MD. ABDUS SOBHAN Vs. MD. AHSANULLAH

JUDGEMENT

(1.) This appeal, by leave, is directed against the judgment and order dated 17.05.2009 passed by the High Court Division in F. A. No.249 of 2005 dismissing the appeal and affirming the judgment and decree dated 28.08.2005 passed by the learned Joint District Judge, Second Court, Chittagong in Other Suit No.104 of 2002 decreeing the suit.

(2.) The facts, leading to the filing of this appeal, are prcised below:

(3.) Defendant No.1 contested the suit by filing written statement denying all the materials statements made in the plaint. His case, in short, is that that the deed would be executed and registered upon payment of Tk.4,00,000 within 3(three) months of the deed of agreement and Tk.2,30,000 within further 3(three) months, failing which, defendant No.1 could sell the land elsewhere and the money paid would be forfeited. His further case is that since the plaintiff did not pay any money for the construction of the boundary wall, he himself partly constructed the same at his own expense. The plaintiff did not pay Tk.4,00,000/- within the stipulated period and instead paid Tk.1,00,000/- on 18.05.1999. Although the defendant repeatedly requested the plaintiff to pay the remaining money and to have the deed registered, the plaintiff did not pay the rest of the money. As the plaintiff was causing delay, defendant No.1 by way of legal notice to the plaintiff dated 01.06.2002 and also by way of publication of the notice in the daily newspaper on 13.06.2002 rescinded the deed of agreement. Defendant No.1 claimed that the plaintiff was in breach of condition of the deed of agreement and he denied the allegations made in the plaint including the plaintiffs claim that he had offered the remaining money to defendant No.1. The trial Court, upon consideration of the materials on record and the evidence of witnesses adduced by both the sides, by the judgment and order dated 28.08.2005 decreed the suit.