Shambhu Nath Das Vs. Samita Ghosh Moulick - Court Judgment

Excerpt:
- kalyan jyoti sengupta, j.1. i have gone through the draft judgment prepared by my learned brother with brevity but clarity and i fully agree with his lordship's findings and ordering portion. still then, i feel, i shall be failing to discharge my duty as a member of the bench if i do not contribute anything expressing my own words with the risk of redundancy.2. reading from both the pleadings i find that there is no dispute regarding validity and legality of the agreement dated 24th february, 1997. it is not in dispute further that the plaintiff had paid a sum of rs. 2,50,000/- and took possession of flat in suit. it appears from the pleading that both the parties raised dispute regarding area of the flat contrary to terms of concluded contract being ext. 1, for the agreement there was no provision for measurement of the flat agreed to be sold as sought being to be raised unnecessarily by the plaintiff relying on a document being ext.2 on the one hand, on the other hand the defendant contended that price is to be calculated @ 750/- per square feet.3. in the agreement there is no such terms, so the defendant has set up different terms. exhibit 2 on being read properly shows receipt of payment of part consideration and promise to complete deal within the time stipulated therein upon payment of balance amount. the learned judge on an admitted fact ought not to have raised third issue regarding agreement ext. 1 when it is non-issue.4. according to us the learned trial judge should not have examined irrelevant inadmissible pleas to defeat the agreement. in the ext. 1 subjectmatter in the schedule is very clear, it speaks of flat with definite identity and does not admit of any ambiguity.5. the learned trial judge overlooked the fact that the plaintiff prayed for specific performance of original agreement dated 24th february, 1997 not any other agreement. the agreement provides for cancellation in the event of non-performance within the time by the defendant, but such time-factor is given go by, reason of the fact that the defendant after expiry of the time had accepted further part of consideration.6. from the evidence, which has been appropriately analysed by my learned brother in details, it is plain that the plaintiff was still is ready and willing to accept the same and in fact has performed his part. the learned judge has overlooked the written statement that the defendant is also ready and willing to act in terms of the original agreement, but has asked for further consideration which was not agreed upon expressly.7. the whole intention of the agreement was that the flat in question was agreed to be sold at a price of rs. 3,00,000/-.8. the learned judge, as rightly and painstakingly found by my learned brother, was slightly judicially harsh to refuse equitable relief for plaintiff.9. the plaintiff is entitled to get a decree and other incidental relief upon payment of the amount as arrived at by my learned brother.sanjib banerjee, j.10. the plaintiff has assailed the decree of dismissal of a suit for specific performance of an agreement dated february 24, 1997 for sale of a flat. the plaintiff is in possession of the property, has paid substantial money and has been agreeable to pay what, according to him, is the balance sum against execution of conveyance by the defendant.11. the court below has found that the plaintiff failed to keep his part of the bargain, that he was unwilling to pay more than what he had claimed was due and was, this, not entitled to the discretionary relief of specific performance.12. there is an undisputed agreement in writing between the parties dated february 24, 1997 for sale of the flat in question at 44, mondal para, calcutta-700 093. the fifth recital of such agreement, in its material portion, is as follows:5. the purchaser ...offered to the vendor to purchase the (said flat) ...for a total consideration of rs. 3,00,000/- and the vendor being satisfied with the price as offered by the purchaser agreed to sell the said flat,...for the lump sum price of rs. 3,00,000/-...13. a couple of the clauses of the agreement and the description under schedule 'b' thereto are relevant. clauses (1) and (7) of the agreement read thus:i. the vendor shall sell and the purchaser shall purchase the said flat more fully described in the schedule 'b' hereunder written at the price of rs. 3,00,000/- out of which the purchaser has paid rs. 1,50,000/- as earnest money on the date of these present the receipt of which the vendor hereby acknowledges..... .... .... ....7. if the purchaser fails to complete the sale transaction within the stipulated time, this agreement for sale shall the cancelled and the vendor in that event, shall return all the sums received by virtue of these presents to the purchaser within seven days after the expiry of the said period. however, the said sum shall not bear any interest.14. the description of the flat under schedule 'b' to the agreement records the following:all that a complete flat measuring 400 sft. more or less on