KHANINDRA NATH KHOT Vs. SUJEET KUMAR CHOUDHURY

JUDGEMENT

(1.) This is an application under Sec. 115 of the Code of Civil Procedure, 1908 (for short, 'the Code') challenging the order dtd. 16/9/2023 passed in Misc. (J) Case No.64/2022 arising out of Title Suit No.23/2019. By the said impugned order, the learned Trial Court had rejected the application filed under Order VII Rule 11 of the Code by the defendant No.1.

(2.) From a perusal of the plaint and the documents relied thereupon, it appears that the defendant No.1 for himself and the defendant Nos.2, 3 and 4 had entered into an agreement dtd. 17/4/2012 with the plaintiff for sale of the land described in Schedule-A to the plaint. It further appears from the plaint that out of the total consideration, an amount of Rs.6,50,000.00 was duly received by the defendant No.1. Further to that, the defendant No.1 for and on behalf of the other defendant Nos.2, 3 and 4 had extended the performance of the said agreement for sale vide a Deed of Extension of the earlier agreement for sale dtd. 15/4/2015 thereby acknowledging that he has duly received the amount of Rs.6,50,000.00. Subsequent thereto, vide another agreement, the period of performance of the said agreement for sale was further extended to another 6 months. Further to that, vide another extension dtd. 11/4/2016, the defendant No.1 for himself and on behalf of the other defendant Nos.2, 3 and 4 duly acknowledged that the defendant Nos.1 to 4 shall execute the registered Deed of Sale in favour of the plaintiff after obtaining the requisite permission for sale. However, the defendant Nos.1 to 4 did not sell the said property described in Schedule-A to the plaint to the plaintiff and instead by Deed of Sale bearing Deed No.126 (i) 113 of the year 2009 executed on 17/1/2019 , transferred the said Schedule-A land in favour of the defendant Nos.5 to 8. It is under such circumstances, the suit was filed seeking specific performance of the agreement to sale as well as the subsequent extensions so granted and also in the alternative seeking compensation and damages to the tune of Rs.60,01,750.00 and for refund of the advance amount with interest and compensation and damage as may be calculated by the Court in addition to compensation under Sec. 73 of the Indian Contract Act, 1872. The said suit was registered as Title Suit No.73/2019 before the Court of the Civil Judge at Tezpur.

(3.) Pursuant thereto, the defendant No.1 filed an application under Order VII Rule 11 of the Code for rejection of the plaint on the ground that the reading of the plaint did not disclose any cause of action and the suit was barred by limitation. The learned Trial Court vide an order dated 16.0/9/2023 rejected the said application filed for rejection of the plaint on the ground that perusal of the plaint disclosed a cause of action and further the suit was not barred by limitation. The learned Trial Court further observed that the plaintiff also sought for the alternative relief for refund of the advance amount. It is against the order dtd. 16/9/2023, the petitioner herein who is the defendant No.1 in the suit had approached this Court by filing the instant proceedings under Sec. 115 of the Code.