IN THE HIGH COURT AT CALCUTTA

Civil Appellate Jurisdiction

APPELLATE SIDE

Present:

The Hon’ble Justice Tapabrata Chakraborty

&
The Hon’ble Justice Partha Sarathi Chatterjee

FAT 403 of 2018

with
IA No: CAN 1 of 2018 (Old [Link] 6334 of 2018)
with
IA No: CAN 2 of 2020 (Old [Link] 2049 of 2020)

Usha Chowdhury & Anr.

versus
Uma Sankar Bhagat @ Usha Shankar Bhagat

For the Appellants : Mr. Partha Sarathi Bhattacharya, Sr. Adv.,

Mr. Sounak Bhattacharya,
Mr. Raju Bhattacharya.

For the Respondent : Mr. Probal Mukherjee, Sr. Adv.,

Mr. Dipayan Kundu.

Hearing is concluded on : 7th November, 2022.

Judgment On : 23rd November, 2022.

Partha Sarathi Chatterjee, J.

1. Legality and propriety of the judgment and decree dated 17.5.2018

passed by the learned Civil Judge, Senior Division, Malda in O.C. 205 of

2008, whereby the suit for specific performance of contract filed by the
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plaintiff/respondent herein was decreed, has been called in question in this

instant appeal.

2. Facts projected in the plaint, in brief, are as follows :

i) That the suit property originally belonged to defendant no.1 who

had purchased the same by virtue of registered deeds being nos.

8158, 8159, 8160, 8161, 14729, 14730 and 14732 registered on

24.5.1984 and 15.10.1984;

ii) That the defendant no.1 proposed to sale out the suit property

and the plaintiff agreed to purchase the same on a highest

market value of Rs.23,40,001/-;

iii) That defendant no.1 accepted Rs.1,51,001/- by cheque from the

plaintiff and executed on agreement for sale on 4.3.2008 and

the same agreement for sale being no. 1728 was duly registered

in the office of Malda Sadar Sub Registrar on 5.3.2008;

iv) That since there was a mistake in recording the name of the

plaintiff in the agreement for sale, one deed of declaration being

no. 18 of 2008 was also made incorporating correct name of the

plaintiff;

v) That on the same day, the plaintiff by issuing one cheque being

no. 195775 drawn on SBI, Malda Branch in name of defendant

no.2, son of defendant no.1, gave Rs.7,60,000/- and

Rs.40,000/- in cash to defendant no.2 towards consideration

money of the suit property;

vi) That in the agreement, it was stipulated that on or before

30.5.2008 rest amount of consideration money being

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Rs.13,89,000/- shall be paid by the plaintiff and defendant

no.1 would execute and register the deed of sale;

vii) That on 23.5.2008, plaintiff made a contact with the defendant

no.1 and then defendant no.1 asked him to come at the office of

Registrar concerned with rest amount of consideration money

on 28.5.2008 and accordingly as per such instruction, plaintiff

went to the office of Registrar concerned with rest amount of

consideration money and remained present therein till 3 p.m.

but defendant no.1 did not come to perform her part of contract;

viii) That on the next day i.e. on 29.5.2008, plaintiff sent one legal

notice through his learned advocate, Mr. Partho Roy requesting

the defendant no.1 to execute and register the deed on

16.6.2008 and on that date also, defendant did not come to the

office of Registrar concerned to execute and register the deed;

ix) The plaintiff has averred that he was ready and willing to

perform his part of the contract but defendant no.1 was

reluctant to perform her part of the contract.

Hence, the suit.

3. Records postulate that both the defendants contested the suit by

filing written statement wherein both of them admitted that defendant no.1

entered into an agreement for sale with the plaintiff to sale out the suit

property at a highest market value of Rs.23,40,001/- and as an advance,

defendant no.1 accepted Rs.1,51,001/- but plaintiff never paid

Rs.7,60,000/- by cheque and Rs.40,000/- in cash to defendant no.2. It was

specifically pleaded therein that since one good relationship was developed
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in between the plaintiff and the defendants, the plaintiff by issuing that

cheque of Rs.7,60,000/- asked defendant no.2 to withdraw the money from

the bank since there was huge crowd in the queue and accordingly,

defendant no.2 withdrew the money and handed over to the plaintiff and

that the plaintiff had never given liquid cash of Rs.40,000/- to defendant

no.2. It was claimed by the defendants that plaintiff never came to

defendant no.1 to get the deed of sale executed and registered by her within

30.5.2008 and lastly, prayer was made for dismissal of the suit.

