SARDAR CHARAN SINGH Vs. NARENDRA BISWAS

JUDGEMENT

(1.) Heard Mr. R. Dubey, learned counsel representing the appellant as well as Mr. R.J. Sarma, learned counsel representing the Respondent No. 1/Defendant No. 1.

(2.) Title Suit No. 193/1989 was instituted by the appellant/plaintiff before the Court of the Civil Judge (Civil Division) No. 2, Kamrup, Guwahati for specific performance of the contract for sale. The facts as appearing from the plaint is that some time in the month of November, 1986 the Respondent/Defendant No. 1 i.e. Sardar Charan Singh expressed his intention to the appellant/plaintiff to sell land belonging to him measuring 6 Lechas covered by Dag No. 66 of Kheraj Periodic Patta No. 234(old)/181 (New) situated at Ulubari Town, Block -I, Mouza - Ulubari, Guwahati, together with the four -storied RCC building standing thereupon. The said offer being accepted, an Agreement for Sale was drawn up and executed by and between the parties on 24.11.1986, which apparently was not registered. As part performance of the contract for sale, the appellant/plaintiff paid a sum of Rs. 2,00,000/ - (Rupees Two lakhs) to the Respondent /Defendant No. 1 in advance out of the total contracted consideration of Rs. 10,00,000/ - (Rupees Ten lakhs). The Agreement for Sale indicated the manner of the payment of the sum of Rs. 2,00,000/ -, that is, by cash payment of Rs. 50,000/ - and the balance Rs. 1,50,000/ - by Pay Order dated 22.11.1996 of the Central Bank of India, Dispur Branch, Guwahati. The said Agreement disclosed delivery of possession of the ground floor of the building to the appellant and since the major portion of the ground floor was being occupied by a business concern, namely, M/s Star Refri Home (Assam) as a monthly tenant of the Respondent/Defendant No. 1 and rent having been paid up to 23.11.1986, the Agreement evidenced that the Respondent/Defendant No. 1 would have no claim further in respect of the rent from M/s. Star Refri Home (Assam) and the appellant will be entitled to collect and enjoy monthly rent from the said business concern on and from 24.11.1986. As regards the payment of the balance consideration of Rs. 8,00,000/ -, the terms in the Agreement also disclosed that before execution of the Sale Deed scheduled for 31.11.1987, the contractual obligation of the Respondent/Defendant No. 1 was for delivering the vacant and khas possession of the upper floor of the building i.e. the first, second and third floor to the appellant. Another stipulation in the Agreement was to the effect that since the property in question was mortgaged to the United Bank of India, as such, the Respondent/Defendant No. 1 shall pay the loan amount and obtain No Objection Certificate from the Bank prior to registration of the Sale Deed. In the plaint, the appellant as the plaintiff urged that pursuant to the Agreement for Sale the Defendant No. 1 had also applied before the Deputy Commissioner, Kamrup on 16.05.1988 seeking permission for sale of the suit property. However, despite grant of the permission by the competent authority, the Respondents/Defendant No. 1 neglected to execute the Sale Deed facilitating conveyance of the suit properties to the appellant. Alleging deliberate breach of contract and the intention of the Respondent/Defendant No. 1 to deprive the appellant of its right to enjoy the suit properties by withholding and/or wilfully avoiding discharge of his obligations under the Agreement for Sale, a Legal Notice was issued on 07.07.1989 addressed to the Respondent/Defendant No. 1 demanding of him to execute the Sale Deed by receiving the balance amount of Rs. 8,00,000/ - after obtaining the No Objection Certificate from the United Bank of India. By the said Notice dated 07.07.1989, demand was also made for delivering possession of the first, second and third floor of the building, allowing the Respondent/Defendant No. 1, 30 days time for due compliance. The reply to the said Notice was made by the Respondent /Defendant No. 1 on 02.08.1989 whereby it was indicated that the said Respondent/Defendant No. 1 was not in a position to fulfil the conditions of Clause 6 of the Agreement dated 24.11.1986 as the tenants of the ground floor, first floor, second floor and the third floor of the building had refused to vacate their tenanted premises. It was also stated in the reply that the Agreement dated 24.11.1986 was void, being a Contingent Contract and due to uncertainty the same cannot be enforced specifically. However, the Respondent/Defendant No. 1 indicated that he was ready and willing to refund the advance amount received from the appellant. Considering the stand of the Respondent/Defendant No. 1 the appellant was constrained to institute Title Suit No. 193/1989 for specific performance of the contact for sale dated 24.11.1986 and at the same time stating that the appellant had all along being ready and willing to perform its part of the contract.

(3.) The suit proceeded against the Respondent/Defendant No. 1 and in so far as Defendant Nos. 2, 3 and 4 are concerned, they did not contest the suit. Written statement was filed by the Respondent/Defendant No. 1 as well as by the United Bank of India, Ulubari Branch, Guwahati, which was arrayed as a proforma defendant.