Full Judgment
IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION (ORIGINAL SIDE) APD No.317 of 2014 APOT No.4 OF2014arising out of C.S.No.461 OF 1984 INDRA KUMAR AGARWAL & ORS.versus SURESH KUMAR GUPTA & ORS.BEFORE: The Hon’ble Justice INDIRA BANERJEE And The Hon’ble Justice SAHIDULLAH MUNSHI Date: 16th March, 2016.
Appearance: Mr.Swarnendu Ghosh, Adv.Led by Mr.Utpal Bose, Sr.Adv.Mr.S.Sen Barat, Adv.Mr.Swapan Kumar Mallick, Mr.Partha Basu, Mr.S.Prasad, Debatrayee Banrjee, Adv.Adv.Adv.Adv.The Court: This appeal is against a judgment and decree dated 24th July, 2014 passed by the learned Single Bench in CS No.461 of 1984 (Suresh Kumar Gupta and Anr.
versus Samarendra Nath Shaw and Ors.) whereby a consent decree dated 7th March, 1984 in Suit No.850 of 1982 (Shambhu Dayal Agarwal and Anr.
versus Samarendra Nath Shaw and Ors.) has been declared null and void.
Sambhu Dayal Agarwal, since deceased, predecessor-in-interest of the appellants and a tenant of Premises No.140 and 140/1, Ramdulal Sarkar Street, Kolkata, which is hereinafter referred to as the suit premises had filed a suit being Suit No.850 of 1982 against Samarendra Nath Shaw, Kamalendra Nath Shaw, Dipak Kumar Shaw and Smt.
Bivabati Dassi being the owners and/or landlords of the suit premises, who are predecessors-in-interest of the respondent Nos.3, 4(a).4(b).5(a) to 5(c) and 6(a) to 6(c) in this appeal.
The said suit No.850 of 1982 was filed by Shambu Dayal Agarwal, since deceased, and his wife for a decree of specific performance of an agreement for sale entered into by and between the landlords/owners of the suit premises being the predecessors-in-interest of the respondent Nos.3, 4(a).4(b).5(a) to 5(c) and 6(a) to 6(c) in this appeal, and the said Shambu Dayal Agarwal, since deceased and his wife.
On or about 13th April, 1982 the plaintiffs in Suit No.850 of 1982 filed an application for interim injunction in the said suit.
Injunction was refused, whereupon the plaintiffs filed an appeal.
In the Appeal Court, the parties to the said Suit No.850 of 1982 filed their terms of settlement and a consent decree dated 7th March, 1984 was passed.
The respondents in this appeal, and/or their predecessors-in-interest, filed the suit being CS No.461 of 1984, hereinafter referred to as the subsequent suit, which has given rise to the judgment and decree under appeal, inter alia, contending that the consent decree dated 7th March, 1984 was obtained by fraud, behind the back of the plaintiffs in the subsequent suit.
The plaintiffs in the subsequent suit contended that the defendant Nos.1 to 4 had executed several agreements for sale in favour of the plaintiffs and the defendant No.5 on 25th March, 1972 for sale of the suit premises.
It was alleged that the plaintiff No.2 had paid a sum of Rs.1,500/- as earnest money at the time of execution of the agreement for sale and thereafter on 18th May, 1976, the plaintiff No.2 had paid a further sum of Rs.5,000/- towards payment of the purchase price.
In Paragraph No.4 of the plaint, the plaintiffs alleged that the defendant Nos.1 to 4 could not complete the transaction as they were unable to produce the requisite Income-Tax clearance certificate under Section 230(A)(i) of the Income Tax Act, 1961 as well as permission from the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976.
The plaintiffs in the subsequent suit have further stated that it was thereafter agreed between the defendant Nos.1 to 4 and the intending purchasers i.e.the plaintiffs and the defendant No.5 that the plaintiffs and the defendant no.5 would take possession of the suit premises as tenants at a rent of Rs.500/- per month.
The plaintiff No.1 and the plaintiff No.5 were jointly to pay rent of Rs.325/- per month for Premises No.139, Ramdulal Sarkar Street and the plaintiff No.2 would have to pay rent of Rs.175/- per month, in respect of Premises No.140, 140(1).Ramdulal Sarkar Street, with effect from 1st May, 1976.
In the plaint, it is stated that the plaintiffs and the defendant No.5 paid the agreed rent and took possession of the suit premises as tenants.
It is the case of the plaintiffs in the subsequent suit that in or about fiRs.week of April, 1984, the plaintiffs allegedly came to know that the defendant No.5, in collusion and conspiracy with the defendant Nos.1 to 4, gave a complete go-bye to the agreements for sale dated 25th March, 1975.
The plaintiffs further came to know that the defendant Nos.5 and 6 had filed a suit being Suit No.850 of 1982 in this Court for specific performance of an oral agreement for sale allegedly arrived between the landlords/owners and the defendant Nos.5 and 6.
According to the plaintiff respondents, they were not impleaded as parties to the said Suit No.850 of 1982.
