Suranjan Pandey vs Bhagirath Adhikary

CHAITALI CHATTERJEE DAS, J.:-

This Appeal is filed against a Judgement and Decree dated September 30, 2013 passed by the Learned Civil Judge Senior Division, 2^nd Court, Krishnanagar , District Nadia in Title Suit no. 44 of 2013 by the Defendant/Appellant whereby the suit filed by the present Respondent/plaintiff has been decreed.

A suit for specific performance of oral agreement of sale of a property was filed by the respondent/plaintiff which has been described in the schedule of the plaint alleging denial to execute and register the deed of sale in consonance with the terms of the oral agreement entered between the parties. The case of the plaintiff is as follows :

The plaintiff and the father of appellants were well acquainted with each other and because of their friendship the plaintiff was very affectionate towards the defendant and had a very cordial relationship.

The defendant /appellant was an unemployed person and since he needed some money to start a business intended to sale his property and the plaintiff/respondent agreed to purchase the said property. After discussion the consideration price of the property was decided as Rs. 4,00,000/- and accordingly they made an oral agreement between themselves and in terms of such oral agreement the plaintiff/respondent paid Rs. 3,50,000/- by instalments and it was further decided that the balance amount of Rs. 50,000/- will be paid within a year from such payment of Rs. 3, 50,000/- and then a sale deed will be registered in favour of the plaintiff/respondent. In view of their ongoing friendship and having faith on each other the plaintiff did not take any money receipt or documents and paid that amount of Rs. 3, 50,000/-and as the plaintiff/respondent did not have enough money to purchase the required stamp paper and other expenses for registration, despite giving a substantial part of the agreed consideration amount the deed was not registered by paying the balance Rs. 50,000/-. However, the defendant/appellant in part performance of the said contract handed over the possession of the property to the plaintiff/respondent. Since the date of that oral agreement the plaintiff /respondent kept the disputed property in his own possession and was enjoying the same and also paid the tax and rents to the Municipality and other Government Offices. The plaintiff /respondent also submitted a construction plan for sanction of such plan and started raising the construction of the building on his own.

It was further the plaintiff’s case that after the foundation was constructed the present appellant with the mala fide intention sent letter through his Advocate Subodh Chandra Banerjee on May 22, 2008 and demanded balance amount of Rs. 1,00,000/- and also intimated that their oral agreement has expired in the month of Poush, 1414 B.S. However, a reply was given through his Advocate Smt. Mohua Das Chakroborty denying further receiving of Rs. 1,00,000/- and expiry of the period of their oral agreement. On June 14,2008 again said Subodh Chandra Banerjee the Learned Advocate send a notice to the Advocate Mohua Das Chakraborty demanding balance of Rs. 1,00,000/- and also that on payment of such amount the deed will be executed . The Learned Advocate on behalf of the plaintiff also informed that only Rs. 50,000/- was due and payable which he agreed to pay and requested the defendant/appellant to sign in the document. However, no reply was given after that letter dated July 18, 2008. Lastly, having no other alternative he filed the suit for specific performance claiming the present appellant.

On the contrary, the case of the appellant /defendant is a complete denial of any oral agreement or receiving any amount towards part consideration which was specifically denied after entering appearance in the suit by filing the written statement. The appellant also denied exchange of any letters between the advocates and also that another suit has been filed by the plaintiff over the same cause of action against the present defendant/appellant which was still pending and the story of refusal to execute registered deed of sale on 20.12.2019 is absolutely false and concocted. It was further denied that any specific time limit was fixed and the contract is vitiated for necessary definite particulars about the necessary terms of contract.

The Learned Trial Court after analysing the evidences adduced by the parties and arguments advanced by the Learned Advocates decreed the suit mostly relying upon the advocate’s letter which was exhibited before the Learned Court. Challenging the same the defendant has come before this Court.

