SURANJAN PANDEY vs BHAGIRATH ADHIKARY

District Nadia in Title Suit no. 44 of 2013 by the Defendant/Appellant whereby the suit filed by the present Respondent/plaintiff has been decreed. Brief fact of the case

2. A suit for specific performance of oral agreement of sale of a property was filed by the respondent/plaintiff which has been described in the schedule of the plaint alleging denial to execute and register the deed of sale in consonance with the terms of the oral agreement entered between the parties. The case of the plaintiff is as follows : The plaintiff and the father of appellants were well acquainted with each other and because of their friendship the plaintiff was very affectionate towards the defendant and had a very cordial relationship. The defendant /appellant was an unemployed person and since he needed some money to start a business intended to sale his property and the plaintiff/respondent agreed to purchase the said property. After discussion the consideration price of the property was decided as Rs. 4,00,000/- and accordingly they made an oral agreement between themselves and in terms of such oral agreement the plaintiff/respondent paid Rs. 3,50,000/- by instalments and it was further decided that the balance amount of Rs. 50,000/- will be paid within a year from such payment of Rs. 3, 50,000/- and then a sale deed will be registered in favour of the plaintiff/respondent. In view of their ongoing friendship and having faith on each other the plaintiff did not take any money receipt or documents and paid that amount of Rs. 3, 50,000/- and as the plaintiff/respondent did not have enough money to purchase the required stamp paper and other expenses for registration, despite giving a substantial part of the agreed consideration amount the deed was not registered by paying the balance Rs. 50,000/-. However, defendant/appellant in part performance of the said contract handed over the possession of the property to the plaintiff/respondent. Since the date of that oral agreement the plaintiff /respondent kept the disputed property in his own possession and was enjoying the same and also paid the tax and rents to the Municipality and other Government Offices. The plaintiff /respondent also submitted a construction plan for sanction of such plan and started raising the construction of the building on his own.

3. It was further the plaintiff’s case that after the foundation was constructed the present appellant with the mala fide intention sent letter through his Advocate Subodh Chandra Banerjee on May 22, 2008 and demanded balance amount of Rs. 1,00,000/- and also intimated that their oral agreement has expired in the month of Poush, 1414 B.S. However, a reply was given through his Advocate Smt. Mohua Das Chakroborty denying further receiving of Rs. 1,00,000/- and expiry of the period of their oral agreement. On June 14,2008 again said Subodh Chandra Banerjee the Learned Advocate send a notice to the Advocate Mohua Das Chakraborty demanding balance of Rs. 1,00,000/- and also that on payment of such amount the deed will be executed . The Learned Advocate on behalf of the plaintiff also informed that only Rs. 50,000/- was due and payable which he agreed to pay and requested the defendant/appellant to sign in the document. However, no reply was given after that letter dated July 18,

2008. Lastly, having no other alternative he filed the suit for specific performance claiming the present appellant.

4. On the contrary, the case of the appellant /defendant is a complete denial of any oral agreement or receiving any amount towards part consideration which was specifically denied after entering appearance in the suit by filing the written statement. The appellant also denied exchange of any letters between the advocates and also that another suit has been filed by the plaintiff over the same cause of action against the present defendant/appellant which was still pending and the story of refusal to execute registered deed of sale on

20.12.2019 is absolutely false and concocted. It was further denied that any specific time limit was fixed and the contract is vitiated for necessary definite particulars about the necessary terms of contract.

5. The Learned Trial Court after analysing the evidences adduced by the parties and arguments advanced by the Learned Advocates decreed the suit mostly relying upon the advocate’s letter which was exhibited before the Learned Court. Challenging the same the defendant has come before this Court. Submissions

6. The Learned Advocate representing the appellant before this Court argued that the appellant being the defendant by filing his written statement specifically dealt with each and every allegations and did not admit any of the allegations in terms of Order VII Rule 3 of CPC and also denied the amount alleged to be agreed of Rs. 4,00,000/-. It is denied that the respondent/plaintiff paid Rs. 3, 50,000/- as earnest money to him. It is further evident that in terms of Section 136 of the Indian Evidence Act, 1872 the respondent/plaintiff never called his advocate for adducing evidence on his behalf when those letters were specifically challenged by the defendant and the certified copy of those letters were relied upon before the court without producing the original document. Further he submitted that the law laid down in this regard is very specific that even when any document is exhibited without having any objection, the contents of the document cannot be said to be proved and that is to be proved in accordance with the Indian Evidence Act.

7. Furthermore, the legal position is not in dispute that mere production and marking of a documents as exhibit by the court cannot be held to be due proof of its contents. He relied upon the decision of Narbada Devi Gupta vs Birendra Kumar Jaiswal & Anr.1 . The Learned Advocate put further reliance on Alamelu & Others vs State represented by Inspector of Police2, R.V.E Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Anr.3 and argued that the plaintiff/respondent had not been able to establish any answer to the question of establishing any type of contract