the southeast side of the ground floor together with undivided proportionate share in the land and all the interests and rights to common area, facilities and amenities and roof more fully mentioned and described in the schedule 'c' hereunder written at the premises described in the schedule 'a'.15. clause (3) of the agreement contemplated the balance consideration to be paid and the conveyance to be executed within six months of the agreement.16. the balance money had, therefore, to be paid by august 24, 1997, failing which the defendant was entitled to cancel the agreement upon refund of the sum of rs. 1.5 lacs. august 24, 1997 passed without the plaintiff tendering the balance consideration. the defendant did not proceed to either express any desire to refund the money or seek cancellation of the agreement.17. on september 27, 1997, the plaintiff says, a further sum of rs. 1 lakh was paid. the defendant signed an undated writing acknowledging receipt of a total sum of rs. 2.4 lacs against the agreed consideration of rs. 3 lacs. such undated receipt further records as follows:the balance amount shall be paid by shambhu das at the time of registration. after receiving the aforesaid amount i shall be bound to execute the deed of agreement. sambhu das shall pay rs. 25,000/- (rupees twenty five thousand) as the balance amount within one month from today. within 6 (six) months from today i shall be bound to hand over the entire papers to shambhu das for registration of his flat. 18. the translation is a fairly accurate recording of the bengali writing. however, the time indicated in such writing remains vague in view of the receipt being undated. notwithstanding the recording of receipt of rs. 2.4 lacs by such writing, it is an admitted position that the total amount paid by the plaintiff to the defendant was rs. 2.5 lacs as was also confirmed, inter alia, by a letter of november 12, 1998 issued on behalf of the defendant.19. the court below held that the plaintiff had failed to perform his part of the agreement and as such was not entitled to the equitable relief of specific performance. the court below rejected the claim for specific performance primarily by reason of the conduct of the plaintiff and the apparently confusing stands taken by him.20. firstly, the averments contained elsewhere in the plaint is inconsistent with the plaintiff's pleading at paragraph 2. in paragraph 2, the plaintiff has asserted as follows:2. by an agreement in writing dated 24.2.97, executed by and between the parties hereto, the defendant agreed to sell and the plaintiff agreed to purchase all that the flat measuring 400 sq. ft. more or less situated on the south-eastern portion of the ground floor of the said premises being a portion of the first schedule hereto, together with proportionate undivided share in the land and all the proportionate interest and rights to common areas, facilities and amenities and roof thereof, free from all encumbrances at or for a total consideration of rs. 3,00,000/- (rupees three lacs) only, which being the subject-matter of this suit is morefully described in the second schedule hereunder written and hereinafter referred to as the 'suit flat'. 21. however, the second schedule to the plaint describes the flat as measuring 500 sq.ft, being the super built-up area. also, there is the following case that has been made out in paragraph 6 of the plaint:6. there was a controversy as to the actual measurement of the suit flat i.e. whether it will be 500 square feet together with the proportionate share of the roof, staircase, landing, other common parts like pump room, motor room, service areas etc. or it will remain as 400 square feet only and the same has been set right by the defendant by her declaration that she received rs. 2,40,000/- from the plaintiff and that the suit flat in measured to 500 sq. feet and not 400 sq. feet as mentioned in the agreement dated 24.2.97. however, the fact remains that the plaintiff paid a sum of rs. 2,50,000/- to the defendant and the same has been confirmed by the defendant's advocate vide his letter dated 30.3.98. secondly, the plaintiff had this to say from the box:there was draft agreement before the final agreement. in the draft agreement area of the flat was of 45 sq.ft. (should be 450 sq.ft). the price of the flat was fixed at rs. 2,70,000/-. i paid rs. 10,000/- by draft and rs. 1,40,000/- in cash. at the time of final agreement the area of the flat was 500 sq.ft. and the price was raised up to rs. 3 lakhs. in the final agreement it was mentioned 400 sq.ft. instead of 500 sq.ft. by nistake. i informed the defendant regarding this wrong mentioning of area of the flat. when another amount of rs. 1 lakh was paid another document was prepared showing the area of 500 sq.ft. of the flat and the price was fixed at rs. 3 lakhs for the same. 22. this case of mistake, suddenly brandished from the box, did not find place in the plaint.23. thirdly, there was the over-eagerness of surendra singh, trying to help out the plaintiff. despite being a witness to the agreement of february 24, 1997, singh