Calcutta High Court (Appellete Side)
Kanchilal Paul vs Sasthi Charan Banerjee & Ors on 5 December, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F.A. No.282 of 2006
C.O.T. No.2304 of 2005
Kanchilal Paul
Vs.
Sasthi Charan Banerjee & Ors.
For the Appellant/Petitioner : Mr. Rabindra Narayan Dutta,
Mr. Sibasish Ghosh,
Mr. Hare Krishna Halder,
Mr. Kaushik Bhattacharjee,
Ms. Debjani Bandopadhyay.
For the Respondent/Opposite Party : Mr. Bidyut Kumar Banerjee,
Ms. Shila Sarkar.
Heard on: 6.11.2008, 11.11.2008 and 18.11.2008.
Judgment on: 5th December, 2008 Bhaskar Bhattacharya, J.:-
This first appeal is at the instance of a plaintiff in a suit for specific performance of contract and is directed against the judgment and decree dated 24th March, 2004 passed by the learned Civil Judge, Senior Division, First Court, Barasat, in Title Suit No.123 of 1999, thereby dismissing the suit on the sole ground that the agreement for sale was written on insufficiently stamped paper and as such, on the basis of such an agreement, no decree could be passed in favour of the plaintiff. The learned Trial Judge, however, decided all other issues in favour of the plaintiff on merit. The defendant nos. 2 and 3, the subsequent purchasers, however, have filed a cross-objection thereby disputing the findings of the learned Trial Judge on all other issues decided in favour of the plaintiff.
The case made out by the plaintiff may be summed up thus :
a) The suit property consists of 7 cottahs and 7 ½ chitaks of land with an old structure with the existing tenants as mentioned in the schedule of the plaint. The defendant no.1 was the owner of such property.
b) The defendant no.1, on March 29, 1999 entered into an agreement for sale of the said property at the price of Rs.3 lakh after receiving a sum of Rs.10,000/- as earnest money with the stipulations that the plaintiff would be empowered to make settlement for ejectment of the existing tenants residing in the dilapidated structure standing on the property and that he would be entitled to demolish the said building after the eviction of the tenants and divide the land underneath the structure into small plots after making common passage, drain etc. It was further agreed that the defendant no.1 would be bound to execute and register sale deeds in favour of nominees of the plaintiff and on such deeds, the plaintiff would put his signature as a confirming party. It was further agreed that the transaction should be completed within one year from the date of entering into such agreement.
c) Since the date of execution of such agreement for sale, the plaintiff made several development works and spent Rs. 2 lakh for causing the preparation of common passage, drain etc. and also made contact with the existing tenants who wanted to purchase 3 cottahs of land out of the suit property.
d) The plaintiff, pursuant to the said agreement, was in actual physical possession over the property and on repeated occasions, asked the defendant no.1 to deliver the original deed with regard to the schedule property but the defendant no.1 took time on various pretexts.
e) As the plaintiff entered into an agreement for sale with one Kanai Samanta, the existing tenant, the said person on 20th May, 1999 came to the plaintiff's place and had shown to him a letter of attornment written by an Advocate indicating that the defendant no.1 had already transferred property in favour of the defendant nos. 2 and 3 on 3rd May, 1999. Hence the suit.
The suit was contested by the defendants by filing two sets of written statements, one by the defendant no.1 and the other, jointly by defendant nos.2 and 3.
The case made out by the defendant no.1 in his written statements may be summarized thus:
a) In the year 1998, the defendant no.1 expressed his intention to sell the suit property and started searching out suitable buyer. On 10th March, 1999 the defendant no.1 entered into an agreement for sale of the suit property with the defendant nos. 2 and 3. Thereafter, by a registered deed dated 3rd May, 1999, the defendant no.1 sold and transferred the property with tenants to defendant nos. 2 and 3 for valuable consideration and handed over possession of the same to the purchasers.
b) Thereafter, by a letter of attornment dated 18th May, 1999 the tenants were informed by defendants jointly through their learned Advocate about the transfer of ownership.
c) On 24th March, 1999 the plaintiff approached the defendant no.1 with a proposal for purchase of the said property but the defendant no.1 declined to enter into such agreement on the ground that he had already entered into an agreement for sale of the selfsame property with the defendants no.2 and 3 and as such, he had nothing to do at that stage.