In couRs.of hearing of an appeal against an order refusing to grant interim injunction as prayed for by the defendant Nos.5 and 6, the respective parties filed their terms of settlement in terms whereof the suit was decreed on 7th March, 1984.
The plaintiff respondents, as observed above, challenged the consent decree, inter alia, on the ground of fraud and sought a declaration that the decree was null and void and of no effect.
The particulars of fraud as given in the plaint are, in a nutshell, as follows: The defendant Nos.1 to 6 colluded and conspired with each other and perpetrated fraud on the plaintiffs behind the back of the plaintiffs, in that, the defendants entered into collusive terms of settlement without notice to or knowledge of the plaintiffs, and obtained a decree on the basis thereof, to deprive the plaintiffs of their rights under the agreement for sale dated 25th March, 1975 of which the defendant Nos.1 to 6 and each of them was aware.
It was further pleaded that the defendant No.5 unlawfully obtained the decree on the basis of the terms of settlement by wilfully and suppressing the existence and subsistence of the agreement for sale dated 25th March, 1975.
The plaintiff respondents contended that by obtaining the decree in suit No.850 of 1982 behind the back of the plaintiff respondents the defendants had purported to render the agreement for sale dated 25th March, 1975 impossible of performance with a view to deceive the plaintiffs and deprive them of their right to complete the sale.
It was also contended that by entering into the terms of settlement, the defendant No.5 had induced the defendant Nos.1 to 4 to commit breach of the terms of the agreement for sale existing and subsisting in favour of the plaintiffs.
The defendant Nos.1 to 4 filed their written statement and the defendant Nos.5 and 6 filed a separate written statement.
An additional written statement was filed on behalf of the defendant Nos.5(a) to 5(j).In a nutshell, the defence of the defendants being the appellants and/or their predecessors-in-interest was two fold.
Firstly, it was contended that the appellant defendants had knowledge of suit no.850 of 1982 and one of them had even given instructions in writing for the purpose of drafting the written statement.
Mr.Ghosh, learned Advocate appearing for the appellants, referred to the evidence to show that Suresh Kumar Gupta, who had been studying law had helped the defendant no.5 in preparation of the 1982 suit.
Reference was made to exhibits 4 and 10, both of which were admitted to be in the handwriting of Suresh Kumar Gupta, the plaintiffs in the 1984 suit.
Mr.Ghosh also submitted that Mr.Suresh Kumar Gupta had prepared papers for filing the affidavit-inreply to the affidavit-in-opposition filed by the respondents in connection with the injunction application filed by Sambhu Dayal Agarwal in the 1982 suit.
Mr.Ghosh emphatically argued that it was thus clear that Suresh Kumar Gupta was all along aware of the fact that Sambhu Dayal Agarwal and Smt.
Narmada Devi had entered into a fresh agreement with the landlords and had filed Suit No.850 of 1982 against the landlords.
Mr.Ghosh referred to the answers to Question Nos.365 and 369 of the evidence of Suresh Kumar Gupta.
Mr.Ghosh also argued that the agreement of 25th March, 1975 was no longer subsisting or in force when the subsequent agreement was made between Sambhu Dayal Agarwal and Smt.
Narmada Devi and the landlords.
It is the case of the appellants that since the landlords were unable to produce the requisite certificates to complete the transaction, Suresh Kumar Gupta and Dwarka Prasad Agarwal being the plaintiffs in the subsequent suit, that is CS No.461 of 1984 lost interest in purchasing the suit premises.
However, Sambhu Dayal Agarwal and his wife Smt.
Narmada Devi continued to have interest in purchasing the said premises.
It has also been argued by Mr.Ghosh, and in our view rightly that Suresh Kumar Gupta and Dwarka Prasad Agarwal being the original plaintiffs in CS No.461 of 1984 did not take any steps to complete the sale transactions for seven long years since the execution of the agreements dated 25th March, 1975.
It has further pointed out by Mr.Ghosh that seven years after execution of the agreements on 25th March, 1975, Mr.Samar Kumar Rudra, Advocate of the landlords wrote a letter dated 3rd March, 1982 informing M/S.M.L.Khemka & Co., Solicitors and Advocates acting on behalf of all the brotheRs.Suresh Kumar Gupta, Dwarka Prasad Agarwal and Shambhu Dayal Agarwal would appear from the answers given by Suresh Kumar Gupta to question nos.125, 128 and 332.
Mr.Ghosh submitted that it was only after termination of the agreement dated 25th March, 1975 that Shambhu Dayal Agarwal & his wife being the plaintiffs in Suit No.850 of 1982, entered into an agreement with the landlords to purchase the said premises at an enhanced consideration of Rs.1,40,000/- and the consent decree dated 7th March, 1984 was passed.
Mr.Ghosh also pointed out that it was the case of Suresh Kumar Gupta and Dwarka Prasad Agarwal that the sale transactions could not be completed since the defendant Nos.1 to 4 were unable to produce requisite Income Tax clearance and requisite permissions from the Competent Authority under the provisions of the Urban Land [Ceiling & Regulations].Act, 1975.
It is denied by the appellants that the plaintiffs in the subsequent suit were unaware of the earlier suit or of the consent decree passed therein.
