BIBHASH RANJAJPAUL Vs. DIPAK PAUL

JUDGEMENT

(1.) The appellant-defendant being aggrieved by the judgment dated 6.3.2000 and the decree dated 24.3.2000 passed by the learned Civil Judge (Senior Division), Karimganj, in TS No. 44/96 decreeing the same for specific performance of contract has preferred this appeal.

(2.) We have heard Mr. N. Choudhury, Advocate for the appellant-defendant and Mr. G. M. Paul, advocate for the respondent- plaintiff.

(3.) The respondent-plaintiff filed the aforementioned suit pleading, inter alia, that the appellant-defendant, the owner of the suit premises described in the schedule to the plaint had entered into an agreement for the sale thereof in his favour at a price of Rs. 5,05,001.00 and executed a binama on 20.5.93 on receiving Rs. 1,00,000.00 as earnest money. It was agreed, inter alia, that the respondent-plaintiff would pay balance amount of Rs. 4,05,001.00 within three months from the date of execution of the binama upon which the appellant-defendant would execute the sale deed. The appellant- defendant thereafter enhanced the consideration price following which another binama fixing the price to be Rs. 5,35,000.00 was executed on 15.8.93. The appellant-defendant having received Rs. 2,70,000.00 in all as advance money it was stipulated therein that the respondent-plaintiff would clear up the balance consideration money of Rs. 2,65,000.00 within 30.9.94 and thereafter the appellant-defendant would execute the sale deed. It was further agreed that the respondent-plaintiff would pay a sum of Rs. 50,000.00 within next two months which in fact was paid by him on 15.10.93. A dispute thereafter arose between the parties and the same was referred to arbitration for resolution. In course of such proceeding, the respondent-plaintiff obtained a hand note dated 31.3.95 executed by the appellant-defendant acknowledging receipt of Rs. 3,20,000.00 from the respondent-plaintiff. The appellant defendant made a commitment to refund the afotrementioned amount within 31.12.95 failing which he would be liable to repay the same with interest. The appellant-defendant, however, failed to make the payment. Thereafter the respondent-plaintiff having approached the appellant-defendant on 10.4.96 for settling the matter, the latter agreed verbally to transfer the property involved as he had no resources to refund the amount of Rs. 3,20,000.00 received by him already. The appellant-defendant agreed to execute the sale deed by 30.9.96 and accordingly, the parties signed the permission form for such sale on the same date, i.e., 10.4.96. The ap- pellant-defendant further agreed to accept the balance consideration price of Rs. 2,1:5,000.00. Thereafter the respondent- pladntiff offered the balance of Rs. 2,1:5,000.00 to the appellant-defendant and requested him to execute the sale deed as per the verbal agreement dated 10.4.96 but the latter avoided to do so, specifically pleading, that, the respondent-plaintiff had always been ready and willing to pay the balance amount of Rs. 2,15,000.00 and was still ready to perform his part of the contract, a decree for specific performance of the agreement of sale of the suit property was prayed for. In the alternative, the respondent-plaintiffprayed for a decree for Rs. 4,00,000.00 (Rs. 3,20,000.00 being the advance money paid and Rs. 80,000.00 as a compensation). The appellant-defendant resisted the claim contending, inter alia, that there was no subsisting contract to be enforced by specific performance. Without offering any comment on the binama dated 20.5.93, the appellant- detendant while admitting the execution of the binama dated 15.8.93 pleaded that in terms thereof on the failure of the respondent-plaintiff to pay the balance amount within a period of three months as mentioned therein, the advance consideration money paid was liable to be forfeited and the binama cancelled. It was asserted that the respondent-plaintiff failed to make payment within time stipulated. The assertion made in the plaint to the effect that the balance amount of Rs. 2,65,000.00 was payable within 30.9.94 and that out of the said amount a sum of Rs. 50,000.00 was paid on 15.10.93 and that the dispute between the parties was referred to arbitration were not admitted. The fact of execution off hand note dated 31.3.95 by the appellant-defendant in course of the arbitration proceeding was denied. It was further denied that on 10.4.96, the appellant-defendant had] made any verbal assurance to execute the sale deed in respect of the property and that accordingly, on that date the parties had signed! a permission form. The claim that the respondent-plaintiff thereafter had offered Rs. 2,15,000.00 to the appellant-defendant and] the allegation that he avoided to execute the sale deed was also denied. The assertive stand] of the appellant-defendant is that as the respondent-plaintiff failed to pay balance amount within the stipulated time set out in the binama, it stood forfeited and he was neither entitled to have the sale deed executed nor refund of the amount of Rs. 3,20,000.00 with interest.