The Learned Advocate representing the appellant before this Court argued that the appellant being the defendant by filing his written statement specifically dealt with each and every allegations and did not admit any of the allegations in terms of Order VII Rule 3 of CPC and also denied the amount alleged to be agreed of Rs. 4,00,000/-. It is denied that the respondent/plaintiff paid Rs. 3, 50,000/- as earnest money to him. It is further evident that in terms of Section 136 of the Indian Evidence Act, 1872 the respondent/plaintiff never called his advocate for adducing evidence on his behalf when those letters were specifically challenged by the defendant and the certified copy of those letters were relied upon before the court without producing the original document. Further he submitted that the law laid down in this regard is very specific that even when any document is exhibited without having any objection, the contents of the document cannot be said to be proved and that is to be proved in accordance with the Indian Evidence Act.

Furthermore, the legal position is not in dispute that mere production and marking of a documents as exhibit by the court cannot be held to be due proof of its contents. He relied upon the decision of Narbada Devi Gupta vs Birendra Kumar Jaiswal & Anr.^{11.AIR 2004 SC 175;2003 (8) SCC 745; CDJ 2004 (SC) 23} . The Learned Advocate put further reliance on Alamelu & Others vs State represented by Inspector of Police^{22.AIR 2011 (SC) 715, 2011 (1) SCC, 385 CDJ 2011 SC 066}, R.V.E Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Anr.^{33.AIR 2003 SC 4548, (2003) 8 SCC 752 , CDJ 2003 SC 922} and argued that the plaintiff/respondent had not been able to establish any answer to the question of establishing any type of contract between two persons and hence no decree for specific performance of such contract can be passed.

Per contra, the Learned Counsel representing the respondent vehemently opposes the contention of the appellant and argued that the Learned Trial Court rightly passed the decree of specific performance on the basis of the evidence adduced and there is no need to interfere with such decree. It is contended that the appellant admitted the exchange of letters between the Learned Advocate of the parties and in his written statement did not categorically deny the said letters of advocates exchanged on behalf of both the parties. The denials are evasive in nature and in terms of Order VIII Rule 3 of the Code of Civil Procedure the defendant appellant was under obligation to deal with those paragraphs very specifically and categorically. Therefore the opponent has declined to avail himself the opportunity to put his essential and material case in cross examination and it must follow that the testimony given could not be disputed at all. He put reliance in this regard in the decision of A.E.G. Carapiet vs A.Y. Derderian ^{44.AIR 1961 Cal 359} paragraph 9.

It is further submitted that the appellant refused to produce his Learned Advocate as witness and despite a specific question put to him in cross examination as he denied on oath before the Court to call Subodh Banerjee as witness to depose in this case. This clearly manifest that the appellant withheld the evidence of that advocate since it would have been unfavourable for him. It is therefore to be presumed under Section 114 (g) and 126 of Indian Evidence Act that the said advocate was instructed by him to write the said letter. The Learned Advocate of the appellant contradicted the stand taken by the respondent regarding non examination of the advocate as witness who wrote the letters despite the plaintiff reiterated in the statement and tendered the affidavit in chief where he clearly mentioned about the letters and despite that no such cross examination was made on behalf of the present appellant.

The Learned Advocate further put reliance upon the decision of the High Court of Calcutta A.E.G. Carapiet Vs. A.Y. Derderian^{55.1960 SCC online Cal 44}, Dayamathi Bai vs. K.M. Shaffi^{66.(2004) 7 SCC 107} on the point of raising objection regarding admissibility of certified copies of the documents which was marked with exhibit and admitted in evidence , but later on objected taking the point that the objection was not as to the admissibility of the certified copy but to the mode of proving falsity within the procedural law and can be waived Therefore there is no scope for further challenging the said modes of that document which clearly established the execution of the letters and accordingly prayed for dismissal of the instant appeal.

The point falls for consideration in this appeal is that as to whether the Learned Court erred in passing the decree merely relying upon the certified copies of the letters the contents of which were not proved by adducing evidence by the Advocates who wrote the letters ,but were marked exhibits .

The factual matrix of this case unveils the dispute pertains to an oral agreement entered into between the appellant and the father of respondents whereby it was agreed that the disputed property will be sold on an consideration amount of Rs. 4, 00,000/- out of which Rs. 3, 50,000/- was to be paid prior to the execution of the sale deed on some instalments and the balance Rs. 50,000/-to be paid at time of registration of the sale and on failure to pay the balance amount the sale deed will not be registered .In order to prove the case the plaintiff deposed before the Court and tendered his affidavit in chief and the certified copy of the letter dated May 22, 2008, dated June 11, 2008 , dated June 14, 2008 as well as the reply letter dated July 18, 2008 were marked as exhibits 1, 2, 3, and 4 respectively. It was also deposed that all the original letters are lying in other suit being title suit no. 106 of 2009 and therefore the certified copies were filed.