4. Records further speak that to substantiate his claim, plaintiff

adduced oral accounts of himself, of one Gopal Bhagat, Ranjan Poddar, Deb

Ranjan Prasad and Jagabandhu Mandal, who were examined as PW-1 to

PW-5 respectively.

5. Plaintiff tendered the original registered agreement for sale being

no. 1728 of 2008, deed of declaration being no. 18 of 2008, legal notice

dated 29.5.2008, his Original Pass book of account no. 11001320632,

original cheque being No. 195774 dated 4.3.2008 which were marked as

Ext. 1, 2, 3 and 3/1, 4, 5 & 6 respectively.

6. On the other hand, to resist the suit, the defendant nos. 1 and 2

adduced their respective oral testimonies and were examined as DW-1 and

DW-2 respectively and they only produced original copy of legal notice dated

29.5.2008 which was marked as Ext.-A.

7. As has been stated earlier, by the judgment and decree impugned,

the learned Trial Court decreed the suit and gave a direction to the

defendant no. 1 which is as follows :

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“..the defendant no.1 is directed to register the covenant in favour of the

plaintiff in terms of the Exhibit.-1 within a period of three months from this

day upon receipt of rest amount of consideration money being Rs.14,29,000/-

as deposited by the plaintiff through challan, failing which the plaintiff may

approach the Court for proper redressal in accordance with law.”

8. Hence, aforesaid judgment and decree have been assailed in this

appeal, inter alia, on the grounds that the learned Court below erred in

decreeing the suit and in not holding that except Rs.1,51,001/-, the plaintiff

did not pay any single farthing to the defendant no.1 towards consideration

money of the suit property and that the learned Court below ought to have

held that the plaintiff had never paid Rs.7,60,000/- to the defendant no.1

and that the plaintiff also did not pay the rest amount of consideration

money within 30.5.2008 and that the plaintiff was not ready and willing to

perform his part of contract and that the amount mentioned in the legal

notice dated 29.5.2008 was material and judgment and decree were liable to

be set aside.

9. Now, while pressing this appeal, Mr. Partha Sarathi Bhattacharya,

learned senior advocate being assisted by Mr. Sounak Bhattacharya,

submitted that that the plaintiff had failed to prove that he paid

Rs.7,60,000/- to defendant no. 1 towards consideration money and he

stated that the plaintiff by issuing one cheque in name of defendant no. 2,

who is not owner of the property, asked the defendant no.2 to get the

cheque enchased and to hand over the money to him and accordingly, the

defendant no. 2 did the same and such amount had never been paid to the

defendant no.1 and he added that the plaintiff had failed to pay rest
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amount of consideration money within 30.5.2008 and he submitted that in

case this Court affirms the decree, the defendant no.1 would be entitled to

get higher price due to escalation of price of land in the locality by passage

of time.

10. Per Contra, Mr. Probal Mukherjee, learned senior advocate, while

representing plaintiff/respondent submitted that officials of the bank

concerned deposed in the suit and they had proved that it was the

defendant no.2, who happens to be the son of defendant no.1, encashed the

cheque and took the money and hence, the learned Court below had rightly

held that the cheque amount being Rs.7,60,000/- was paid towards

consideration money and he asserted that the defendants cooked up the

story that since there was a crowd in the queue leading to the counter of the

bank, the plaintiff asked the defendant no.2 to encash the cheque and to

bring the money for him and he added that the plaintiff filed the suit on

30.6.2008, i.e., immediately after the defendant no.1 refused to perform her

part of contract and hence the delay in disposal of the suit cannot be

attributed to the plaintiff and he further submitted that if in like case,

plaintiff is forced to pay higher price, then there shall not be any sanctity of

the agreement for sale and every vendor of like nature shall take advantage

of delay of disposal of lis in such fashion.

11. He submits that since the learned advocate while giving legal

notice mentioned that rest amount of consideration amount was Rs.

21,89,000/- and if the Court directs to pay such amount, he has to pay the

same but in the given facts and circumstances, the plaintiff cannot be

forced to pay higher price. To buttress his argument, Mr. Bhattarcharya has
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placed reliance upon judgments delivered in the case of P.G. Sinha –vs-

Commodore K.C. Chatterjee, reported in AIR 1991 Cal 327 and in the case of

Satya Jain (dead) Through Lrs. and Others –vs- Anis Ahmed Rushdie (dead)

Through Lrs. and Others, reported in (2013) 8 SCC 131.

