Hargopal Banik vs Nepal Ch. Sarkar

[1] Heard Mr. P.K. Dhar, learned counsel appearing for the appellant. None appears for the respondent despite due notice from this court.

[2] This is an appeal under section 96 of the CPC from the Judgment dated 28.04.2015 delivered in T.S. 73 of 2012 by the Civil Judge, Senior Division, Court No.1, West Tripura, Agartala.

[3] The appellant as the plaintiff filed the suit for specific performance of contact as purportedly the defendant in pursuance to the contract, did not act even though the petitioner was always ready to pay the full consideration money to the extent of Rs.5,50,000/-. Out of that Rs.5,50,000/- [the whole consideration money] an earnest money to the extent of Rs.5,00,000/- had been paid on 24.03.2011.

[4] It was agreed between the parties that if the remainder of the consideration money to the extent of Rs.5,00,000/- is paid within one year, the defendant-respondent shall be under obligation to execute the sale deed by transferring the land which is the subject matter of the suit.

[5] The land in question as described in the schedule of the plaint pertains to Mouja- Agartala, Sheet No.22, under Khatian No. 1134, Old Dag No.20002/part, hal Dag No.1761/2615, measuring 4 (four) gandas 2 (two) karas, classified as Viti (Nal).

[6] The defendant, the respondent herein, by filing the written statement has denied the existence of any such contract even though the contract was in writing and notorized. From scrutiny of the said agreement (Exhibit-1), it appears that the said agreement has been styled as deed of agreement of 'advance money'. But from its recital it clearly surfaces that for all purposes that was a contract to sale. The defendant, however, has categorically stated in the written statement as follows:

"Being a friend and being a simple person the defendant thereafter believed to the plaintiff and accordingly on the said day i.e. on 28.04.2011 the plaintiff paid the said amount of Rs.5,00,000/- (Rupees Five lacs only) in cash to the defendant. However, defendant requested the plaintiff to give him a photocopy of the said money receipt later on. But the plaintiff inspite of assurance to give the said did not give the said later on and the defendant also did not later on persuad for the said as he was having a very good and cordial relation with the plaintiff."

[7] From the said statement, it can be understood that the respondent has intended to state that he never entered in the agreement or contract for sale of the suit property rather he took loan of Rs.5,00,000/- from the plaintiff and the so-called agreement or contract is nothing but a money receipt for acceptance of the same.

[8] After recording the evidence, the trial court while deciding the issues as framed, has come to the inference that the proof of entering into the agreement for sale is insufficient and in absence of such proof, no decree can be passed as sought for in the suit. That apart, it has been further observed as follows:

"Section 16 of the Special Relief Act as to readiness and willingness stands redundant. It follows, therefore, that the plaintiff is not entitled to any decree and relief, as prayed for. In this view of the matter the Issues No.B, C and D stands answered in negative."

Thus, the suit was dismissed.

[9] Mr. P.K. Dhar, learned counsel appearing for the appellant has submitted that as an alternative relief under section 20 of the Special Relief Act, the amount that has been admittedly received by the defendant may be returned to the plaintiff. If that alternative relief is granted, he will not press this appeal.

[10] Be that as it may, this finds that that the contract has been formed and the plaintiff was ready to pay the remainder of the amount. Even the defendant has admitted that he received a sum of Rs.5,00,000/- from the plaintiff. But this is not case, where the decree of specific performance can be cause

[11] The defendant-respondent in the written statement has clearly admitted in para 7 that an amount of Rs.5,00,000/- was received by him 'as loan' and he issued the money receipt. Exhibit-1 clearly shows that he received the said amount of Rs.5,00,000/- with other terms which he has strangely denied. This is a clear admission under section 17 of the Evidence Act. Thus, this court is of the view that under section 20, the refund of the said amount should be directed as an alternative relief, in lieu of directing performance. The judgment is therefore interfered with to that effect and set aside. The defendant- respondent is directed to refund the sum of Rs.5,00,000/- within a period of 4 (four) months from the date of the decree. It is further directed that the plaintiff shall send a copy of the decree to the defendant-respondent by registered post A.D. for his compliance as there had no representation despite due notice fro him.

In terms of the above, this appeal stands party allowed for the reason stated above.

Draw the decree accordingly. Send down the records thereafter.