ANHAR AHAMED CHOWDHURY Vs. MD. SHAMSUZZAMAN

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 20-11-2002 passed by the learned Joint District Judge, First Court, Dhaka, in Title Suit No. 232 of 1999, decreeing the suit.

(2.) Short facts leading to this appeal are, that on 12-1-1999 the respondent No. 1 as plaintiff instituted Title Suit No. 232 of 1999 in the First Court of Subordinate Judge, Dhaka for Specific Performance of Contract of sale of apartment No. 3.B at 3rd floor measuring an area 2160 square feet described in the Schedules A and B of the plaint, impleading the appellants and respondent Nos. 2-5 as defendants.

(3.) The plaintiffs' case, in brief, is that defendant No. 1 is the distant relation of him; that in February, 1997 defendant No. 1 visited at his residence and informed him that he has undertaken to construct apartment on his residential plot bearing Registration No. 213, dated 13-3-1981, No. 2D, Block No. NE(D), Road No. 73/G, Gulshan Residential Area, Dhaka as described in Schedules A and B of the plaint in the name of "BLISS" Apartment Project; that in course of discussion defendant No. 1 also informed him that out of 10 apartments of the above "BLISS" Apartment Project he had already sold nine apartments to his relatives and he offered to sell the remaining one i.e. apartment No. 3B (located on the 3rd floor at the western side of the building) as shown in the brochure of the "BLISS" Apartment to the plaintiff at a 10% discount price, provided the total discounted price of the apartment project including a car parking space and the driver's room which being Taka 41,22,000 is to be paid in advance; that as per verbal agreement with defendant No. 1 and the terms and conditions stipulated in the brochure of the "BLISS" apartment project as supplied, the defendant No. 1 is to execute and deliver a "Deed of Agreement "in respect of sale of the said apartment to the plaintiff and to execute a "Registered Sale Deed" on receipt of the full payment and hand over the possession of the apartment by June, 1998; that the defendants relied on such terms and conditions as well as the promise held out to him and agreed upon the same, whereupon the plaintiff acting in good faith thereby made payment; that on the basis of above terms and conditions, the plaintiff decided to purchase the said apartment at a consideration of Taka 41,22,000 for his sister who lives in New York USA. Subsequently, the plaintiff paid Taka 20,00,000 and 21,22,000 to the defendant No. 1, all in cheques, on 12-3-1997 and 16-5-1997 respectively and the defendant Nos. 1 & 2 acknowledged the same by money receipt on the same date; that detailed purpose of above full payment of taka 41,22,000 has been described in the 2(two) money receipts issued by the defendant Nos. 1 and 2; that at the time of payment of first installment of Taka 20,00,000 on 12-3-1997 the plaintiff asked defendant Nos. 1 and 2 for the "Deed of Agreement". But they assured him as the same was not ready and as soon as they will get it, then it will be delivered to him. On repeated requests the defendant Nos. 1 and 2 failed to furnish the "Deed of Agreement". In favour of the plaintiff; that the plaintiff thereafter repeatedly requested the defendant Nos. 1 and 2 for providing him the "Deed of Agreement" as they received the full payment for the said apartment but with no effect; that subsequently, the plaintiff came to learn that defendant No. 1 was trying to mortgage the entire apartment building including the land to the IFIC Bank at Gulshan Branch for loan; that on being confirmed about the sanction of loan by the IFIC Bank Ltd., the plaintiff tried to secure the "Deed of tripartite agreement/sale deed" but in vain. Finding no other alternative, the plaintiff served a legal notice upon the defendants requesting them to execute and register sale deed but with no effect; that despite of receiving the total price of Taka 41,22,000 for the said apartment, the defendant Nos. 1 and 2 failed to execute the deed of agreement/registered sale deed and deliver the possession of the said apartment to the plaintiff by breach of agreement and their promise to execute and deliver the said sale deed, which defendant Nos. 1 and 2 were contractually bound and legally obliged to do. Moreover, they proceeded to mortgage the said apartment to defendant No. 3 in order to obtain a loan which is mala fide and fraudulent act of them. Hence the suit.