Gauhati High Court
Rina Bora vs Sangeeta Chowdhury And Anr on 4 December, 2018
Equivalent citations: AIRONLINE 2018 GAU 817, (2019) 194 ALLINDCAS 650, (2019) 5 GAU LR 607, (2019) 5 GAU LT 88
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/5
GAHC010258622014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 17/2014
1:RINA BORA
W/O LATE CHANDRA MAHAN BORA, R/O SOUTH HAIBARGAON, A.T.
ROAD, KHUTIKATIA, OPPOSITE SBI, HAIBARGAON BRANCH,
P.S.NAGAON,SADAR, DIST. NAGAON, ASSAM.
VERSUS
1:SANGEETA CHOWDHURY and ANR
W/O SRI SANKAR LAL CHOWDHURY, R/O LOWKHOWA ROAD,
HAIBORGAON, P.S. NAGAON SADAR, DIST. NAGAON, ASSAM.
2:RAJ RITU BORA
S/O LT. CHANDRA MOHAN BORA
R/O SOUTH HAIBORGAON
A.T. ROAD
KHUTIKATIA
OPP. SBI
HAIBORGAON BRANCH
P.S.NAGAON SADAR
DIST. NAGAON
ASSAM
Advocate for the Petitioner : MR.U RAJBANSHI
Advocate for the Respondent : MRJ P CHOUHAN
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
For the Appellant : Mr. KK Dey
Advocate
For the Respondents : Mr. DK Jain
Advocate
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Date of Hearing : 04.12.2018
Date of delivery of
Judgment and Order : 04.12.2018
J
:: UDGMENT & ORDE R ::
(ORAL)
Heard Mr. KK Dey, learned counsel appearing for the appellant. Also heard Mr. DK Jain,
learned counsel appearing on behalf of the respondents.
2. The present appellant is the defendant in Title Suit No. 51/2008 preferred by the
plaintiffs/ respondents for specific performance of contract for sale with respect to a plot of
land described in the schedule of the plaint. In the said suit, the present appellant is the
defendant no. 1 and her son is impleaded as defendant no. 2. The said defendants proposed
to sell the suit land to the plaintiffs. The plaintiffs/ respondents agreed to the proposal to
purchase the suit land at a total sale consideration of Rs. 3,60,000/-. The defendant/
appellant along with her son accepted the offer. On receipt of an advance sale consideration
of Rs. 1,50,000/-, the defendant/ appellant executed a registered agreement for sale thereby
promising that the sale transaction would be completed after obtaining necessary permission
from the authority concerned and on receipt of Rs. 2,10,000/-. The defendant/ appellant
failed to apply for the required sale permission but on 07.09.2007 she approached the
plaintiff/ respondent and requested to pay an amount of Rs. 2,00,000/- out of the remaining
sale consideration in order to obtain permission. Plaintiff/ respondent in order to show the
willingness paid the sum of Rs. 2,00,000/- and the defendant/ appellant executed a money
receipt in favour of the plaintiff/ respondent. The plaintiff/ respondent thereafter requested
the defendant/ appellant to accept the balance sale consideration of Rs. 10,000/- and to
complete the sale transaction by executing and registering the sale deed. The defendant/
appellant along with her son started avoiding the plaintiff/ respondent and finding no
alternative a notice was issued by the plaintiff/ respondent on 20.06.2008 requesting the
defendant/ appellant to come forward and complete the sale transaction. There was no move
on the part of the defendant/ appellant following which the suit was preferred.
3. On receipt of the summons, the defendant/ appellant along with her son, the
defendant no. 2 in the suit, entered appearance and sought time to file written statement but
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subsequently they remained absent and it was ordered that the suit shall proceed ex-parte.
Though the defendant/ appellant filed an application to set aside the order of ex-parte order
the same was rejected by giving the liberty to cross examine the witnesses of the plaintiff/
respondent. After adducing evidence by the plaintiff/ respondent and hearing the parties to
the suit, a decree for specific performance of contract was passed in favour of the plaintiff/
respondent and the operative portion of the judgment is reproduced hereinbelow:-
ORDER
Accordingly, the suit is partly decreed ex-parte in favour of the plaintiff. It is hereby declared that the plaintiff is entitled to a decree for Specific Performance of Contract against the defendants directing them to obtain necessary permission and to execute the Sale Deed of Schedule land on receipt of balance consideration amount in favour of the plaintiff.
It is further directed that the defendants will execute and register the Sale Deed within 3 months from the receipt of the notice.
The suit is accordingly disposed ex-parte without cost.
