- (1.) THIS first appeal is at the instance of the defendants in a suit for specific performance of contract and is directed against the judgment and decree dated 26th February, 2004 passed by the learned Civil Judge, Senior Division, 2nd court, Hooghly in Title Suit No. 4 of 2000 thereby granting a decree for specific performance of contract of sale of the immovable property.
(2.) THE case made out by the plaintiff/respondent may be summed up thus: (a) The suit property originally belonged to one Prabir Banerjee, the husband of the defendant no. 1 and the father of the defendant nos. 2 and 3, who agreed to sell the suit property, as mentioned in 'a' schedule, to the plaintiff at the price of Rs. 2,50,000/ -. A deed of agreement for sale was prepared and executed by the said Prabir Banerjee on 1st October 1997 and the same was presented before a Notary Public at Serampore on 3rd october, 1997 by the said Prabir Banerjee. On 1st October, 1997, Prabir banerjee received a sum of Rs. 15,000/- as part of the consideration money and subsequently, received a further sum of Rs. 6,000/- from the plaintiff on 15th December, 1997 and acknowledged the receipt of the said amount by writing on the reverse side of the stamp paper of that agreement. (b) Thereafter, it was settled between the parties that the deed of agreement for sale of the suit property would be registered by paying full non-judicial stamp paper according to the existing law and it was further stipulated that within six months from the date of execution and registration of the said deed, Prabir Banerjee would vacate the property and would not get any further time for execution and registration of the sale-deed. (c) Consequently, the predecessor-in-interest of the defendants executed and registered a deed of agreement for sale of the suit property in favour of the plaintiff, which was registered at Serampore Additional Sub-Registry Office on 5th January, 1998. That deed of agreement for sale was written at his instruction in the presence of his wife, namely, Smt. Chayanika Banerjee and his friend Manosh Kumar Ghosh who were all along present at the time of negotiation of the sale between the plaintiff and Prabir Banerjee. (d) The plaintiff bore the cost of purchasing the stamp paper of Rs. 12,510/-and registration fee and other expenses for registration of the deed. Thus, the contract, entered into between the said Prabir Banerjee and the plaintiff for sale of the suit property, became a concluded contract and the agreement for sale dated 1st October, 1997 merged into the agreement for sale dated 5th January, 1998. (e) In the agreement, it was contemplated that the sale should be completed within six months from the date of execution of the said deed of agreement and it was further agreed that the vendor would vacate the property before execution and registration of the sale-deed. (f) Unfortunately, Prabir Banerjee died on 17th January, 1998 leaving behind the defendants as his sole heirs and legal representatives. After the death of Prabir Banerjee, the obligation to sell the suit property devolved upon the defendants and the plaintiff approached the defendant no. 1 for the sale of the suit property in terms of the said agreement. The defendant no. 1 assured the plaintiff that she would abide by terms and conditions of the agreement executed and registered by her husband. In pursuance of her such commitment, she executed a deed of indemnity on 28th January, 1998 as the original deed of gift by her mother-in-law and sister-in-law was found lost. (g) The plaintiff after execution of the agreement dated 1st October, 1997 within the knowledge of Prabir Banerjee and his wife applied for loan of rs. 1,30,000/- from HDFC Bank to purchase the suit property. The HDFC, after getting all the relevant documents from the plaintiff's side as well as from the defendants' side and after being satisfied with the title of 'a' schedule property, sanctioned Rs. 1,30,000/- to the plaintiff and issued a bank draft in the name of the defendant no. 1. (h) The plaintiff after getting the said bank draft requested the defendants to receive the said bank draft and the balance consideration money and to execute the sale-deed in his favour but the defendant no. 1, for the reason best known to her, for self and as natural guardian of the other defendants, was taking time to receive the said bank draft and the balance consideration money and to execute and register the sale-deed in favour of the plaintiff. (i) The plaintiff, in such circumstances, was compelled to issue a registered notice on 6th June, 1998 to the defendant no. 1 to act according to the terms of the said agreement for sale and also to accept the bank draft issued by the HDFC in her name on 12th March, 1998 and lying with the plaintiff and she was further requested to execute and register the sale-deed in favour of the plaintiff after receiving the balance consideration money. (j) The defendant no. 1 received the said notice and on 23rd August, 1998, sent a reply of that notice in which she made commitment that she would execute and register the sale-deed in favour of the plaintiff and she would vacate the suit property by 7th October, 1998. She, for herself and as natural guardian of the minor defendants, on 7th