d) On 29th March, 1999 at about 4.30 P.M., the plaintiff called on defendant no.1 and asked him to accompany him to a machine-shop of one Ajit Bhattacharjee at 86, Dharmatala Street, Calcutta, for negotiation of the sale of the said property. The defendant no.1 declined to go to the said machine-shop but the defendant was compelled to go there under the pressure of the plaintiff.
e) After reaching at the said machine-shop, the defendant no.1 found himself surrounded by 10(ten) persons including the plaintiff and under coercion was compelled to sign some papers including one stamped paper. The defendant no.1 was not allowed to go through those papers and moreover, as he had no spectacle with him, he could not even go through the contents thereof. Thus, the plaintiff and his men and agent managed to obtain the signature of the defendant no.1 on some typed papers. The defendant no.1 was further threatened not to disclose such incident to anybody including police.
f) The defendant no.1 out of fear and danger of his life pondered over the matter and ultimately, decided to report to the police on 1st April, 1999 by making a G.D. entry at the Taltala Police Station.
g) Thereafter, on 3rd April, 1999 the plaintiff and his men and agent invaded into the suit property being premises no. 126, Raj Kumar Mukherjee Road, Calcutta-700 035 and started to cut down the trees and dig the land according to their wish without any permission from the defendant no.1. For the aforesaid illegal act, the defendant no.1 initiated a proceeding under Section 144(2) of the Code of Criminal Procedure before the Learned Executive Magistrate, Barrackpore.
h) The defendant no.1 also informed the Chairperson, Baranagar Municipality by Advocate's letter dated 12th April, 1999 regarding objection of the defendant no.1 against such illegal act of the plaintiff.
i) A Criminal Case being Case No.C/1386/99 under Sections 384/341/34 of the Indian Penal Code had subsequently been filed by the defendant no.1 against the plaintiff and his associates before the Learned Chief Metropolitan Magistrate, Calcutta and the same was still pending.
j) On 23rd April, 1999 the plaintiff came to the house of the defendant no.1 and had thrown away some Xerox copies of papers with a bundle of currency notes of Rs. 10,000/- and threatened the defendant no.1 with dire consequences if he disclosed the incident to the police.
k) On 23rd April, 1999 the defendant no.1 for the first time came to know that the alleged agreement for sale of the property was created by the plaintiff over which defendant no.1 was compelled to sign on 29th March, 1999.
l) The defendant no.1 had no intention to enter into any agreement for sale of the suit property with the plaintiff as the defendant no.1 had already entered into an agreement for sale with the defendant nos. 2 and 3 in respect of the said property.
m) Subsequently, the defendant no.1 returned the said amount of Rs.10, 000/- to the plaintiff by cheque. The said cheque was received by the plaintiff but was returned back to the defendant no.1.
n) The plaintiff is a land speculator and promoter and had bad intention to grab the suit property and obstructed the defendant nos. 2 and 3 from inspecting the said suit premises on 19th May, 1999. The tenants and the plaintiff threatened the defendant nos. 2 and 3 and tried further to enter into the suit premises. The defendant nos.2 and 3 lodged diary on 24th May, 1999 against the plaintiff and the said tenant with the local Baranagar Police Station.
o) The suit was, thus, liable to be dismissed as there was no valid agreement in accordance with law between the plaintiff and the defendant no.1.
The defendant nos.2 and 3 filed separate written statement thereby supporting the defendant no.1 and their defence may be epitomized thus:
a) The defendant nos. 2 and 3 entered into an agreement for sale in respect of the suit property with the defendant no.1 on 10th March, 1999.
b) On 3rd May, 1999 by a registered deed of sale the defendant no.1 sold the said property with tenants for valuable consideration to the defendant nos. 2 and 3 and thereafter, they applied for mutation of their names in the Baranagar Municipality.
c) By a letter of attornment dated 18th May, 1999 the tenants were informed about the transfer of the property through their learned Advocate and they received the same.
d) After the service of letter of attornment upon the tenants, they with the help of the plaintiff tried to construct illegal construction on the vacant portion of the suit premises and consequently, the defendant nos. 2 and 3 reported the matter of the local police station on 19th May, 1999.
e) The plaintiff is a land speculator and promoter and had bad intention to grab the property and joined hands with the existing tenants and obstructed these defendants from inspecting the said suit premises on 19th May, 1999. The defendant nos.2 and 3 consequently lodged a general diary on 24th May, 1999 against the plaintiff and the said tenants in the local police station.
