Decided on April 03,2018

Mrinal Kanti Roy Appellant
Sunil Nath Respondents


Kalyan Rai Surana, J. - (1.) Heard Mr. D. Barua, the learned counsel for the appellant as well as Mr. S Dutta, learned Senior Counsel assisted by Mr. Siddhant Dutta, the learned counsel appearing for the respondent.
(2.) As per the memo of appeal, the same is found to be presented under Section 98 of Civil Procedure Code (CPC for short). Obviously, this is a mistake in presentation of appeal. Therefore, for ends of justice, this appeal is treated as one under Section 96 CPC. The respondent herein is the plaintiff in T.S. No. 38 of 2006. As per the plaint the defendant was M/s. Daniel Construction, a registered partnership from having office at Rajendra Complex, Premtola, Silchar, represented by its partner, Sri Mrinal Kanti Roy. However, the present appeal has been preferred by Sri Mrinal Kanti Roy. Although the appellant was not arrayed as one of the defendants in the suit, while filing this appeal, the appellant has not taken any leave of this Court to file the present appeal. Nonetheless, as the appeal is found to have been filed on 13.07.2000, and was admitted for hearing by order dated 27.04.2012, this court is not inclined to non-suit the appellant after about 8 years on this technical ground. Having observed that the appellant was one of the partners of the defendant No.1 firm, the hearing of this appeal has been proceeded with.
(3.) In the suit it was projected by the respondent herein that one Subash Kr. Dev Roy was the owner of the land on which Shibam Apartment situated at Central Road, Silchar was constructed by the defendant firm, namely, M/s. Daniel Construction (hereinafter referred to as "defendant"). By virtue of registered Deed of Agreement No.896 and Power of Attorney No.86, both dated 21.07.2000, the land owner had appointed the defendant as his attorney, and gave them the authority to sell/ transfer the ownership rights of the flats and shops in the said building to the intending purchasers. Accordingly, by an Agreement dated 10.02.2001, the defendant had entered into a contract with the respondent herein for sale of a shop room bearing Room No.5, having a total area of 333 sq. feet, and described in the Schedule appended to the plaint for a sale consideration of Rs.8,65,000/- and it was stated that the defendant had taken an advance of Rs.2,00,000/- from the respondent by issuing a separate money receipt dated 10.02.2001. It was stated that thereafter, pursuant to the said agreement, the respondent had paid a further sum of Rs.1,00,000/- on 23.03.2001 and a further sum of Rs.1,00,000/- on 28.04.2001. However, the defendant did not complete the proposed construction. As the appellant had expressed his inability to complete the construction because of financial crisis, the respondent paid a further sum of Rs.4,65,000/- to the defendant on 22.12.2003, and while receiving the said last payment, the appellant, signed an Agreement dated 22.12.2003, as the partner of the defendant and that by the said writing, the defendant had acknowledged the receipt of a sum of Rs.1,00,000/- paid on 23.03.2001 and on 28.04.2001 and the receipt of a further sum of Rs.4,65,000/- from the respondent on 22.12.2003 and undertook to deliver the possession and to complete the sale within 6 (six) months. However, neither the sale was completed nor possession of the promised space was delivered to the respondent. Hence, the respondent had filed a suit for specific performance of the said contract with a prayer for executing the sale deed, for delivery of property, for formal injunction, cost, etc.;

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