SUBODH CHANDRA KAMILA Vs. SMT KAMALA KAR

JUDGEMENT

(1.) . - This second appeal has been preferred challenging the judgment and decree dated 17.11.1981 passed by the Learned Subordinate Judge, Contain in O.A. No. 435 of 1980 (O.A_ No. 46/1981) affirming the judgment and decree passed by the Learned Munsif, Second Court at Contain in O.S. No. 81 of 1976.

(2.) The case as has been made out in the plaint in brief is inter alia as follows One Sibapada Chakraborty agreed to sell the land mentioned in the scheduled of the plaint at a consideration of Rs. 4,500.00 on 16.4.1973 corresponding to 3rd Baishak, 1380 B.S. and executed a bainanama on receiving Rs. 4,000.00 as earnest money in presence of witnesses and within the knowledge of defendant/respondent No. 5, Sri Gour Hari Shil. Deceased defendant Sri Sibapada Chakraborty was in urgent need of money at that time and the plaintiff having no sufficient fund only paid Rs. 4,000.00 towards the consideration money of Rs. 4,500.00 and it was agreed that the plaintiff/appellant herein will pay the balance consideration money within the month of Falgun, 1380 B.S. when Sibapada Chakraborty would execute a Kobala. Plaintiff was ready with the total balance consideration money within time and asked Sibapada Chakraborty to execute the Kobala but he delayed the matter on different grounds and ultimately in the month of April, 1976 he refused to execute the same. According to the plaintiff he has performed his part of contract and he was always ready and willing to perform the essential terms of the contract but Sibapada Chakraborty did not execute the sale deed and as such the instant suit for Specific Performance has been filed by the plaintiff.

(3.) Defendant Nos. I to 4 contested the suit by filing written statement denying all the material allegations contending inter alia that Sibapada Chakraborty asked for loan of Rs. 2,000.00 from the plaintiff who demanded a blank stamp paper signed and thumb impressed and three cartridge papers as a security. Finding no alternative said Sibapada Chakraborty handed over one blank thumb impressed and signed stamp paper and cartridges to the plaintiff and received Rs. 2,000.00 as loan. As late Sibapada Chakraborty could not refund loan-and interest in time, plaintiff demanded execution of Kobala as a further security. Accordingly, Kobala was executed on 30.8.1971 but the same is nothing but a mortgage by conditional sale. Plaintiff kept security papers with him. Taking advantage and with the help of thumb impressed and signed papers of the deceased defendant No. I plaintiff prepared an ante dated, collusive and without consideration Bainanama. Accordingly, the defendant Nos. 1 to 4 prayed for dismissal of the suit with costs.