5th January,

2026 (AK)

F.A. 443 of 2025

IA No: CAN 1 of 2025

Parimal Sarkar

Vs.

Sri Mukund Hansraj Thacker and others

Mr. Subhrojyoti Mookherjee

Ms. Sharmistha Ghosh

Mr. Amit Ghosh

...for the appellant. Mr. Chayan Gupta Mr. Aditya Kanodia

...for the respondent no.2.

1. The present appeal arises out of the dismissal of a

suit for specific performance of a contract for sale

filed by the plaintiff/appellant.

2. Learned counsel appearing for the

plaintiff/appellant submits that there were certain offer letters on the basis of which the agreement-in- question was entered into between the parties, which were marked as exhibits in the trial court

but not referred to in the impugned judgment.

3. It is argued that despite sufficient proof of the agreement between the parties being produced before the trial court, those were overlooked by the learned Trial Judge while dismissing the suit.

4. Learned counsel further draws the attention of the court to the documents annexed to the present application, which were produced before the trial court as well.

5. Learned counsel appearing for the defendant/respondent no.2, in his usual fairness, submits at the outset that the suit was decreed ex parte against the said defendant.

6. However, it is pointed out that the factum of the offer letters being produced before the trial court and being marked as exhibits does not find place in any of the pleadings before this court.

7. It is submitted that even from the documents produced in the trial court and annexed to the preset stay application, it is abundantly clear that by entering into a subsequent tenancy dated December 8, 1998, which is evidenced by a document of the said date annexed at page-44 of the stay application before this court, the so-called right to have a specific performance of an agreement for sale was given a go-bye/superseded by the appellant.

8. Secondly, learned counsel for the defendant/respondent no.2 submits that the two purported money receipts produced by the plaintiff in the trial court do not tantamount to an agreement for sale.

9. In particular, it is pointed out, no consideration for the sale is mentioned at all in the said documents.

10. Thirdly, a purported offer letter was referred to in the said documents dated July 13, 1998, which was never produced in the trial court, as is apparent from the impugned judgment itself.

11. However, upon considering the submissions of the parties, we are of the opinion that a sufficient triable issue and arguable case has been made out by the appellant to hear the appeal on merits.

12. Insofar as the question of supersession of the right of specific performance is concerned, it is at best a triable issue.

13. We say so because it is doubtful as to whether there is any conflict between the current status of the appellant, which is admitted to be that of a tenant, which persists in any event till a valid deed of transfer of title is executed in favour of the appellant.

14. As such, since the appellant has admittedly been a tenant in respect of the premises, perpetuation of such tenancy till a deed of title is executed in favour of the appellant may not tantamount to waiver of the right of the appellant to have the specific performance of an agreement for sale, which would confer title in respect of the property in favour of the appellant.

15. Thus, the perpetuation of the tenancy rights which were already vested in the appellant till such title deed is executed may not be in conflict with the right of the appellant to have a title deed executed in his favour.

16. Insofar as the offer letter is concerned, a cloud is raised in that regard, since the appellant argues before this court that such documents, despite being a part of the trial court records and having been exhibited, were not considered by the learned trial Judge while dismissing the suit.

17. Irrespective of any such specific ground being taken in the memorandum, a perusal of the records would be necessary for a complete adjudication of the first appeal