f) The defendant nos. 2 and 3 came to know from defendant no.1 that he had instituted a criminal case for extortion under Sections 384/341/34 of the Indian Penal Code in the Court of Metropolitan Magistrate at Calcutta against plaintiff and his associates for compelling the defendant no.1 to sign on few typed papers.
g) The defendant nos. 2 and 3 are bona fide purchasers for value and as such, they filed a suit being Title Suit No.236 of 1999 before the Learned Civil Judge (Junior Division) 3rd Court at Sealdah against the plaintiff for declaration and permanent injunction and plaintiff had full knowledge of the same. The suit filed by the plaintiff for specific performance of contract was thus liable to be dismissed.
At the time of hearing of the aforesaid suit, the plaintiff himself and one Prassanta Paul gave evidence in support of plaint case while defendant no.1 himself figured as D.W.-1 and the father of the defendant nos.2 and 3, as their constituted attorney, appeared as D.W.- 2 to oppose the claim of the plaintiff.
As indicated earlier, the learned Trial Judge, by the judgment and decree impugned herein, although found that there was a valid agreement for sale between the plaintiff and the defendant no.1 and that the plaintiff was all along ready and willing to perform his part of the contract and at the same time, the defendants no.2 and 3 were not bona fide purchasers for value without notice, yet, dismissed the suit on the sole ground that the agreement for sale between the plaintiff and the defendant no.1 having been executed on a stamp-paper of Rs.10/- which is insufficiently stamped in view of the provision of the Stamp Act (West Bengal Amendment), such document was illegally marked exhibit in the suit and thus, on the basis of such an agreement for sale, the plaintiff was not entitled to get a decree for specific performance of contract. The learned Trial Judge, thus, dismissed the suit on that ground alone.
Being dissatisfied, the plaintiff has preferred the present appeal while the defendant nos.2 and 3, the subsequent purchasers, have filed a cross-objection thereby challenging the finding of the learned Trial Judge on the other issues decided in favour of the plaintiff.
Mr. Dutt, the learned advocate appearing on behalf of the appellant, has strenuously contended before us that in spite of arriving at the findings on all issues in favour of the plaintiff, the learned Trial Judge erred in law in dismissing the suit on the sole ground that the agreement was written on an insufficiently stamped paper. Mr. Dutt points out that it will appear from the order passed in the suit itself that the learned Trial Judge referred the said document to the Collector for making appropriate order of assessment of the stamp-duty and penalty and such being the position, according to Mr. Dutt, the learned Trial Judge should have decreed the suit on condition that his client would pay the deficient stamp-duties and the penalty that will be assessed by the concerned Collector.
Mr. Dutt, therefore, prays for setting aside the judgment and decree passed by the learned Trial Judge and for passing of the decree of specific performance for contract by affirming the findings recorded by the learned Trial Judge on other issues in the suit.
Mr. Banerjee, the learned senior advocate appearing on behalf of the defendant nos.2 and 3, has not only opposed the aforesaid contention advanced by Mr. Dutt but also attacked the findings recorded by the learned Trial Judge on various issues decided in favour of the plaintiff.
According to Mr. Banerjee, the learned Trial Judge erred in law in holding that his clients were not bona fide purchasers for value without notice. Mr. Banerjee, in this connection, contends that the learned Trial Judge even did not take into consideration the agreement dated 10th March, 1999 executed by the plaintiff in favour of his clients which was executed much prior to the alleged agreement entered into between the plaintiff and the defendant no.1.
Mr. Banerjee contends that his clients having earlier entered into agreement with the plaintiff for purchase of the selfsame property, even if it is assumed for the sake of argument that his clients had knowledge of the subsequent agreement of the plaintiff with the defendant no.1, such fact was of no consequence as the suit was liable to be dismissed on the ground that his clients purchased the said property on the basis of a prior agreement.
Mr. Banerjee next contends that in this case the plaintiff had failed to prove that he had sufficient means to purchase the property immediately after the execution of the alleged agreement. Mr. Banerjee points out that in cross- examination, the plaintiff admitted that he had not filed any document to show that he had the requisite amount of Rs. 3 lakh to purchase the property at all relevant time. According to Mr. Banerjee, the suit is liable to be dismissed on that ground alone.