In the plaint it is also pleaded that the consent decree is a result of collusion and conspiracy between the landlords and Shambhu Dayal Agarwal, predecessor in interest of the appellants.
The agreement for sale of 25th March, 1975 was still valid and subsisting and the landlords were aware of the validity thereof.
The appellants and/or their predecessors in interest and the landlords deliberately suppressed the subsistence of the agreement for sale dated 25th March, 1975 and wrongly obtained the consent decree.
The plaintiffs claimed that they were still interested in completing their transactions in terms of the agreement dated 25th March, 1975.
Mr.Swapan Kumar Mullick, learned Advocate appearing on behalf of the respondent plaintiffs, submitted that from the contentions of the appellants it is clear that at least till 15th March, 1982, the agreements executed in 1975 were valid and subsisting.
Thus, the respondent plaintiffs prima facie had a case for enforcement of their right under the said agreement.
Mr.Mullick submitted that there was no evidence at all that the plaintiffs in C.S.No.461 of 1984 had expressed their intention not to purchase or not to exercise their right to purchase under the agreements of 1975.
If Shambhu Dayal Agarwal was aware of the intention of the plaintiffs not to purchase, then pursuant to the letter dated 3rd March, 1982, he could himself have purchased the properties himself or given intimation to the vendors of his willingness to purchase and the unwillingness of his brothers to purchase as he had at least 12 days’ time to intimate such decision to the vendors/owneRs.Mr.Mullick questioned why this procedure had not been adopted.
He questioned why Shambhu Dayal Agarwal had to go in a round about way to have the earlier agreements cancelled and enter into a fresh alleged oral agreement when he had to pay higher price.
Mr.Mullick argued that this clearly indicates that Shambhu Dayal Agarwal did not want to inform his brothers about the action taken by the owners/vendors and he wanted his brothers to continue in slumber as they did for the last six yeaRs.so that he could make an ulterior game himself.
With the greatest of respect, such submission cannot be accepted.
If the brothers chose to sleep, they cannot take advantage of their own inertia.
Furthermore, the fact that Shyambhu Dayal Agarwal paid a higher price and/or agreed to a higher price only shows that he probably had no option but to agree to a higher price.
An earlier agreement having failed, no prudent landlord would agree to sell the suit property to Shambhu Dayal Agarwal or for that matter to any of the brotheRs.at the same price after lapse of so many yeaRs.It is well settled that fraud has to be pleaded in details and he, who alleges fraud, has to establish fraud.
On the basis of the evidence on record, it cannot be conclusively held that the plaintiffs in C.S.No.850 of 1981 had suppressed anything from the plaintiffs in the subsequent suit.
It is also well settled that non-disclosure of a fact which is easily ascertainable, would not amount to suppression.
It is not the case of the plaintiffs in the subsequent suit that they made enquiries from the plaintiff in the earlier suit and the plaintiff in the earlier suit misled them by informing them that the agreement was still subsisting.
Even otherwise the agreement of 1975 had been executed jointly by the three brothers and Smt.
Narmada Devi with the landlords/owners of the suit premises.
The agreement could not have specifically been enforced by any one brother to the exclusion of the otheRs.not if the landlords were unwilling to agree to a new contract.
We are of the view that the agreement of 1975 was no longer specifically enforceable as on the date on which suit no.850 of 1982 was filed.
The plaintiffs in the said suit were buying the suit property at a higher consideration in terms of a separate agreement executed by and between the plaintiffs in suit no.850 and the landlords/owners of the suit premises.
There was, thus, no obligation on the part of the plaintiffs in suit no.850 of 1982 to implead the plaintiffs in CS No.461 of 1984 as parties.
The learned Single Bench has apparently proceeded on the basis that the contents of exhibits 4 and 10 show that exhibits 4 and 10 came into being subsequent to compromise decree passed in appeal no.165 of 1983.
Relying on the aforesaid documents it could not be said that the plaintiffs in CS No.461 of 1984 were aware of suit no.850 of 1982.
The learned Single Bench found that three things had been established by the plaintiffs.
First, the earlier agreements were subsisting on the date when the compromise decree dated 7th March, 1984 was passed.
With a greatest of respect to the learned Single Bench, we are unable to agree with the finding that the agreements were still subsisting and enforceable as on the date of the compromise decree for the reasons already discussed above.
In our view, it is not very material whether the plaintiffs in CS No.461 of 1984 were aware of suit no.850 of 1982 or of appeal no.165 of 1983.
absolutely nothing in pursuance of As discussed above, they had done the agreement for several yeaRs.Furthermore, as observed above, if the brothers had fallen out, the agreement jointly between the brothers and the landlords/owners ceased to be enforceable in any case.
The appeal is, therefore, allowed.
The judgment and decree of the learned Single Bench is set aside.
Mr.Prosad learned Counsel appearing on behalf of the respondents prays for stay of operation of the order.
The prayer for stay is considered and refused.
( INDIRA BANERJEE, J.) ( SAHIDULLAH MUNSHI, J.
) C.
Sinha & K.
Banerjee A.Rs.[C.R.].