Decided on April 15,2009

Abdul Malek Mollah Appellant
Md. Abdul Salam Moral Respondents


SHAH ABU NAYEEM MOMINUR RAHMAN,J. - (1.) Instant civil appeal arises out of the judgment and decree dated 19.08.2001 passed in First Appeal No.164 of 1998 dismissing the appeal by the High Court Division. The First Appeal arises out of the judgment and decree dated 22.02.1998 passed in Title Suit No. 32 of 1994 decreeing the suit for Specific Performance of Contract, by the Subordinate Judge, 1st Court, Gazipur.
(2.) The facts relevant for disposal of this appeal are that the plaintiff filed Title Suit No.32 of 1994 for Specific Performance of Contract in respect of the suit property comprising 17 decimals of land with semi pucca tin shed house standing thereon, which belonged to the defendant No.1, the petitioner herein. The defendant No.1 purchased the suit land by registered kabala dated 18.02.1992 and after making a semi pucca house was living there and while thus owning and possessing the said land, being in need on cash money, disclosed his intention to sell the suit property and the plaintiff offered him Tk. 4,50,000/- as price for the suit property and the defendant, finding the said offer to be the highest offer, accepted the same and on receipt of Tk. 3,80,000/- as earnest money, entered into an agreement for sale of the suit property in favour of the plaintiff on 13.09.1993 and that on receipt of the advance money of Tk. 3,80,000/- out of the fixed consideration amount of Tk. 4,55,000/- the defendant No.1 after execution of the agreement for sale delivered the possession of the suit property to the plaintiff and it was agreed upon that on payment of the balance amount the defendant would execute and register the required sale deed but the defendant was arrested and in such situation, the wife of the defendant requested the plaintiff for money and the plaintiff gave her cheque of Tk. 5,000/- on Sonali Bank, Rajendrapur Cantonment Branch, on 26.01.1993 and thereafter, the defendant No.1 coming out of jail on bail requested for some money to the plaintiff on 13.11.1993 and the plaintiff issued a cheque for Tk. 11,000/- on the said Sonali Bank, Rajendrapur Cantonment Branch and thus the defendant No.1 took Tk. 3,96,000/- in all from the plaintiff against the consideration money fixed for the suit property and thereby there remained a balance of Tk.59,000/-and the defendant was approached on several occasions to execute and register the required sale deed in respect of the suit property on acceptance of the balance of the consideration amount but the defendant avoided and hence the suit. The defendant at the time of execution of the agreement for sale handed over the original title deed of the suit, property to the plaintiff. The plaintiff also caused issuance of legal notice prior to filing of the suit.
(3.) The defendant No.1 contested the suit by filing written statement denying the story of any agreement for sale of the suit property and asserting that the plaintiff was persuaded by the defendant No.1 and his men to go to America for which the defendant No.1 would procure the required visa against payment of the negotiated amount of Tk. 2,20,000/- and that on 11.08.1992 the defendant No.1 in presence of Amir Uddin, Abul Hasem and Jamal Uddin and others handed over Tk. 60,000/- in cash to the plaintiff through Matin and also kept his 43% decimals of land as security against payment of further amount of Tk. 60,000/- within stipulated period, putting his signatures on some blank stamp papers, and with condition that the defendant would pay the balance amount of Tk. 1,00,000/- on furnishing proof of issuance of visa in his name for America and that plaintiff Salam along with others subsequently handed over a photo copy of a visa claiming to be the visa for America issued in favour of the defendant and demanded payment of the balance of Tk. 1,00,000/- to which the defendant wanted to verify the genuineness of the visa from the American Embassy and on enquiry it was found that the visa was a forged document and hence the defendant demanded return of his money and the plaintiff took time and avoided the return of the money taken from the defendant earlier and at one point of time the plaintiff took the defendant to his brother's house at Shantibag and confined him there, and sent a message, written by him under duress, addressing his wife for payment of Tk. 30,000/- disclosing that he is in danger and the defendant's wife on receipt of the letter handed over Tk. 12,000/- in cash to letter bearer and also handed over a table fan, tape recorder for raising fund by sale of those items and the wife was also taken to the place, where the defendant was confined, and that under duress and coercion the plaintiff and his men took his signatures on 11 stamp-papers, of which three were of denomination of Tk.50/-each and the rest are of Tk. 10/- each and the plaintiff with the said stamp papers created an agreement for sale showing the plaintiff as purchaser and the defendant as vendor and mentioning Tk. 3,80,000/- as paid in advance, although no payment was made and that the defendant lodged an F.I.R., registered as Joydebpur P.S. Case No.17 (11) 93 under Sections 406 and 420 of the Penal Code and during investigation three stamp papers were recovered from the house of Humayun and that the defendant neither received Tk. 3,80,000/- as earnest money as claimed nor did enter into any contract for sale of the suit property to the plaintiff. The trial Court framed 5 issues namely, 1. Is the suit maintainable in its present form? 2. Is the suit barred by limitation? 3. Is the suit properly valued and the plaint stamped properly? ;

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