Mr. Banerjee next points out that the alleged agreement for sale between the plaintiff and defendant no.1 was not a bilateral document but was only signed by the plaintiff. Mr. Banerjee contends that in order to constitute a valid written agreement for sale, such document must be a bilateral one and in support of such contention, Mr. Banerjee relies upon the decision of the Supreme Court in the case of Tarsem Singh v. Sukhminder Singh reported in AIR 1998 SC 1400.
Mr. Banerjee further contends that it would appear from the purported agreement for sale between the plaintiff and the defendant no.1 that it was really an agreement for development by which the plaintiff was authorized to develop the property and according to him, such being the position a suit for specific performance was clearly barred by Section 14(3) (c) of the Specific Relies Act. In support of such contention, Mr. Banerjee relies upon a Division Bench decision of this Court in the case of Vipin Bhimani vs. Sunanda Das reported in AIR 2006 Cal 209.
Mr. Banerjee, therefore, prays for setting aside the findings of the learned Trial Judge on the issues decided in favour of the plaintiff and prays for dismissal of the suit on merit.
Therefore, the first question that arises for determination in this appeal is whether the learned Trial Judge was justified in dismissing the suit simply because the agreement for sale between the plaintiff and the defendant no.1 was typed on insufficiently stamped paper.
After hearing the learned Counsel for the parties and after going through the provisions contained in the Stamp Act, we are of the opinion that the mere fact that a document is insufficiently stamped is by itself not a ground for discarding the same while considering the merit of a suit if the party who produces such documents pays the deficit stamp duty as well as the penalty that may be assessed by the Collector under the provision of the Stamp Act. In the case before us, it appears from record that the said agreement was marked as Exhibit- 1 with objection and the document was also referred to the Collector in terms of the provision of the Stamp Act by the learned Trial Judge. The plaintiff had accepted such position and agreed to pay the deficient stamp-duty and the penalty that may be assessed by the Competent Authority and as such, there is no bar in considering the said document if the plaintiff is ready and willing to pay the deficit stamp duty and the penalty that may be imposed by the Collector.
We, therefore, find that the learned Trial Judge erred in law in dismissing the suit on the sole ground that Exhibit 1, the agreement for sale sought to be enforced, was executed on insufficiently stamped paper.
Even if we hold that the suit should not have been dismissed on the ground that the agreement was entered into on insufficiently stamped paper, in our opinion, the defendants, in this appeal filed by the plaintiff, are entitled to challenge the findings recorded by the learned Trial Judge on other issues decided in favour of the plaintiff in terms of the provisions contained in Order XLI Rule 22 of the Code even without filing any formal cross-objection. As the suit was dismissed in its entirety, there was no scope of filing a formal cross-objection in terms of the Order XLI Rule 22 of the Code; but at the time of hearing of this appeal, the defendants, as respondents in this appeal, are entitled to support the ultimate conclusion of the dismissal of the suit by challenging the finding of the learned Trial Judge on other issues decided against them and convincing the appellate Court that those issues ought to have been decided against the plaintiff. (See: S. Nazeer Ahmed vs. State Bank of Mysore and Ors. reported in AIR 2007 SC 989).
We, therefore, proceed to consider whether in the facts of the present case the learned Trial Judge was justified in holding that (1) there was a valid agreement for sale between the plaintiff and the defendant no.1, (2) the plaintiff was at all material time ready and willing to perform his part of his contract, (3) the agreement entered into between the defendant no.1 in one hand and defendant nos.2 and 3 on the other, was really a subsequently manufactured one as contended by the plaintiff and (4) whether the defendant nos.2 and 3 were bona fide purchasers for value without the notice of the agreement between the plaintiff and the defendant no.1.
Before entering into those questions, we take note of the fact that in this case, although two separate written statements were filed, one by the defendant no.1 and the other, jointly by the defendant nos. 2 and 3, the defendant no.1, appearing as D.W.-1 was not cross-examined by the defendant nos.2 and 3. In this case, the defendant nos.2 and 3 having pleaded ignorance of the agreement between the plaintiff and the defendant no.1 and having failed to cross-examine the DW- 1, in deciding the first two questions mentioned above, we have to solely rely upon the evidence adduced by the plaintiff's witnesses and the evidence given by the defendant no. 1 on those questions.
Therefore, the next question is whether the Exbt.-1 was a valid agreement for sale between the plaintiff and the defendant no.1 and was enforceable under the law.