It is evident from the record that no objection was raised on behalf of the present appellant/defendant while those documents were marked as exhibits. The plaintiff during his evidence failed to disclose the date when the discussion was held with the father of the present appellant regarding sale of suit land. However he deposed that no agreement for sale was effected between him and the defendant .The plaintiff further failed to say the date of making payment by way of instalment and or the number of instalment or how he paid the money to the defendant. He could not produce any independent witness to prove the monetary transactions or regarding receipt of the said amount of instalment. It is admitted that the plaintiff had filed a title suit being Title suit no. 106 of 2009 against the present appellant/defendant which was dismissed followed by an appeal filed before the Learned District Judge, Nadia which is still pending. However he denied about that no oral agreement took place but could not remember the date when said agreement took place.

From his evidence it can be found that a sanctioned plan has been passed in favour of the present appellant /defendant by Nawadwip Municipality and admitted that about 8 years ago an oral agreement was formed and denied that possession was not delivered in his favour. He filed the certified copy of L.R. R.O. R which stood in the name of the appellant/defendant.

In this case the plaintiff has not adduced any other witnesses. The present appellant deposed as D.W. 1 who denied to have any acquaintance with the plaintiff prior to filing of the suit. He stated that plaintiff might have talked with his father but not with him and he never agreed to sale the schedule land at Rs. 3, 00,000/- or at any amount. He denied to have accepted any advance money of Rs. 2, 50,000/- or any sum. According to the witness the possession of the suit property was under him and he paid the Municipal tax as well as the Government rent and also received the summons of the Court from the concerned court in connection with Title suit no 106 of 2009. The said suit was dismissed after he appeared and filed his written statement. When the transaction took place the present appellant/defendant was a student and pursuing his M.A and his father used to look after all the property matter and domestic matters. He denied to have received any amount from the plaintiffs. It further transpires from his cross-examination that he admitted the Learned Advocate Mr. Subodh Banerjee who practices in Nabadwip Chouki Court was known to him. His testimony further reveals that that the entire talk of settlement about the property in dispute was not with him but with his father who has expired. This witness denied of any letter dated May 28, 2008 made through advocate Subodh Banerjee by him and or served upon the plaintiff or any demand of further amount of Rs. 1, 00,000/-made from plaintiff by a notice. He also denied to receive any notice through the advocate of the plaintiff and also denied to sell the land upon remaining Rs. 1,00,000/-. The specific question was put to him by the plaintiff/respondent to which the reply was given by the witness that he shall not call the Advocate Subodh Banerjee as witness to depose in the case on behalf of defendant also no other witness adduced evidence.

From the above nature of evidence it is very much apparent that excepting the oral version of the plaintiff there is no other evidence to substantiate that any oral agreement was entered into with the plaintiff and the father of the present appellant. However, the only documents which were placed to substantiate such contention are the letters addressed by the Learned Advocates on behalf of both the parties to each other. The core contention has now been crystallised to ascertain whether the said letters which were the certified copies of the original are sufficiently proved, over which the Learned Court delivered such judgement.

The appellant has relied upon the decisions of Narbada Devi Gupta vs Birendra Kumar Jaiswal (supra) where three rent receipts were relied upon and the main question raised by the appellant before the Court was on the admissibility and evidentiary value of those documents. The main thrust of the argument strenuously advanced by the Learned Counsel was that mere admission of the signature of the plaintiff on the back portion of the rent receipts and marking those as exhibit by the Court cannot be taken as due proof to execution of the rent receipts by the original lady. It was argued that exhibits are marked with the signatures of the plaintiff on the back portion of the rent receipts and such making could not be taken to be proved on due execution and issuance of rent receipts. Reliance was heavily placed of the case of Kamji Dayawala and Sons Pvt. Ltd. Vs Invest Import^{77.(1981) 1 SCC 80} In paragraph 16 of the said decision it was held that-

In the decision of Alamelu and Ors. (Supra) relates to the date of birth of the girl and the High Court relied solely on the certificate issued by doctor and however the facts and circumstances of the case do not have any semblance with the facts of the present case and is distinguishable. In the decision of K. Nanjappa (dead) by LRS (supra) it was observed that-

In other judgements as relied upon all the above decisions were considered and therefore we propose not to discuss each and every judgement since the issue raised are similar in nature.

