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GAUHATI HIGH COURT
N. Chaudhury, J.
Meghmallar Estates & Services Pvt.
Ltd. & Anr. —Appellants
versus
Ghanashyam Talukdar —Respondent
RFA No.11 of 2015
Decided on 28.7.2015
For the Appellants:Mr. OP Bhati, Mr. VK Chopra, Advocates
For the Respondent:Mr. D Mozumder, Sr. Advocate, Mr. R Sarma, Advocate
IMPORTANT POINT
Trial court considered evidence and arrived at finding that plaintiff not committed any default and that always ready and willing to perform his part of contract, findings of trial court based on materials of record liable to be upheld.
Headnote:Specific Relief Act, 1963 — Section 16(c) — Civil Procedure Code, 1908 — Order VI, Rule 1 & Order VII, Rule 1 — Plaintiff bound himself to make payment as per terms of payment mentioned in agreement — No pleading of defendants in this regard and defendants not adduced evidence to bring on record dates of casting of slabs of building — HELD — Unless and until respective dates of casting of slabs established — Not possible to hold that plaintiff did not make payment within time permitted by agreement — Only after established that plaintiff did not make payment in time — Then only question of taking recourse to penal action under Clause 7 of agreement would arise — Plaintiff made full payment during trial without getting possession of flat — No scope in for taking recourse to penal action of cancellation of agreement. [Para 34]
(ii) Specific Relief Act, 1963 — Section 16(c) — After suit decreed ex-parte at first instance and before setting aside of that decree in course appeal in this court plaintiff deposited Rs. 604800 with executing court in Title Execution — That amount not withdrawn by plaintiff after ex-parte judgment set aside by this court in regular first appeal and fresh trial held by trial court giving opportunity to defendants for adducing evidence — Defendants not withdrawn money but it continues to remain in custody of court — HELD — Once plaintiff deposited money including balance consideration money — He does not have any other liability to discharge under contract. [Para 30]
(iii) Specific Relief Act, 1963 — Section 16(c) — Requirements under — Does not only require that plaintiff must aver and prove that he performed or always ready and willing to perform his part of contract — But he should really perform same even after passing of decree in period stipulated or fixed by court — HELD — Plaintiff performed his part of contract during trial of suit — Obligation of plaintiff under S. 16(c) of SR Act already discharged — Finding of trial court as to readiness and willingness of plaintiff under S. 16(c) of SR Act not incorrect and same upheld. [Para 30]
Result: Appeal dismissed
N. Chaudhury, J.—This is a regular first appeal at the instance of defendants challenging judgment and decree dated 29.08.2014 passed by learned Civil Judge No. 1, Kamrup (M) in Title Suit No. 66/2007 whereby suit of the plaintiff for Specific Performance of Contract was decreed.
2. Ghanashyam Talukdar, as plaintiff, instituted T.S. No. 66/2007 in the Court of learned Civil Judge (Sr. Divn.) No. 1 at Guwahati against Meghmallar Estates & Services Pvt. Ltd. which is a company incorporated under Companies Act, 1956 and its Managing Director, Sri Anup Saikia. Plaintiff pleaded that defendants are apartment builders. He entered into a registered agreement with the defendants on 11.05.2005 vide Deed No. 5009/2005 whereby defendants agreed to sell a three bedroom flat to the plaintiff being Flat No. 202 at the second floor of the complex known as MEGHMALLAR “SANTOOR” situated at Kharguli, Guwahati. Schedule A gives the description of the land on which the complex is situated. Schedule B is the 7th storied complex and Schedule C gives the description of the property proposed to be sold. Plaintiff entered into an agreement to purchase 1409 sq.ft. flat along with proportionate share of the land for a consideration of Rs. 13,80,820/-. Schedule D to the agreement gives the schedule of payment. Plaintiff paid Rs. 9,36,000/- before and at the time of execution of the agreement and was supposed to make payment of the balance sum of Rs. 4,44,820/- afterwards as per the payment schedule. The plaintiff wanted to get this amount by way of housing loan from State Bank of India but as the defendants did not cooperate, the bank returned the loan papers by letter dated 25.01.2007 saying that the loan could not be processed for failure on the part of the defendants to furnish documents. State Bank of India also forwarded a letter dated 03.01.2007 issued by the defendants and addressed to the plaintiff. According to the plaintiff, this letter dated 03.01.2007 was never received by him directly from the defendants at any point of time and that defendants never issued the same to the plaintiff. The plaintiff was all along eager to settle the remaining outstanding dues by availing financial assistance from the State of Bank of India but the same was foiled owing to non-cooperation by the defendants. In paragraph 8 of the plaint it was stated that plaintiff is ready and willing to make payment of the balance sum through housing finance loan and requested the defendants to extend necessary help for this purpose, however, to no avail. Situated thus, plaintiff became compelled to institute the suit for Specific Performance of Contract so as to get the suit property purchased and also for compensation of Rs. 2,00,000/-. Alternatively, plaintiff also prayed for refund of Rs. 9,36,000/- with interest at the rate of 18% per annum in the event the plaintiff is found to be not entitled to a decree of Specific Performance.
3. The defendants appeared and submitted written statement deciding the case of the plaintiff. The defendants also disputed the quantum of balance sum. According to the defendants, plaintiff was irregular in payment of instalments as agreed and defaulted in payment of Rs. 3,55,127/- in addition to a sum of Rs. 3,82,833/- for performance of extra civil work as per the specification given by the plaintiff upto 12.09.2006 and thus plaintiff was due to pay Rs. 7,37,960/- as on 12.09.2006. The defendants denied the allegation of non-cooperation from their side. It is further pleaded that despite various reminders made on 19.11.2005, 14.12.2005, 12.02.2006, 09.02.2006, 23.02.2006, 12.09.2006 and 24.09.2006, the plaintiff did not bother to clear the dues. The defendants, therefore, communicated their intention by letter dated 24.09.2006 to cancel the agreement if the arrear is not cleared within October, 2006. But even thereafter the plaintiff remained silent. Thereafter, by letter dated 03.01.2007, defendants intimated the plaintiff about