The said agreement is a unilateral one signed by the defendant no.1 alone admitting that he accepted earnest money of Rs.10,000/- from the plaintiff and agreed to sell the suit property at the price of Rs.3 lakh to the nominees of the plaintiff with an authority given to him to take step for eviction of the existing tenants and demolition of the old building by making the land beneath it into plots after making common passage and drains.
Mr. Banerjee contended that an agreement for sale must be a bilateral document and thus, must be signed by both the owner and the purchaser and in this case, the alleged document on the face of it being signed only by the owner is not a valid one.
The answer to the aforesaid question will be found from the observations of the Supreme Court in the case of Rajendra Pratap Singh vs. Rameswar Prasad reported in AIR 1999 SC 37 where the Apex Court was dealing with the provision of Section 107 of the Transfer of Property Act which prescribes that where a lease deed is created by a Registered document or more than one such documents, each of such documents should be executed by both the lessor and the lessee. In that case, a Kabulyat was executed by the lessee accepting a lease for five years at a specified rate of rent and the lessor accepted such Kabulyat. At the end of five years, it was contended by the lessee that as the lease-deed was not signed by both the lessor and lessee, the same could not be enforced as a valid lease for five years. In that context, the Supreme Court made the following observations:
"The word "execute" is given the meaning in Black's Law Dictionary as "to complete; to make; to sign; to perform; to do; to follow out; to carry out according to its terms; to fulfil the command or purpose of." In "Words and Phrases" (Permanent Edition) the word "execute" is given the meaning as "to complete as a legal instrument; to perform what is required to give validity to." An instrument is usually executed through multifarious steps of different sequences. At the first instance, the parties might deliberate upon the terms and reach an agreement. Next the terms so agreed upon would be reduced to writing. Sometimes one party alone would affix the signature on it and deliver it to the other party. Sometimes both parties would affix their signature on the instrument. If the document is required by law to be registered, both parties can be involved in the process without perhaps obtaining the signatures of one of them. In all such instances the instrument can be said to have been executed by both parties thereto. If the instrument is signed by both parties it is presumptive of the fact that both of them have executed it, of course it is only rebuttable presumption. Similarly if an instrument is signed by only one party it does not mean that both parties have not executed it together. Whether both parties have executed the instrument will be a question of fact to be determined on evidence if such a determination is warranted from the pleadings of the particular suit. Merely because the document shows only the signature of one of the parties it is not enough to conclude that the non-signing party has not joined in the execution of the instrument. In this connection it is appropriate to refer to a three-Judge Bench decision of this Court in Asa Ram v. Ram Kali, AIR 1958 SC 183. A Kabuliat was executed by the lessee in favour of their lessors, but the latter did not execute any instrument in favour of the lessees. It was contended that the lessees could not claim the status of tenants solely on the strength of the Kabuliat which was only a unilateral undertaking. But the evidence showed that the lessors had accepted the Kabuliat and received rent as prescribed therein. On the aforesaid facts this Court overruled the contention that the lessees could not claim the status of tenants."
In view of the aforesaid observations of the Supreme Court in a case where even the law requires compulsory registration of a document and bilateral execution thereof, there is no force in the contention of Mr. Banerjee that an agreement for sale which is not even required to be registered should be essentially signed by both the parties.
In the case of Tarsem Singh (supra), the Supreme Court was dealing with a case where a party to the contract alleged mistake of fact in entering into the agreement. In that background, the Supreme Court in paragraph 12 of the judgement, relied upon by Mr. Banerjee, made the following observations:
"'Contract' is a bilateral transaction between two or more than two parties. Every contract has to pass through several stages beginning with the stage of negotiation during which the parties discuss and negotiate proposals and counter-proposals as also the consideration resulting finally in the acceptance of the proposals. The proposal when accepted gives rise to an agreement. It is at this stage that the agreement is reduced into writing and a formal document is executed on which parties affixed their signatures or thumb impression so as to be bound by the terms of the agreement set out in that document. Such an agreement has to be lawful as the definition of contract, as set out in Section 2(h) provides that "an agreement enforceable by law is a contract". Section 2(g) sets out that "an agreement not enforceable by law is said to be void"
The aforesaid observations do not suggest that in order to constitute a valid written agreement, it must be signed by both the parties and that if one of them signs and hands over the same to the other and the other does not dispute the content and execution of such agreement, even in such a case, it should be held to be invalid simply because it was not signed by both the parties. Sagir Ahmed, J., who made the aforesaid observations in the case of Tarsem Singh (supra), himself delivered the judgement in the case of Rajendra Pratap Singh, explaining that after affixation of the signature on a document by a party, if the same is handed over to the other party and the other party does not dispute the same, it will amount to a valid contract even if the law required that such agreement must be registered after being executed by both the parties. We, therefore, find no substance in the aforesaid question of law raised by Mr. Banerjee.