12. Now, shorn of unnecessary details, capsulated form of the facts in

the case at hand is that it is an admitted position that the defendant no.1

being owner of the suit proper entered into agreement for sale with the

plaintiff to sale out the suit property at a higher market rate of

Rs.23,40,001/- and she took Rs.1,51,001/- as an advance and the said

agreement for sale was registered on 4.3.2008 and thereafter, in the

agreement for sale there was error in recording the name of the plaintiff and

by virtue of one registered deed of declaration, rectification was made and it

was also an admitted position that the defendant no.1 agreed to execute and

register the deed of sale upon receipt of rest amount of money within

30.5.2008.

13. In the given case, two officials of the bank concerned deposed and

stated that defendant no.2 encashed the amount being Rs.7,60,000/- and

the learned Court below has held that it has been proved that defendant

no.2 enchased that cheque and took the money and hence, the learned

Court below has asked the plaintiff to pay the rest amount of consideration

money.

14. Here, admittedly, the defendant no.2 is not the owner of the

property and the plaintiff has failed to prove that such payment was made

towards payment of consideration money of the suit property and there was

no endorsement of such payment in the agreement for sale. Now if, for the
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sake of argument it is assumed that it has been proved on the degree of

preponderance of probability that defendant no.2 has taken that amount

being Rs.7,60,000/-, then also unless it is proved that such acceptance was

made on behalf of the defendant no.1 towards payment of consideration

money of the suit property, this court cannot recognize such payment as a

payment of consideration money of the suit property. That apart, the learned

advocate of the plaintiff by giving one legal notice on 29.5.2008 stated that

plaintiff was ready and willing to pay the rest amount of consideration

money being, Rs.21,89,000/- and such notice is binding upon the plaintiff.

15. Here, the learned advocates for the defendants/appellants raised

one plea that plaintiff was not ready and willing to perform his part of

contract within 30.5.2008. Section 16 (c) of the Specific Relief Act, 1963

(hereinafter, the Act of 1963) provides that specific performance of contract

cannot be enforced in favour of a person who fails to aver and prove that he

has performed or has always been ready and willing to perform the essential

terms of the contract which are to be performed by him, other than the

terms, the performance of which has been prevented or waived by the

defendant.

16. Explanation for the purpose of clause (c) says that i) where a

contract involves the payment of money, it is not essential for the plaintiff to

actually tender to the defendant or to deposit in court any money except

when so directed by the court and ii) the plaintiff must aver performance of,

or readiness and willingness to perform, the contract according to its true

construction.
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17. So, the provision of clause (c) of Section 16 of Act of 1963 and the

explanation lays down the conditions precedent to enforce specific

performance of contract and says that the plaintiff must aver and prove that

i) he has performed or ii) he has always been ready and willing to perform

essential terms of the contract which are to be performed by him and such

requirement is mandatory.

18. The word ‘aver’ signifies that it should be asserted and/or

mentioned in the plaint and the word ‘prove’ indicates that it should be

proved by giving evidence in course of trial and needless to mention question

of proof comes only if an averment is made in the plaint and incorporation of

the words ‘ready and willing’ in the provision requires that the plaintiff must

be ready with necessary financial resources and must have mental attitude

to perform his part of contract and such requirement is a mandatory

requirement and even one subsequent transferee can also take defence that

plaintiff was not ready and willing to perform his part of contract.

19. It is worth mentioning that compliance of ‘readiness and

willingness’ has to be in spirit and substance and not in letter and form and

plaintiff’s readiness and willingness can be inferred from the conduct of the

parties and attending circumstances.

20. In the case at hand, the plaintiff has averred that he was ready

and willing to perform his part of contract and in the plaint, he pleaded that

on 23.5.2008 he had approached the defendant no.1 and defendant no.1

asked him to remain ready and to come in the office of the Registrar on

28.5.2008 and plaintiff stated that he was present in the office of the

Registrar concerned on 28.5.2008 and such statement got support from oral
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accounts of other witness deposed on his behalf and on 29.5.2008. By giving

one legal notice, the plaintiff asked the defendant no.1 to execute and

register the deed of sale on 16.6.2008 and such legal notice was duly

received by the defendant no.1.