boldly claimed as follows:the area of the flat is 450 sq.ft. and service area is 50 sq.ft. totalling 500 sq.ft. the consideration was fixed at rs. 3 lakhs. there was agreement between plaintiff and defendant. i was witness to that agreement. the plaintiff paid rs. 1,50,000/- at the time of agreement to the husband of the defendant. the price was fixed at rs. 600/- per sq.ft. 24. adding to the confusion was the unsigned receipt wherein, somewhat incongruously, the area '500 sft'. appears in parenthesis.25. the admitted agreement for sale, on which due stamp-duty and penalty was paid in course of the proceedings of the court below, did not specify the rate; a lump sum consideration was mentioned in respect of an existing and easily identifiable flat. the area of the flat is indicated as '400 sq.ft. more or less' in schedule 'b' to the agreement. since there was no dispute as to the identity or extent of the flat in question, the plaintiff was required to pay the agreed consideration within the stipulated time, or within the enlarged time if acceded to by the defendant.26. the undated receipt, uncertain as to the date of execution as it is. seems on the basis of the fairly admitted position of the parties, to have been made out beyond the six months period contemplated in the agreement of february 24, 1997. given that in the pre-suit correspondence the defendant receipt of a total sum of rs. 2.5 lacs, the arithmetic was fairly simple. the plaintiff was to pay the balance rs. 50,000/- and the flat was his. it is, however, the plaintiff who has queered the pitch for himself, inter alia, in paragraph 6 of the plaint and in his evidence. singh did his bid to concoct the confusion.27. the court was left to sift through the maze of half-truths that appeared before it. the court below exercised its discretion in refusing specific performance. the court below, however, failed to recognise that the defendant had not only denied the agreement, but had merely asserted that the agreed consideration was somewhat more than what the plaintiff had chosen to disclose.28. the written statement would have us believe that the plaintiff had completely resiled from an understanding from paying the additional sum. the defendant has asserted, at paragraph 15, as follows:be it mentioned here that the extended portion of the suit flat is also being possessed by the plaintiff measuring a total covered area of 500 sq.ft. with the clear understanding that the suit flat will be sold @ rs. 750/- per sq.ft. the defendant further states that the defendant is always ready and eager to sell the covered area of 500 sq.ft. of the suit flat at the consideration price of rs. 3,75,000/- out of which the plaintiff has paid only rs. 2,50,000/-. the defendant has demanded the legitimate dues of the balance consideration price and also the interest at the banking rate on the balance amount for the delayed period from the plaintiff. 29. mr. sabyasachi bhattacharyya has asserted on behalf of the plaintiff-appellant that once the plaintiff had paid a substantial part of the consideration and was ready and willing and offered to tender the balanced stated consideration, he was entitled to have the conveyance executed as of right. mr. bhattacharyya has also offered on behalf of his client that the flat in question be measured. according to him, the flat does not exceed 400 sq.ft. and the defendant's claim of rs. 750/- per sq.ft. for a total consideration of rs. 3,75, 000/- was a myth.30. on behalf of the defendant, mr. p.n. chatterjee, senior advocate, drew our attention to the second schedule to the plaint, which describes the area of the flat as 500 sq. ft. mr. chatterjee also sought to persuade us that the area of the flat sought to be mentioned in the undated receipt was suspect, in the sense that, the writing '(500 sq.ft.)' did not fit in where, according to mr. chatterjee, it was inserted subsequent to the writing having been executed. the original bengali writing may lend some credence to such assertion, but we need not detain ourselves on such score, particularly, as this does not appear to be a stand taken by the defendant in the court below.31. mr. chatterjee, however, urges that the plaintiff's version of things in the plaint was, at the very least, an inaccurate rendition of the transaction and understanding between the parties. it is his contention that upon a plaintiff in an action for specific performance being found to have attempted to mislead the court, he was debarred from obtaining the discretionary relief.32. mr. chatterjee has cited lourdu mart david and ors. v. louis chinnaya arogiasivamy and ors. at : air1996sc2814 and vijay shekhar and anr. v. union of india and ors. at : 2004crilj3857 , in support of the age-old adage that a plaintiff in a specific performance suit must come with clean hands before he can seek the discretion that is exercised in such matters, to be exercised in his favour.33. there can be no rebuttal of the fundamental proposition iterated by mr. chatterjee. the issue, however, is as to whether a litigant claiming specific performance of