The next question is whether Exbt.-1 was factually executed by the defendant no.1 without being compelled by coercion as alleged.
According to the defence taken by the defendant no.1 in his written statement, on March 29, 1999 the plaintiff approached him for purchasing the property when he expressed his inability to sell the same as he had already entered into an agreement with the defendant nos. 2 and 3. The plaintiff, according to the defendant no.1, on March 29, 1999 compelled him to go the Machine-shop of one Ajit Bhattacharya for negotiation and on arriving there, he found himself surrounded by ten persons and was forced to sign on the typed document without going through its content. Subsequently, on April 3, 1999 the plaintiff invaded into the suit property and cut down trees and dug the land and consequently, the defendant no.1 lodged a G.D in the local police station on April 9, 1999 and also filed application under Section 144 of the Code of Criminal Procedure on April 12, 1999. The defendant no.1 also lodged complaint before the local Municipality. The defendant no.1 further filed criminal case against the plaintiff and his associates under Sections 384/341/34 of the Indian Penal Code which was pending. On April 23, 1999, the plaintiff came to the house of the defendant no.1 and had thrown some xerox copy of the papers and a bundle containing Rs.10000/- in his house. From those documents, he for the first time came to learn the contents of the documents he was forced to sign earlier. According to the defendant no.1, he subsequently returned the said amount of Rs.10000/- by cheque but the plaintiff returned the same.
In his cross-examination, the defendant no.1 stated that he could not remember the date, month or the year when the plaintiff had thrown the money and the papers in his house and that the inmates of his house told him that the money and the documents were thrown into the house. In answer to the question put to him to disclose the name of the member of his family who intimated such fact, he refused to answer the question and told that he would not examine such member of his family. In view of the aforesaid stance taken by the defendant no. 1 in his cross-examination, we are unable to accept his contention that the money and the papers were thrown to his house. It appears that the defendant no.1 returned Rs.10,000/- by cheque after selling the property to the defendant nos.2 and 3 which was returned by the plaintiff. There is no dispute that the signature appearing on the Exbt.-1 was a genuine one. Thus, the execution of the Exbt.-1 by putting signature on it and acceptance of the earnest money of Rs.10,000/- having been proved, it was the burden of the defendant no.1 to prove that the same was vitiated by coercion; but he could not discharge such burden by leading any corroborative evidence of any person. The defendant no.1 even refused to disclose the name of his family-member in whose presence the plaintiff allegedly had thrown the money. Therefore, we find no reason to defer from the finding of the learned trial judge that the Exbt.-1, the agreement for sale between the plaintiff and the defendant no.1, was a valid agreement and that the defendant no.1 accepted the sum of Rs.10000/- as earnest money.
We next proceed to decide whether the plaintiff was at all material time ready and willing to perform his part of the contract.
The plaintiff in his examination-in-chief specifically stated that he was always ready and willing to perform his part of the agreement. The suit has been filed within five months of the execution of the agreement. In paragraph 10 of the plaint, the plaintiff averred that he was always ready and willing to perform his part of the agreement. In the written statement, the defendants never alleged the financial incapability of the plaintiff to purchase the property and dealt with the said averment by contending that as the agreement was a void one, no question of its performance arose. In cross-examination of the plaintiff the only question in this regard put to him was that whether he filed document to show his financial capability which was answered in negative. As in the defence, no such plea was taken, the plaintiff had no occasion to deposit the money in Court and even, neither any suggestion was given to him that he had no financial ability to pay the agreed amount nor was any application filed by the defendants asking the plaintiff to show his capacity to pay the amount. We, therefore, find no reason to disagree with the view taken by the learned Trial Judge that the plaintiff was always ready and willing to perform his part of the contract.
The next question is whether there was really any prior agreement for sale between the defendant no.1 on the one hand and the defendant no.2 on the other, on March 10, 1999, as alleged.
