PRASAD MAITY Vs. KRISHNAPADA MONDAL

JUDGEMENT

(1.) The defendant in a money suit is the petitioner in this revisional application under Article 227 of the Constitution. He seeks to question the legality and/or propriety of order dated March 1, 2011 passed by the learned Trial Judge whereby he declined to impound an agreement for sale dated March 5, 2007 on the ground that the suit was not for enforcement of the agreement but for realization of money advanced by the plaintiff to the defendant and, thus, proceeded to admit the same in evidence.

(2.) The plaint case is that the plaintiff and the defendant had entered into an agreement for sale of an immovable property measuring 06 cents for a total consideration of Rs. 3,10,000/-. It is alleged in the plaint that the defendant had received Rs. 2,70,000/- as advance on March 5, 2007 and it was agreed by and between the parties that the balance consideration of Rs. 40,000/- would be paid to the defendant within November 30, 2008, where after the defendant would execute the sale deed within that date. It is further alleged that the plaintiff had requested the defendant number of times to take and receive the balance price and to execute the sale deed but he did not pay any heed. This resulted in, a legal notice dated November 14, 2008 being served upon the defendant through the plaintiff's advocate whereby the defendant was requested to be present at Memari sub-registry office at the sheerest of the deed writer named therein for acceptance of the balance price and for execution of the sale deed. It was further mentioned in the legal notice that if the defendant did not choose to execute the sale deed, the money accepted by him may be refunded. Neither did the defendant remain present at Memari sub-registry office nor did he refund the money received by him, forcing the plaintiff to institute the suit for recovery of Rs. 2,70,000/- together with interest thereon computed at 6 percent per annum w. e. f. March 5, 2007 to December 15, 2008 totaling to Rs. 2,82,145/-.

(3.) The suit is being contested by the defendant. He filed a written statement denying and disputing the material contents of the plaint. It is the specific claim of the defendant that there was no agreement between him and the plaintiff in respect of sale of the property in question in any manner and no such agreement was ever executed by him. According to him, the story of transfer is concocted and the agreement dated March 5, 2007 is a manufactured document, having no force to be acted upon. It is his further claim that the sentence appearing at the fifth line of page 3 of the so called agreement appears to have been written subsequently and, therefore, there is an interpolation. There being no meeting of minds between the parties, question of sale of the property in question does not and cannot arise and he, accordingly, prayed for dismissal of the suit.