2006 Supreme(Cal) 653

High Court Of Calcutta
Kalyan Jyoti Sengupta And Sanjib Banerjee, JJ.
HARENDRA NATH GHOSE - Appellant
Versus
UNION OF INDIA - Respondent
F. A. T. 1219 Of 2002
Decided On : 09/27/2006

A suit for recovery of excess consideration amount for the sale of land is not maintainable if the sale was completed upon negotiation between the parties and by private deal and both the parties viz. the purchaser and the vendors agreed to and did accept the valuation fixed by the District Collector to whom the plaintiff referred the price.

Headnote:

CONTRACT - SALE - CONSIDERATION - EXCESSIVE CONSIDERATION - MONEY DECREE - SUIT FOR RECOVERY OF - MAINTAINABILITY - TRANSFER OF PROPERTY ACT, 1882, SECTION 55 - CONTRACT ACT, 1872, SECTION 25 - Held, that the suit for recovery of excess consideration amount for the sale of land is not maintainable as the sale was completed upon negotiation between the parties and by private deal and both the parties viz. the purchaser and the vendors agreed to and did accept the valuation fixed by the District Collector to whom the plaintiff referred the price.

Fact of the Case:

The Union of India, through its Divisional Organizer, Special Service Bureau, South Bengal Division, Calcutta, Group Centre at Sarat Pally, filed a suit against the appellants and other defendants for the recovery of the excess consideration amount paid for the purchase of land. The land was purchased by the plaintiff for setting up its own headquarters. The price of the land was fixed by the District Collector, Nadia, at the request of the plaintiff. The plaintiff, after having been satisfied with everything regarding valuation, title, nature and character of the land, sent the proposal for purchase of the land by the mode of private deal and negotiation for sanction and approval of the higher authority. The Cabinet secretary duly granted sanction for purchase of the land at a price which had been agreed upon by the plaintiff as well as the vendors. Thereafter, by and under two registered deeds of conveyance, the appellants and the proforma respondents duly sold and the plaintiff purchased the said plots of land for an aggregate sum of Rs. 74,28,607/-. After the said deal was completed the possession of the land had been taken and the plaintiff started foundation works on the said plots of land. Upto this period there was no dispute or difficulty. After the aforesaid transactions having been closed, the plaintiff discovered a news item published in February, 1983 in a local daily viz. 'sandhya Pratibedan and a Bengali daily 'dainik Bartaman' that the sold plots of land were purchased at an abnormally high price. Having seen these news items, the then Collector passed an order for making fresh valuation of the said plots of land which had already been conveyed. While doing so a review of the category of entire land was made. A review of the valuation of the suit properties was also made by the joint inspection made by the officials of the District Collectorate and also the plaintiff. On such review it was found that the valuation of the land would be rs. 59,63,4717- in lieu of Rs. 89,86,325/- as per categorization made later. This review of valuation was intimated by the Special Land Acquisition Officer to the plaintiff. The plaintiff thereafter charged the Collector and his officials that because of the negligence in making appropriate valuation, rather making erroneous valuation, the plaintiff has suffered pecuniary loss of Rs. 23,48,988/-. The plaintiff made a request to the Collector to take steps for recovery of the excess amount from the appellants and the proforma defendants, before filing the suit.

Finding of the Court:

The Court held that the suit for recovery of excess consideration amount for the sale of land is not maintainable as the sale was completed upon negotiation between the parties and by private deal and both the parties viz. the purchaser and the vendors agreed to and did accept the valuation fixed by the District Collector to whom the plaintiff referred the price. The Court further held that the plaintiff cannot be allowed to approbate and reprobate just because it is the Government litigant. The Court also held that the suit was filed with knowledge that it could never succeed and that there is a stench of something being amiss.

Issues: 1. Whether the suit for recovery of excess consideration amount for the sale of land is maintainable? 2. Whether the plaintiff can be allowed to approbate and reprobate just because it is the Government litigant?

Ratio Decidendi: 1. A suit for recovery of excess consideration amount for the sale of land is not maintainable if the sale was completed upon negotiation between the parties and by private deal and both the parties viz. the purchaser and the vendors agreed to and did accept the valuation fixed by the District Collector to whom the plaintiff referred the price. 2. The plaintiff cannot be allowed to approbate and reprobate just because it is the Government litigant.

Final Decision: The appeal was allowed and the suit was dismissed with exemplary costs assessed at Rs. 30,000/- to be paid by the plaintiff.