Exbt.-B is the alleged agreement dated March 10, 1999 signed not only by the defendant no.1 but also the defendant nos.2 and 3 by which the defendant no.1 has agreed to sell the suit property to the defendant nos.2 and 3 at the price of Rs.3,50,000/- and has admitted receipt of a sum of Rs.20,000/- in cash. In cross-examination, the defendant no.1 as D.W.-1, however, stated that he received a sum of Rs.50,000/- as earnest money which is contradictory with the statement made in the final sale-deed as well as the Exbt.-B. He further stated that he received Rs.3,50,000/- on May 21, 1999 which is still a contradictory statement indicating that on the date of execution of the sale-deed on May 3, 1999 he received nothing. What is strange is that he further stated in cross- examination that he knew the defendant nos. 2 and 3 from the date when they purchased the suit property. The said statement clearly indicated that the agreement dated March 10, 1999 was a subsequently manufactured and antedated one. If he came to know the defendant nos.2 and 3 from the date they purchased the property i.e. May 3, 1999, there was no occasion for a joint execution of the deed of agreement on March 10, 1999 by putting signature by all the three defendants and acceptance of Rs.20,000/- as indicated in the agreement. Moreover, if Rs.50,000/- were received as earnest money as stated in the cross-examination, there was no occasion for acceptance of further Rs.3,50,000/- on May 21, 1999 as stated by the D.W.-1 in the cross- examination. In spite of such statements made by the D.W.-1 in his cross- examination which go against the interest of the subsequent purchasers, they did not cross-examine the D.W.- 1 on those points. Therefore, in the face of such evidence on record, we are left with no other alternative but to hold that the purported agreement for sale dated March 10, 1999 was a subsequently manufactured and antedated document.
The last and the most important question is whether the defendant nos.2 and 3 are bona fide purchasers for value without notice of the agreement between the plaintiff and the defendant no.1.
Whether the defendant nos.2 and 3 were ignorant of agreement between the plaintiff and the defendant no.1 is basically a question of fact and such fact is within the special knowledge of the subsequent purchasers. In the case before us, although they had entered appearance and filed written statement, during the pendency of the suit, they executed a power of attorney in favour of their father authorising him to conduct the case on their behalf. It appears from the said power of attorney that the defendant no.2 is a Ground Engineer posted in Dum Dum Airport within the jurisdiction of the learned trial judge and the defendant no.3 is an Engineer of the Public Works Department of the Government of West Bengal then posted at Islampur in the district of North Dinajpur. Those defendants did not appear to depose and to face cross- examination of the plaintiff. In this type of a case, where the success of a party depends upon establishment of some fact which is within the special knowledge of such party, he cannot avoid cross-examination at the instance of his opponent by merely executing a power of attorney in favour of another for the purpose of deposing in the litigation on his behalf based on hearsay. In this case, both the brothers are in service within the State of West Bengal and one of them is posted within the jurisdiction of the same District Court. Therefore, in such a situation, there was no just ground for not appearing as a witness. One may appoint a constituted attorney for taking steps in litigation on his behalf but at the time of evidence, such person should himself appear in the witness box if his evidence is crucial and based on his special knowledge which cannot be given by others without violating the provision contained in Section 60 of the Evidence Act. Moreover, the onus was upon the defendant nos. 2 and 3 to prove that they are bona fide purchasers for value without notice. If they insist on believing their assertion, they cannot refuse to offer themselves for cross-examination of the opponent. In other words, they are asking the court to believe their version against the plaintiff but without giving the plaintiff an opportunity to cross- examine them. At this stage, we may profitably refer to the decision of the Supreme Court in the case of Sarita Rani vs. Deepak Rai reported in 2001(3) Indian Civil Cases 501 where in a similar situation like the present one, the Apex Court set aside the judgement and decree passed by the High Court for upholding the plea of bona fide purchase without notice when the subsequent purchaser did not appear to give evidence.
Apart from the fact that the subsequent purchasers did not appear to give evidence, we find that it will appear from the evidence given by their father that he had made the following statements in his cross-examination:
"I saw the plaintiff on 19.5.1999 and 24.5.1999 in the suit premises as his identity was (sic) been described by the defendant no.1. The identity regarding the physical appearance of plaintiff was given to me by the defendant 1 on 3.5.1999 when my deed was prepared. Such description of plaintiff was given to me by defendant no. 1 on 3.5.1999 because on earlier occasion plaintiff created disturbance, G.D. was lodged with P.S. and proceedings u/s 144 Cr.P.C was also instituted and complaint was lodged with Baranagar Municipality. The documents relating to 144 proceedings, complaint with Municipality and copy of the G.D. were perused by me as well as my Advocate. My Advocate and I also perused the previous deed. My advocate drafted the deed of sale after perusing all those deeds".
