SRI SUDARSHAN PAUL Vs. SRI PRADIP KUMAR ROY

JUDGEMENT

(1.) Heard Mr. G. N. Sahewalla, learned senior counsel assisted by Ms. B. Sarma, learned counsel appearing for the petitioner and Mr. P. K. Deka, learned counsel for the opposite party.

(2.) In this application under Article 227 of the Constitution of India the petitioner has challenged the correctness of the order dated 28.08.2014 passed by learned Civil Judge No.1, Cachar at Silchar, in Title Suit No.51/2011. The aforesaid order was passed under an unusual circumstance. The present petitioner as plaintiff instituted Title Suit No.51/2011 in the Court of learned Civil Judge No.1 at Silchar praying for a decree for specific performance of contract. It was stated that by executing a written agreement for sale on 31.08.2010 the opposite party herein agreed to sell a plot of land measuring 1 Katha 10 Chatack 4 Gonda and 2 Koras standing on 2nd R.S. Patta No.933 Dags No.8083, 8081 and 8080 along with houses standing thereon at a consideration of Rs.39,50,000/-. On the date of agreement the opposite party accepted a sum of Rs.5,00,000/- from the plaintiff as earnest money and it was agreed between the parties that within a period of one year from the date of execution of the agreement the defendant would execute the sale deed on receipt of Rs.34,50,000/-. However, in paragraph 4 of the agreement it was also agreed that in case the plaintiff failed to make payment of the balance sum, in that event, the defendant would be entitled to retain 15% of the earnest money and to refund the balance sum of the earnest money to the plaintiff.

(3.) After the notice was served the defendant side admitted the claim of the plaintiff and accordingly a judgment was passed on admission on 23.02.2012 and a decree was ordered to be prepared. The plaintiff in the meantime came to know that a suit had already been instituted by a third party against the defendant and the plaintiff of the erstwhile suit challenging the very title of the defendant over the decretal land and right of the defendant to purchase the same. Situated under such circumstances the decree holder filed an application before the learned trial Court praying for keeping the decree in abeyance in view of the fact that the title of the judgment debtor of the erstwhile decree came under cloud. The learned trial Court by an order passed on 05.04.2012 rejected the prayer of the decree holder. By the same order the learned trial Court also passed an order under Section 28 of the Specific Relief Act inasmuch as the judgment debtor had filed an application for rescission of contract under Section 28 of the Specific Relief Act as the decree holder did not deposit the money within the stipulated period. By a one line order the learned trial Court allowed the application under Section 28 of the Specific Relief Act and thereby cancelled the decree. Since the application under Section 28 is stated to have been allowed it amounts to rescission of the contract thereby. The learned Court, however, did not pass any order under Section 30 of the Specific Relief Act. Since it is an admitted fact that the judgment debtor had accepted a sum of Rs.5 Lacs from the decree holder as on the date of execution of the rescinded contract agreeing to sell the decretal land, the decree holder, therefore, subsequently filed an application praying for necessary orders to recover the proportionate part of the earnest money in terms of the agreement. This application has also been rejected by the learned trial Court by impugned order passed on 28.08.2014. This order is under challenge in the present proceedings.