an agreement relating to an immovable property would disqualify himself from obtaining the discretionary relief merely upon the parties not being ad idem as to the quantum of consideration.34. it remains, therefore, to be seen as to whether the defendant was entitled to the enhanced consideration as claimed in paragraph 15 of the written statement.35. the terms between the parties were reduced in writing and there was no subsequent writing varying the same. as noticed above, the flat in question is identifiable and has been identified and a lump sum consideration therefor was to be paid. the defendant waived the right to terminate the agreement and has never shown any willingness to refund the money received.36. what, then, remains to be worked out is the payment of balance consideration by the plaintiff-appellant and the defendant being suitably compensated by interest.37. the defendant had not questioned either the agreement or the execution of the undated receipt. the defendant's case, as quoted from paragraph 15 of the written statement above, was merely a claim for higher price.38. the court below ought to have balanced the equities by directing the plaintiff to make the balance payment within a stipulated time and to award suitable interest to the defendant. after all, the defendant's stated stand was that she was 'always ready and eager to sell the covered area of 500 sq.ft. of the suit flat', albeit insisting on a higher consideration than that appearing in the agreement. the defendant had also sought payment of the balance (though, of higher quantum) together with interest.39. the defendant has not been able to establish that the agreed consideration had been enhanced at any stage subsequent to the execution of the agreement of february 24, 1997. the defendant will, no doubt, be entitled to interest as claimed, but only on the balance of the unpaid consideration as indicated in the said agreement.40. it does not appear from the plaintiff's conduct that the plaintiff ever grudged in discharging his obligation of paying the balance consideration. it would appear, on the contrary, that the defendant was loathe to accept the balance consideration in terms of the agreement as the defendant insisted that the balance was somewhat more.41. it would appear to us that the court below was somewhat harsh in exercising the discretion against the plaintiff. it may well be that after the initial agreement, the defendant demanded more for the flat in question and the plaintiff may have acceded to a part of the additional demand. but such matters were not reduced in writing, nor did the plaintiff admit the same and the defendant failed to establish the case of enhanced consideration. the unreadiness or unwillingness on the part of the plaintiff was to meet the additional demand as appears to have been made by the defendant. discussions, negotiations and even concessions by the plaintiff, in the matter of enhanced consideration, did not culminate in any form that the defendant would be able to establish at the trial.42. the inconsistencies in the plaintiff's case, however irksome, were in the minor details. the major premise of the plaintiff's case remained and remains unaltered: specific performance of the agreement of february 24, 1997 against the payment of balance consideration in terms thereof. the defendant, in her pleading and evidence, has not been able to dent this sheet-anchor of the plaintiff's case. the defendant had not insisted on the defendant's right to terminate the agreement upon the plaintiff having filed to make the balance payment by august 24, 1997. without any disrespect, the court below erred in taking up cudgels on behalf of the defendant on this score, given the complete waiver thereof by the defendant.43. the appeal, therefore, succeeds. the plaintiff will be entitled to specific performance of the agreement of february 24, 1997. the plaintiff will pay the balance principal consideration of rs. 50,000/- together with interest on such sum at the rate of 12% per annum on simple basis from august 24, 1997 till the date of payment within a month of receipt of the certified copy of this order. if such balance payment and interest is tendered by or on behalf of the plaintiff within time specified to the advocate-on-record of the defendant, the defendant will be obliged to execute the conveyance in respect of the flat in question in favour of the plaintiff within a period of 45 days therefrom. in default of the defendant executing conveyance despite payment as aforesaid, the registrar, administration, of this court shall execute the conveyance on behalf of the defendant.44. in the event of the plaintiff failing to tender the entire sum as directed by this order, the appeal will stand dismissed with cost without any further reference to court.45. the appeal is, thus, allowed. but in the facts the defendant will be entitled to costs in this appeal and the cost in the court below.46. urgent xerox certified copy of this judgment, if applied for, be given to the parties on the usual undertakings.sanjib banerjee, j.47. i agree.