From the aforesaid admission on the part of the father of the subsequent purchasers, we have no hesitation in concluding that the subsequent purchasers at the time of preparation of the sale deed well knew that dispute regarding possession over the suit property was going on between the plaintiff and the existing tenants in one side and the defendant no.1 on the other. It was, at this stage, their duty to enquire from the tenants about their nature of possession over the property. It is the specific case of the plaintiff that pursuant to the agreement between him and the defendant no.1, there was agreement between him and the existing tenants for purchase of part of the suit property. The Supreme Court in the case of R.K. Mohammad Ubaidullah and others vs. Hajee Abdul Wahab and others reported in AIR 2001 SC 1858, in a somewhat similar situation, made the following observations:
"In the ordinary course a reasonable prudent person placed in the position of the plaintiff would not have failed to mention about the existence of the prior agreement in his favour particularly when he is using the very same godown as a tenant under the first defendant for the last 20 years prior to the filing of the suit. Similarly the defendants 2 to 4 intending to purchase the property in possession of a tenant would not have failed to make inquiry as to any further interest in relation to possession or title of the plaintiff over the suit property. It is not uncommon that where a tenant is in possession of the property, that too for a long time, using it for business purpose would always like to purchase the property getting all advantages if offered for sale. Normally the landlord or owner of the property would also be interested in selling the property to a person in possession if a reasonable price is given to avoid litigation and to have smooth transaction. In certain statutes even provisions are made to give first option to a tenant to purchase the property. In such situation the defendants 2 to 4 would have made inquiry with the plaintiff about the nature of his possession and title under which he is in possession on the date of sale deed (Exhibit B-1) executed in their favour. If they had made inquiry plaintiff would have certainly revealed about Exhibit A-3 the prior agreement in his favour. If such inquiry was not made it only means that the defendants 2 to 5 wilfully abstained from making such inquiry or they grossly neglected to do so."
We, therefore, uphold the finding of the learned trial judge that the defendant nos.2 and 3 were not bona fide purchasers for value without notice. Over and above, we find that they tried to frustrate the agreement between the plaintiff and the defendant no.1 by manufacturing an earlier agreement in their favour.
Before parting, we propose to answer a pure question of law raised by Mr. Banerjee as to maintainability of the suit out of which the present appeal arises. According to him, the agreement was one for construction and thus, the suit is hit by Section 14(3) (c) of the Specific Relief Act, 1963. We are afraid, the aforesaid contention is not tenable because the contract was not for enforcement of any construction or execution of any other work but was one for sale of the property to the plaintiff's nominees at the price of Rs.3 lakh with permission to the plaintiff to evict the existing tenants by way of negotiation and even to demolish the building if the tenants are agreeable to vacate and to make the suit property into plots. The owner of the building has not asked the plaintiff to make any construction of building on his behalf but agreed to sell the property at total price of Rs. 3 lakh to his nominees without taking any responsibility of evicting the tenants. If the plaintiff is unable to evacuate the tenants, it is his responsibility to give Rs. 3 lakh to the plaintiff by purchasing the property either through himself or his nominees. Therefore, it is essentially an agreement for sale of the property in favour of the plaintiff's nominees and consequently, Section 14(3) (c) of the Specific Relief Act has no application to the facts of the present case.
We, therefore, allow the appeal and dismiss the cross-objection filed by the defendant nos. 2 and 3 by setting aside the decree passed by the learned Trial Judge and passing a decree for specific performance of the agreement for sale between the plaintiff and the defendant no.1 by directing the defendants to execute a sale deed in favour of the nominees of the plaintiffs by accepting a sum of Rs.2,90,000/- within one month from the date the plaintiff will pay the deficit stamp-duty and the penalty assessed by the Collector in terms of the provision of the Stamp Act (West Bengal Amendment) pursuant to the reference already made by the trial court. In default of such execution, the plaintiff would be at liberty to get it executed through court. The defendants are directed to pay costs of this appeal which we assess at Rs.20,000/-.
(Bhaskar Bhattacharya, J.) I agree.
(Rundrendra Nath Banerjee, J.)