SAMIR BOSE Vs. IRA MAJUMDAR

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 31-7-96 and 6-8-96 respectively passed by Sri A.K. Mondal, Assistant District Judge, 3rd Court, Alipore in T.S. No. 232 of 1986.

(2.) Plaintiff/respondent No. 1 brought the suit for specific performance of contract dated 14-12-85 by executing and registering the deed of conveyance in favour of the plaintiff within a specified period to be stipulated in the decree alternatively if the contract was found vitiated by impossibility, a decree for Rs. 1,20,000.00 being the sum of the total amount towards the consideration money and a further decree for interest at the rate of 18 per cent per annum on the aforesaid sum on and from 14-12-85 till the realisation of the amount and also for some other reliefs incidental to the principal relief sought for in the suit. Briefly stated the case of the plaintiff was that the plaintiff on getting an information from an advertisement in the newspaper that a flat in Madhumita Apartment at 36B, Selimpore, P.S. Kasba, Calcutta-700 031, fully described in the schedule of the plaint, was to be sold to an intending purchaser by its owners defendant Nos. 2 to 4 of the suit, went to see the flat for herself and met the care-taker of the building. The plaintiff/respondent also got an inspection of the flat which was situated on top floor of the building through the help of the care-taker. The plaintiff made up mind to purchase the flat and when she was walking down the stair case accompanied by the care-taker, she met the promoter and constituted attorney, the defendant No. 4 / respondent No. 5. The plaintiff expressed her desire, to purchase the flat. The promoter offered her a flat on the second floor. The plaintiff after inspection decided to accept the offer and paid the said promoter the defendant No. 4/respondent No. 5 a sum of Rs. 10,000.00 only by cheque and sometime thereafter a further sum of Rs. 20,000.00 only by cheque as well as cash and in this way made a total payment of Rs. 30,000.00 to the defendant No. 4/ respondent No. 5 towards the part payment of the entire consideration money of Rs. 1,20,000.00 for the aforesaid flat. On payment of Rs. 30,000.00 as earnest money a formal agreement was executed in between the plaintiff and the defendant No. 1 wherein the defendant No. 4 / respondent No. 5 for self and as the constituted attorney for defendant Nos. 2 and 3 put her signature and through such agreement, the promoter agreed to sell and the purchaser agreed to purchase and acquire the above mentioned flat on Madhumita Apartment for a total consideration money of Rs. 1,20,000/ the deed contained recital regarding payment of Rs. 30,000.00 to the promoter and it was agreed, the plaintiff would pay-the remaining Rs. 90,000.00 at the time of possession when final deed of conveyance would be made within 45 days from the date thereof. It is further alleged that after the execution of the said agreement, the plaintiff by way of bank draft dated 12-3-86 of the State Bank of India paid the entire balance of the consideration money and in this way concluded her portion of performance in the contract. The defendant No. 4 / respondent No. 5, the promoter on the other hand wanted sometime to give the finishing touches in such flat and hand over the same to the plaintiff at an early date. Eventually, it was decided that the promoter would handover the flat on 14-9-86. It is further alleged that as per agreement between the parties, the plaintiff intended to have the interior decoration of the flat in question according to her own choice and paid a sum of Rs. 10,000.00 towards interior decoration of the same under the supervision of the defendants. It is further alleged that it was agreed by and between the parties that the possession of the aforesaid flat would be delivered to the plaintiff on 14-9-86. On 13-9-86 at about 5 P.M., the plaintiff along with her son went to the building of defendant No. 4 / respondent No. 5 and told the said defendant that she would move into the flat on the following day, that is, on 14th Sept., 1986 as agreed and wanted the key to the flat from the defendant No. 4 / respondent No. 5. But the defendant No. 4 /respondent No. 5 refused to hand-over the key stating that it would not be possible for her to give the plaintiff the possession of the flat; instead the plaintiff could take back her money. The plaintiff was constrained to file the suit because of the refusal by the defendant No. 4 / respondent No. 5 to handover the vacant possession of the flat as she got information to the effect that the defendants were trying to sell the suit property to third party at a higher price.

(3.) The defendant No. 7 / appellant contested the suit by filing a written statement. Although the defendant No. 4 / respondent No. 5 filed a written statement but she did not contest the suit. Through the written statement filed on behalf of the defendant No. 7 such defendant alleged that by an agreement dated 30th June, 1985 made between the defendant No. 4 /respondent No. 5 for sale and as constituted attorney of the defendant Nos. 2 and 3 of the first part and the contesting defendant and his wife Ava Bose of the second part, the defendant No. 4 / respondent No. 5 agreed to sell the flat No. 301 on the second floor at premises No. 36B, Selimpore Road, P. S. Kasba, Calcutta - 700 031 to the defendant and his wife. Pursuant to that agreement the defendant and his wife duly paid the entire consideration payable under such agreement and there- after the defendant and his wife were put in possession of the said flat. By a registered deed of conveyance dated 17th day of Feb., 1990 made between Shyamali Das, referred to in the deed as the Vendor of the one part and the defendant and his wife therein jointly referred as the purchaser of the other part, the said defendant No. 4/ respondent No. 5 duly sold and transferred the flat in question in favour of the defendant and his wife. The defendant though the written statement denied that there was any agreement by and between the plaintiff and the defendant No. 4 /respondent No. 5. Alternatively it was alleged that in any event, the defendant No. 7 and his wife were bona fide purchasers of the said flat for value without notice and/or knowledge of the existence of the alleged agreement pleaded by the plaintiff. It is also that the defendant's wife died on 13th July, 1994 and the defendant and his son and daughter are now the joint owners of the said flat who have been occupying the same as owners since Feb., 1990.