MD TAMRUL HAQUE CHOUDHURY Vs. MD MONIA LASKAR

JUDGEMENT

(1.) Heard Mr. N. Dhar, learned counsel for the appellant and Dr. B. Ahmed, learned counsel for the Respondents. This first appeal witnesses a challenge of the judgment and decree dated 29-7-2000 rendered by the learned Civil Judge, (Sr. Division) No. 2 Cachar, Silchar in Title Suit No. 99 of 1997 by which the suit instituted by the plaintiffs/respondents seeking specific performance was decreed against the defendant/appellant.

(2.) The facts in a short compass as emerged from the pleadings exchanged by and between the parties may be recapitulated for proper resolution of this first appeal. The appellant was the absolute owner and possessor of the suit land and having faced with urgent need of cash, he approached the respondents with an offer to sell the suit land for a consideration of Rs.64,000/- and on acceptance of such offer, a registered agreement was executed on 21-5-97 when an amount of Rs. 30,000/- was also paid to the appellant as an advance. It was reiterated in the agreement that the balance amount of Rs. 34,000/- would be paid by the respondents to the appellant within a time-frame of four months from the date of execution of the agreement so mentioned hereinabove and on such payment the appellant/defendant should execute a registered sale deed in favour of the respondents. Thereafter, both the parties approached the competent authority seeking permission for such sale and purchase and accordingly the competent authority i.e. S.D.O., Lakhipur granted permission vide order dated 11-6-97 for such sale. On getting such permission from the authority, the respondents approached the appellant for execution and registration of the sale deed with an offer to pay the balance amount of Rs. 34,000/-. However, despite repeated request on several occasions made by the respondents. The appellant failed to execute the sale deed in terms of the agreement. Such events impelled the respondents to move the Court by filing related Title Suit i.e. T. S. No. 99/97 on 20-9-97 seeking specific performance of the contract so made between the parties in terms of the agreement dated 21-5-97.

(3.) The appellant contested the suit by filing written statement denying all those allegations and averments made in the plaint and stated inter alia that there was no cause of action; the suit was barred by limitation; suit was bad under the Specific Relief Act, 1963; suit was bad for estoppels, waiver and suit was not tenable in the present form and manner. The case projected by the defendant- appellant in his written statement was that though he agreed to sale the suit land on an agreed amount of Rs. 64,000/- for which the agreement of sale was executed on 21-5-97 on payment of Rs. 30,000/- as an advance out of that agreed consideration aforesaid, the respondents failed to make payment of the remaining amount of Rs. 34,000/- within the specified period of four months from the date of execution of the agreement of sale in terms of the said agreement. There was no willingness on the part of the respondents at any point of time for such payment though on the other hand he was ready to execute the sale deed immediately on receipt of the balance amount. Even the appellant of his own made request to the respondents for making such payment and to get the registered sale deed on being executed by him. His case was also that he acted all along bona fide as permission for sale was obtained at his behest and accordingly the competent authority by order dated 11-6-97 granted such permission. Immediately after such permission, the appellant requested the plaintiff/respondent No. 1 to pay the balance amount so that the sale deed could be executed and registered. However, he in turn informed him that he had no money and he would get the sale deed executed only when the plaintiff/respondent No. 2 would come and give him the required money. They were, therefore, not entitled to get a decree for specific performance.