October, 1998, accepted the bank draft issued by the HDFC from the plaintiff but she neither executed and registered the sale-deed in favour of the plaintiff nor did she vacate the suit property though she gave a written undertaking on 7th october, 1998 to the plaintiff that she would execute and register the sale-deed on 14th October, 1998 and she also would quit and vacate the suit property on that date. (k) The HDFC had to revalidate the bank draft dated 12th March, 1998 on 16th september, 1998. The said bank draft was received by the defendant no. 1 for herself and her two minor daughters as a part of the consideration money of Rs. 2,50,000/- and she encashed the bank draft through her own account being S. B. A/c No. 17253 of the Allahabad Bank, Baidyabati brach. The defendant for herself and for her two minor daughters further took Rs. 10,000/- from the plaintiff on 12th September, 1998 and she acknowledged the receipt of Rs. 10,000/- by endorsing it in a non-judicial stamp paper. (l) The plaintiff had so far paid Rs. 1,61,000/- as a part of the consideration money out of total sum of Rs. 2,50,000/- and the plaintiff had been paying interest at the rate of 15 percent per annum on Rs. 1,30,000/- from the date of issuance of the bank draft of Rs. 1,30,000/- and also had been living in a rented house at a rent of Rs. 800/-a month. (m)Though the plaintiff tendered the balance amount of Rs. 89,000/-, the defendant no. 1 refused to accept the said amount. The plaintiff, therefore, sent a notice through his lawyer on 16th December, 1998 under registered post with A/d and under certificate of posting to the defendant no. 1 thereby requesting the defendant no. 1 to execute and register the sale-deed on any day. The defendant no. 1, though received the notice on 16th december, 1998, did not act in terms of the notice, sent a reply through her lawyer with false statement, and refused to execute the sale-deed. (n) The plaintiff smelling a scent of foul play of the defendant no. 1 filed a criminal case against the defendant no. 1 in the Court of the learned Sub-Divisional Judicial Magistrate, Serampore on 29th December, 1998 under sections 419, 420, 406, 403 and 114 of the Indian Penal Code and the police submitted charge sheet. (o) In the abovementioned circumstances, plaintiff filed the suit for specific performance of contract.
(3.) THE suit was contested by the defendants by filing written statement in which they gave a vague denial of the entire statements made in the plaint. Subsequently, however, the defendants filed an additional written statement and the case made out in the additional written statement may be summed up thus: (1) During September 1997, the plaintiff, a political worker, came forward to solve the problem of Prabir Banerjee who was then lying ill and assured him for his recovery, which encouraged the defendant no. 1 and said prabir Banerjee to bestow their faith upon the plaintiff. (2) The plaintiff assured the defendants that he would arrange for money for recovery of the said Prabir Banerjee and further assured that within 5/6 months Prabir Banerjee would get rid of his illness and would be able to join his business. The plaintiff proposed to Prabir Banerjee that he was required to help the plaintiff by putting his signatures on the papers to be supplied by the plaintiff and made Prabir Banerjee to believe that the papers and documents would be prepared in a fashion and style to secure loan from the HDFC who usually granted loan with the long repayment terms. (3) Relying upon the assurance made by the plaintiff, Prabir Banerjee signed the documents as those were prepared and placed by the plaintiff for the signature of the said Prabir Banerjee and his men. The plaintiff during last part of January, 1999 in an amicable manner disclosed that it would not possible for the defendant no. 1 to return the money supplied by the plaintiff during the illness of Prabir Banerjee and since the loan had been granted in the name of the plaintiff by the HDFC and since the plaintiff was incurring loss at the rate of 15 percent per annum towards interest on the said loan amount of Rs. 1,30,000/-, the plaintiff advised the defendant no. 1 to quit and vacate the suit property on receive of some more money from the plaintiff. (4) The defendant no. 1 reminded the plaintiff of the oral understanding between the said Prabir Banerjee and the plaintiff to the effect that the money, which would be supplied by the plaintiff, would be returned after his recovery and by instalments. At this, the plaintiff threatened the defendants that he would take step for getting the suit property by hook and crook. (5) Valuation of the property at the material point of time was more than rs. 5,00,000/- and Prabir Banerjee had no occasion to alienate the property in favour of any third party. (6) The plaintiff seized the bank account of the defendant no. 1 where she deposited the bank draft of Rs. 1,30,000/- supplied by him issued through hdfc. (7) In the criminal case filed by the plaintiff, defendant no. 1 honourably acquitted and, therefore, the suit should be dismissed. At the time of hearing, three witnesses deposed for the plaintiff while the defendant no. 1 herself and one Prasanta Kumar Pal deposed in favour of the defendant. ;