The decision relied upon by the Learned Advocate of the respondent in the case of Dayamati Bai(supra) a certified copy of a sale deed was exhibited where no objection was raised and the document was marked and admitted in evidence and the suit was decreed . An appeal was preferred against that and the judgement of R.V.E Venkatachala Gounder (supra) as relied upon by the appellant was discussed, where the Hon’ble supreme court took note of the decision of Roman Cathalic Mission Vs State of Madras^{88.AIR 1966 SC 1457}. In the said case it was observed that:-

The Hon’ble Apex court further took note of the decision of the Privy Council in Gopal Das vs Thakurji^{99.AIR 1943 PC 83} in which it was held that:-

In the present case when the plaintiff submitted certified copies of the letters were written by two advocates as per instruction of their respective client who are both the plaintiff and the defendant and when those letters were taken on record and marked as an exhibit, no objection was raised by the appellant and the execution of those letters were also not challenged. That apart in the plaint specifically the letters were described to be addressed by whom but in the written statement excepting stating the averments as false no specific denial can be found . Despite expressing the execution of letters as false no attempt was made on behalf of the defendant to dispel the same by calling upon the advocate rather he denied to call that advocate to adduce evidence .Therefore even if the argument advanced by the appellant is considered that the contents of the background is not proved there is no denial of the fact that the mode of execution of the document being the letters were never objected to and hence it is not open to the appellant to object such mode of prove at the time of hearing of appeal before this court. It was held by the Hon’ble Supreme Court that in such situation if the objection had been taken at the trial stage the plaintiff could have met it by calling for the original document which was on record in co-lateral proceedings. Similarly in this case also the original letters were there in the other proceedings which is undisputed but the appellant made no attempt to call the record neither he raised objection regarding mode of execution of the documents.

Therefore the sum and substance appears that the mode of execution that is the letter issued by the advocates at the instruction of the appellant was given to the plaintiff/respondent and a reply was given to the appellant against which further reply was given. Not only that a reply letter was given on behalf of the plaintiff/respondent. Therefore where the entire case rests on the oral agreement and the certified copies of the letters exchanged by the Learned Advocates on behalf of the respective parties are marked with exhibit without objection and the mode of execution was not challenged and further the Appellant denied to cite the said advocate to adduce evidence before the court, which otherwise would have been the best recourse to dispel the case of the plaintiff ,it obviously raise the question the question of presumption in favour of the plaintiffs that those letters were issued to the respondent/plaintiff on the basis of settled law that whenever the opponent has declined to avail himself to the opportunity to put the essential and material case in cross examination ,it must follow that he believed that the testimony given could not be disputed at all.(Emphasis relied on A.E.G. Crapiet vs A.Y. Derderian (supra).

Since the proceeding being a civil dispute it is not expected that it is to be proved beyond the shadow of all reasonable doubts and once the letters were exhibited without objection and even regarding execution of the letters at the stage of trial and the plaintiff was able to create a higher degree of probability the onus to prove then the onus shifts upon the defendants which he has failed to discharge and in absence of thereof it is to be held that the plaintiff’s burden of proof has been duly discharged .

Hence in view of the aforesaid facts and circumstances and the law laid down in this regard we do not find any cogent reason to interfere with the judgement and decree passed in favour of the Appellant/plaintiff and there is no merit in the case.

The Appeal stands dismissed. The Judgement and decree passed by the Learned Trial Court on September 30, 2013 is hereby affirmed.

Liberty is granted to the appellant to withdraw the amount alongwith any interest accrued thereon lying deposited with the Trial Court as recorded in the order dated 13^th July, 2016 passed in FAT of 2013.

No order as to costs.

Decree to be drawn up in accordance with law.

Urgent certified copy if applied by any of the parties to be supplied subject to observance of all formalities.