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2017 Supreme(Tri) 378
IN THE HIGH COURT OF TRIPURA, AGARTALA
T. VAIPHEI, J.
Shri Asutosh Dey, Son of Late Himangshu Bikash Dey – Appellant
Vs.
Shri Meghnad Saha, S/o. Late Rajmohan Saha & Ors. – Respondents
RSA NO.48 of 2013
Decided On : 24-10-2017
For the Appellant :Mr. D. Chakraborty, Sr. Advocate, Ms. S. Deb Gupta, Advocate
For the Respondents:Mr. S. M. Chakraborty, Sr. Advocate, Mr. D.K. Biswas, Advocate
Enforceability of oral agreements for the sale of property and the limitations of invoking Section 53-A of the T.P. Act.
Headnote:
T.P. Act - Specific Performance of Contract - Section 53-A - Summary
Fact of the Case:
The plaintiff claimed specific performance of an oral agreement for the sale of a room. The defendant No. 1 admitted the oral agreement but later entered into a written agreement with defendant No. 2 for the sale of the same room.
Finding of the Court:
The trial court decreed the suit in favor of the plaintiff, which was affirmed in the first appeal. The second appellate court dismissed the appeal, upholding the decree for specific performance of the oral agreement.
Issues: Validity of oral agreement, enforceability of oral contract, suppression of oral contract, possession of the suit property, entitlement to decree and relief
Ratio Decidendi: The court found that the oral agreement for sale was enforceable, and the subsequent written agreement with defendant No. 2 did not negate the validity of the oral agreement. The court also held that the defendant No. 2 could not invoke the protection of Section 53-A of the T.P. Act as the written agreement was not registered.
Final Decision: The appeal was dismissed, affirming the decree for specific performance of the oral agreement and restraining the defendant No. 1 from executing any sale deed to a third party.
This second appeal is directed against the appellate decree dated 17-6-2013 passed by the learned Additional District Judge, Court No. 5, West Tripura, Agartala in Title Appeal No. 46 of 2012 affirming the original decree dated 27-8-2012 passed by the learned Civil Judge (Sr. Division), Court No. 1, Agartala in Title Suit No. 87 of 2008 decreeing the suit.
2. While admitting the appeal, this Court formulated the following questions as substantial questions of law for hearing:
“1. Whether the judgment and decree passed by the First Appellate Court suffers from perversity?
2. Whether the provisions embodied in Section 53-A of the T.P. Act has been wrongly construed and applied by the Courts below?”
3. Before proceeding further, the facts giving rise to this appeal may be briefly noticed. The appellant is the defendant No. 2 in the suit, while the respondent No. 1 and the respondent No. 2 are the plaintiff and the defendant No. 1 respectively. For simplification, I will refer to the appellant as the defendant No. 2 and the respondent No. 1 and 2 as the plaintiff and Defendant No. 2 respectively. According to the plaintiff (Meghnad Saha), he is the elder brother of the defendant No. 1, who offered to sell to him one of the rooms of his building situate at Sakuntala Road Extension, Agartala, West Tripura as he was badly in need of money. On getting this offer, the plaintiff consulted his other brothers. On 24-3-2008, the defendant No. 1 was called to the hut of one Jitendra Chandra Saha, who is one of the brothers, in the presence of his two other brothers and in that meeting, it was agreed that the plaintiff would purchase the suit room from the defendant No. 1 for a price of Rs.5,00,000/- and that 10% of the consideration money was to be paid by the plaintiff as earnest money (advance) for the sale. On receiving the earnest money of Rs.50,000/- from the plaintiff, the defendant No. 1 informed the plaintiff that the balance amount of Rs.4,50,000/- might be paid to him within a period of one year as the suit room was then under the occupation of a tenant, namely, ANC Trader, and he would execute a registered sale deed in his favour after the said tenant vacated the suit room.
4. The plaintiff, in good faith, accepted the verbal offer of sale made by the defendant No. 1 in the presence of their other brothers. However, on 24- 9-2008, the plaintiff, much to his surprise, came across a notice published in Dainik Sambad declaring therein that the defendant No. 2 had agreed to purchase the suit room from the defendant No. 1 and, as such, any person objecting it might inform him. The plaintiff, therefore, sent a notice through his advocate on 29-9-2008 to the defendant No. 1 with a copy to the defendant No. 2 and others indicating therein the oral agreement dated 24- 3-2008 made by him with the defendant No. 1 as well as payment of Rs.50,000/- made by him to the former for the purchase of the suit room. The defendant No. 1, however, in his reply dated 3-10-2008 disputed the contents of the said notice dated 29-9-2008 whereupon the plaintiff approached him on 7-10-2008 and reminded him about the receipt by him of the earnest money of Rs.50,000/- from him (plaintiff) for the purchase of suit room. The defendant No. 1 refused to oblige the plaintiff. On the contrary, on 12-11-2008, the defendant No. 1 met the plaintiff at his residential hut, apprised him that he had agreed to sell the suit room to the defendant No. 2 for the price of Rs.7,50,000/- and was, therefore, in no mood to sell the same to him at a lower price. Aggrieved by this, the plaintiff instituted the suit in question before the learned Civil Judge (Senior Division), Court No. 1, Agartala against the defendant No. 1 for specific performance of the agreement made on 24-3-2008 by and between them for the sale of the suit room, for registering a sale deed in his favour and for issuing a perpetual injunction to restrain him from selling the suit room to a third part
