prevailing market rent and could not prove that he had suffered any financial loss or damages appellant had taken a stand that he had availed loan from two banks said plea was not proved – Appellant failed to prove that he had suffered any loss or damages refusing specific performance of contract – Court is inclined to partly allow alternative prayer made by the respondent – Respondent is held to be entitled to refund advance money from appellant within a period of months from today together with interest payable from agreement till realization – On failure of appellant to refund entire advance amount – Appeal stands partially allowed.
Heard Mr. Dilip Mozumdar, learned Senior Counsel, assisted by Ms. J. Kakati, the learned counsel appearing for the appellant as well as Ms. B. Choudhury and Mr. S. Sahu, the learned counsels appearing for the respondent.
2. This appeal under section 96 CPC is directed against the judgment and decree dated 08.05.2009 passed by the learned Civil Judge, Sonitpur, Tezpur in T.S. No.22/2004.
3. The respondent is the plaintiff in the said Title Suit No.22/2004 which was filed against the appellant- defendant for specific performance of contract and for recovery of possession of the suit land.
4. The case of the respondent-plaintiff in brief is that the appellant-defendant was the sole and absolute owner of the suit land, which consists of a shop house. The appellant had derived his title through a registered Sale Deed dated 06.09.1988. The parties hereto entered into an agreement on 21.03.2002, by which the appellant agreed to sell the said suit property to the respondent at a total consideration of Rs.5,50,000/-. Out of the said agreed amount of sale consideration, the appellant received a sum of Rs.1,00,000/- as part consideration. The agreement provided that on obtaining of the necessary sale permission for sale of the suit property from Tezpur Development Authority and the Deputy Commissioner, Sonitpur, the appellant would execute and register the sale deed in respect of the suit property in favor of the respondent on receipt of the balance consideration.
5. In the plaint it was claimed that on acceptance of the advance amount, the agreement dated 21.03.2002 was a concluded contract for sale. It was stated that despite request on several occasions, the appellant did not execute and register the sale deed in respect of the suit property in favor of the respondent by accepting the balance consideration, but every time the appellant assured the respondent that he would execute and register the sale deed after accepting the balance consideration as soon as the sale permissions are obtained. On 18.02.2004, the respondent had last met the appellant along with his friend and requested him to register the sale deed and on the said occasion also the appellant told the respondent in the presence of his friend that on obtaining permission from the concerned authority he would execute and register the sale deed and requested the respondent to wait for some time. As per the plaint, the appellant by his letter dated 10.03.2004, took a false plea that the respondent had agreed to make all arrangements for obtaining the required permission from the concerned authorities for the sale of the suit property and that he would complete the said sale within one month. It was further stated that actually the appellant had taken the responsibility to obtain necessary sale permission and the respondent never took such responsibilities at any point of time and that after the concluded contract for sale dated 21.03.2002, there was nothing to be finalized. As per plaint, it was stated that in the said notice dated 10.03.2004, the respondent was falsely blamed for making delay and that the respondent was asked to finalize the deal within 15 days from the date of receipt of notice, otherwise the agreement of sale would be treated as canceled and the advance amount of Rs.1,00,000/- (Rupees One lakh only), which was paid by the respondent would be adjusted either in interest cost of the balance amount or his against the rental value of the property. The respondent gave a reply notice dated 25.03.2004 to the appellant by registered post, informing that the appellant had agreed in writing to execute and register the sale deed in favor of the respondent by accepting the balance consideration or obtaining the necessary permissions for sale and that the respondent had never made any arrangement to obtain such permission from the concerned authority and there was that the appellant was estopped from reopening the matter of finalization of sale after t
