SUNIL CHANDRA Vs. HEMENDRA KR DEB

JUDGEMENT

(1.) This is an appeal by the defendant against the judgment and decree passed by the learned Subordinate Judge, 2nd Court Alipore, in Title Suit No. 3 of 1980 for specific performance of a contract for sale.

(2.) Premises No. 91, Ekdalia Road, P. S. Ballygunge Calcutta consists of two units, one of these units being comprised of the ground floor and the first floor with separate entrance and staircase on the east, facing the road and a car drive passage on the south and the other unit consisting of the second and third floor flats at the top with separate staircase and entrance, facing south on the passage, leading from the main road, and open space at the back and vacant land to the north of the building. The defendant-appellant, Sunil Chandra Ghosh, was the owner of the building at premises No. 91, Ekdalia Road. On 3-3-1972, there was an agreement for sale of the ground floor and the first floor of the premises to the plaintiff-respondent for a sum of Rs. 75,000/-. In accordance with this agreement for sale, a deed of conveyance was executed on 22-9-1972 by the defendant in favour of the plaintiff-respondent in respect of the ground floor and the first floor with separate entrance and staircase. The plaintiff respondent's case is that on the same day (22-9-1972) the defendant entered into another agreement with the plaintiff to sell the other part of the premises No. 91, Ekdalia Road, consisting of the second and third floor flats as well as the vacant land for a sum of Rs. 1,00,000/- and that on the date of execution of this agreement for sale, a sum of Rs. 1,000/-was paid by the respondent to the appellant as earnest money. In terms of the agreement for sale, the appellant was to sell the second and third floor along with the vacant land to the respondent within a period of ten years, after the expiry of two years from the date of the agreement. On alleging the failure of the appellant to execute and register a deed of conveyance in respect of the third and fourth floor and the vacant land, in pursuance of this agreement for sale dated 22-9-1972, on receiving the balance sum of Rs. 99.000/- from the respondent, the plaintiff filed a suit for specific performance of the contract for sale, in respect of the agreement for sale dated 22-9-1972.

(3.) The suit was contested by the appellant by filing a written statement, which was subsequently amended for incorporating therein particulars of fraud. The defence was that the consent of the appellant to the alleged agreement dated 22-9-1972 was obtained by coercion, fraud and misrepresentation as well as undue influence. The appellant had no opportunity to appoint any independent and competent lawyer of his choice. The appellant failed to appreciate the true meaning, scope and effect of the agreement for sale in the absence of any advice from any independent and competent Legal Adviser. The period of ten years for completion of the sale was motivated, unconsionable and illegal. Great hardship would be caused if the suit for specific performance was decreed, as the appellant has no other house or landed property anywhere else. The payment of the sum of Rs. 1,000/- as earnest money was denied. The defence was that prior to the date of execution of the alleged agreement dated 22-9-1972, the respondent assured the appellant that the appellant would continue to live with his dependents in the second and third floor of the building (the second and third floor being hereinafter referred to as the suit-premises for the sake of convenience) during his lifetime and that peaceful possession of the appellant therein would not be disturbed by the respondent in any way. It was alleged that as the appellant was a bachelor and cordial relationship developed between the appellant and the respondent after the respondent came to occupy the ground floor and first floor of the premises in February, 1972, the appellant genuinely believed in the assurance of the respondent and was persuaded by the respondent to enter into the alleged agreement for sale.