21. When one purchaser by giving one legal notice states that he was

and is always ready with rest amount of consideration money and asks the

vendor to come and to execute and register the deed of sale and he makes

this averment in the plaint and in course of trial he proves such legal notice

and its receipt by the vendor, then readiness and willingness of such

purchaser can be said to have been proved.

22. Here, no evidence has come that the defendant was ever ready to

execute and register the deed and she was present in the office of Register

concerned either on 28.5.2008 or 16.6.2008 rather in her evidence, she

herself disclosed that she has transferred the suit property in favour of her

two daughters during pendency of the suit with an intent to frustrate the

enforcement of specific performance of the contract. This court has no

qualm to hold that defendant no. 1 was not ready and willing to perform her

part of contract.

23. Here, the defendant no. 1 did not disclose the particulars of the

deeds of gift executed by her in favour of her daughter and she even did not

disclose the particulars of her daughter and fact remains that her daughters

being subsequent transferees have not been brought on record.

24. Section 52 of Transfer of Property Act, 1882 has prohibited

transfer of the suit property during pendency of the suit and there are
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repetitive judgments to the effect that if any transfer is made in

contravention of S. 52 of Act of 1882, then doctrine of lis pendens shall

apply to such transfer and acceptability of such transfer shall be subject to

the result of such suit.

25. On numerous occasions, the Hon’ble Apex Court has been pleased

to hold that the agreement for sale, if bona fide, can be given effect to in a

suit for specific performance of contract notwithstanding the transfer of the

self-same property to stranger during pendency of the suit and such

subsequent transfer cannot stand in way of enforcement of specific

performance of contract.

26. So, such transfers say, transfer of the suit property by way of gift

in favour of the two daughters of the defendant no.1 by her during pendency

of the suit cannot be accepted to be valid and those deeds of gift have got no

value in the eye of law.

27. Now, here, the learned advocates for the appellants submitted that

since by passage of time, price of the property has soared, appellants are

entitled to get higher price.

28. In this regard, first and foremost thing which can be stated that

escalation of price during pendency of the lis cannot stand in the way in

giving decree for enforcement of specific performance of contract.

29. There is no absolute proposition of law that in all cases where

there had been an escalation of price, the Court should either refuse to pass

a decree of specific performance of contract or direct the plaintiff to pay a

higher sum.
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30. Here, PWs have conjointly voiced that plaintiff went to office of

Registrar on 28.5.2008 and the plaintiff gave a legal notice on 29.5.2008,

which was duly received by the defendant and plaintiff also averred that he

was and is ready and willing to perform his part of contract and he took

prompt action by filing the suit within one month and he has diligently

pursued the suit and no delay is attributable to the plaintiff. Here, conduct

of the defendant does not inspire the Court to order that such defendant

should be compensated by higher price since by passage of time, price of the

suit property has increased.

31. So, considering the totality of the facts and circumstances of this

case, this court is of the view that the learned Court has rightly held that

plaintiff is entitled to enforce the specific performance of contract but this

court is of the considered view that here, even if it is assumed that

Rs.7,60,000/- was paid to defendant no. 2 by the plaintiff on the degree of

preponderance of probability but such payment to defendant no. 2, who is

not owner of the suit property, cannot be accepted to be payment to the

owner towards payment of consideration money and hence, we are of the

view that to enforce the specific performance of contract, the plaintiff has to

pay Rs.21,89,000/- as he undertook in his legal notice dated 29.5.2008.

32. We have carefully gone through the judgments relied upon by the

learned advocate for the appellants but the same are distinguishable on

facts and are not applicable to the case at hand.

33. Consequently, it is ordered that the appeal be and the same is

dismissed, however, without any order as to the costs and the judgment and

decree impugned are affirmed but subject to the modification to the effect
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that defendant no.1 shall register the covenant in favour of the plaintiff in

terms of the agreement for sale upon receipt of Rs.21,89,000/- and the

other part of the judgment and decree impugned are left unaltered. It is

clarified that if any amount has been deposited by the plaintiff either in the

original proceeding or in execution proceeding, such amount shall be

adjusted with the amount being Rs.21,89,000/-.

34. The applications being IA No: CAN 1 of 2018 (Old [Link] 6334 of

2018) and IA No: CAN 2 of 2020 (Old [Link] 2049 of 2020) have already

been disposed of earlier by an order dated 12th January, 2021.

35. Urgent Xerox certified copy, if applied for, shall be given

expeditiously upon completion of all formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)