DULA BOSE Vs. BISWAJIT BISWAS

JUDGEMENT

(1.) THIS Second Appeal has been directed against the judgment dated 10.09.2012 passed by the learned Additional District Judge, FTC, Cachar, Silchar in Title Appeal No. 9/2007 whereby the matter was remanded for a fresh trial by setting aside the judgment and decree dated 13.08.2007 passed in Title Suit No. 24/2001 by the learned Civil Judge No. 1, Cachar, Silchar dismissing the suit. The plaintiff's case in brief is that Late Nripendra Chandra Bose, the husband of the defendant No. 1, had started a construction as a promoter over a plot of land owned by the proforma defendant Nos. 2 to 9. Since Late Nripendra Chandra Bose was authorized by the owners to receive money from prospective buyers for selling rooms and/or apartments in the proposed construction, hence, the plaintiff had entered into an agreement dated 28.10.1999 with Nripendra Chandra Bose for purchasing a room/flat on the ground floor of the building for a consideration of Rs. 3,50,000/ - The plaintiff had paid an amount of Rs. 15,000/ - as earnest money to Nripendra Chandra Bose in terms of the agreement dated 28.10.1999, under which he was required to pay an amount of Rs. 20,000/ - per month as installment amount until the time the entire amount of Rs. 3,50,000/ - is cleared by him. It was only thereafter the plaintiff would be entitled to ownership of the purchased room/flat. It is admitted case of the plaintiff that he has not been able to make regular payment of the monthly installment amount of Rs. 20,000/ - but the plaintiff claims that he has paid a total amount of Rs. 2,20,000/ - to Nripendra Chandra Bose on different occasions by obtaining receipts. However, due to the death of Nripendra Chandra Bose, transaction was put to jeopardy. As such, the plaintiff had instituted the Title Suit No. 24/2001 in the Court of Civil Judge No. 1, Cachar, Silchar, inter alia, praying for a decree of specific performance of the contract by executing a sale deed in respect of the suit room upon receiving the balance amount payable by the plaintiff.

(2.) THE plaintiff's suit was contested by the defendant No. 1 by filing a written statement whereby, besides denying the case of the plaintiff, the defendant No. 1 had also disputed the fact that her deceased husband had received the amounts as claimed by the plaintiff. The learned trial Court framed as many as six issues, which are as follows: -

(3.) AFTER hearing the parties the issue Nos. 1, 2, 3 and 4 were decided in favour of the plaintiff whereas Issue Nos. 5 and 6 were decided against the plaintiff. The result was that the plaintiff's suit stood dismissed.