SUBHENDU KUMAR DUTTA Vs. DIPANKAR GHOSH

JUDGEMENT

(1.) The matter was taken up for hearing on a number of days but on none of those days respondents ever appeared. As such, this Court heard the learned Counsel for the appellant and decided the matter accordingly.

(2.) This appeal has been filed impugning the judgment and decree.vide Order No. 44 dated 21st September, 1992 passed by the Assistant District Judge, 3rd Court, Midnapore in T.S. No. 14 of 1986. By the said order the learned Judge was pleased to hold that the suit is not maintainable in law in view of the provisions of Benami Transaction (Prohibition of the Right to Recover Property) Act, 1988 (hereinafter referred to as the said Act). The suit was for specific performance of contract for sale of immovable property. The suit was filed by the plaintiff/appellant against Pranab Kumar Ghosh, Prabir Kumar Ghosh, Partha Pratim Ghosh and Vivekananda Mission Ashram. All these parties were made defendant Nos. 1,2,3 and 4 and one Prithwish Kumar Sen was made the proforma defendant No. 5. The suit property consists of vacant land with one storyed brick-built bungalow, lawn etc. .

(3.) The plaint case is that a Memorandum of Agreement dated 5.7.1982 was prepared and which was duly executed by the defendant Nos. 1 to 3 and the said Memorandum of Agreement was entered into between the plaintiff and the defendant Nos. 1 to 3 in respect of the sale of the suit property and the price was fixed at Rs. 2,15,000/- and in the plaint it has been stated that the plaintiff decided to purchase the property in the benami of proforma defendant No. 5. Pursuant to such agreement the plaintiff paid a sum of Rs. 10,000/- to the defendant Nos. 1 to 3 by bank drafts through his benamdar, the proforma defendant No. 5 and such payments had been acknowledged in the agreement by the defendants. After such agreement was entered into, the plaintiff came to know that the defendant Nos. 1 to 3 were going to transfer the suit property to the defendant No. 4 and the plaint case is that the defendant No. 4 was at all the material time aware of the agreement between the plaintiff and the defendant Nos. 1 to 3. The plaint case is that being aware of such illegal attempt of the defendant Nos. 1 to 3, plaintiff requested the defendants to take the balance consideration money and to execute the sale deed. As the defendants did not do so, the suit was filed.