Prepare the decree accordingly.
4. The plaintiff/ respondent put the said decree for specific performance of contract into execution in Title Execution Case No. 8/2011 and on receipt of the notice from the Executing court it is contended by the defendant/ appellant that notice about the said decree came to their knowledge following which they preferred Title Appeal No. 6/2012 along with a delay condonation petition to condone delay of 398 days in preferring the said Title Appeal No. 6/2012 in the court of learned Additional District Judge, Nagaon, Assam. The delay condonation application was registered as Misc. Case No. 106/2012 and after hearing the parties, the learned first appellate court dismissed the said application and as a consequence the Title Appeal No. 6/2012 stood dismissed. Being aggrieved, the defendant/ appellant has preferred this second appeal which was admitted on 04.04.2014 on the following substantial questions of law:-
(1) Whether the impugned judgment and decree dated 3.5.2011 is not in conformity with the provisions of Order XX Rule 12A?
(2) Whether the findings of the learned lower appellate court that there is no sufficient ground to extend the period of limitation is perverse?
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5. Mr. Dey, learned counsel for appellant, citing the provision of Order XX Rule 12A of the Code of Civil Procedure (CPC) sought for answering the substantial question of law no. 1 in favour of the defendant/ appellant. It is submitted that as per the operative portion of the judgment passed by the learned trial court there is no direction to the plaintiff/ respondent to pay the due amount within a specific time period. Instead it is mentioned that the defendant will execute and register the sale deed within 3 (three) months from the date of receipt of the notice. It is submitted that such decree is totally in contradiction to that as stipulated under Order XX Rule 12A of the CPC. Accordingly, Mr. Dey sought for setting aside the said judgment and decree. Regarding the second substantial question of law, Mr. Dey submits that he would press only the substantial question of law No. 1 but not the second one on the ground that it has no foundation in the pleadings of the defendant/ appellant.
6. Mr. Jain, learned counsel for the respondents, submits that there is no wrong on the part of the learned courts below inasmuch a time period of 3 months is specified therein to complete the sale transaction by the defendant/ appellant from the date of receipt of the notice. Accordingly, there should not be any interference by this court.
7. Considered the submission of both the learned counsel appearing for the parties. A suit for specific performance of contract, more specifically, for sale has two parts engrafted in it viz - the agreement for sale with terms stipulated therein and the willingness of the plaintiff- purchaser to perform the said stipulations. The willingness of the plaintiff continues even after passing of the judgment and as such, under Section 28 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") it is provided that if the plaintiff/ purchaser does not comply with the time period so specified by the court while passing a judgment and decree in suit for specific performance of contract, the defendant/ vendor has a right to come before the court and to seek rescission of the said contract on the ground of unwillingness on the part of the plaintiff/ purchaser. Keeping in view the provision stipulated under Section 28 of the Act, Order XX Rule 12A of the CPC must be looked into which mandates that in a decree for the specific performance of sale ordering payment of purchase money by the purchaser, a specific period for such payment must be made. Non-mentioning of a specific time period to complete the part of the plaintiff/ purchaser in a decree for specific performance of contract shall hit the provision stipulated under Section 28 of the Act. Under such circumstances, it can be deduced that while passing a decree for specific performance of contract for sale there Page No.# 5/5 cannot be any deviation from the stipulations made under Order XX Rule 12A of the CPC. In the present case in hand, it is seen that there is no such specific direction to the plaintiff/ purchaser to deposit the admitted left over consideration money in the court within a specific time period resulting prejudice to the defendant/ appellant to take the benefit as provided under Section 28 of the Act. Moreover, the relief for specific performance of contract is based to some extent on the principles of equity. Accordingly, I am constrained to hold that the substantial question of law no. 1 is to be decided in favour of the defendant/ appellant.
8. So far substantial question of law no. 2 is concerned, in view of the submission of Mr. Dey, I do not want to enter into it. Accordingly, this second appeal succeeds. The impugned judgment and decree passed by the learned first appellate court is set aside and the matter is remanded back to the first appellate court i.e. the court of learned Additional District Judge, Nagaon, Assam to hear the parties to the appeal and pass the judgment and decree afresh. The parties to the suit shall appear before the learned first appellate court on 07.01.2019 and thereafter on receipt of the LCRs, the appeal be disposed of within a period 60 days from the date of appearance of the parties.
9. Keeping in view the date of appearance of the parties in the learned first appellate court, Registry is directed to send back the LCRs immediately to the concerned court. No costs.
JUDGE Comparing Assistant