F.A. No. 83 of 1988. Case: Sarada Sawalka Vs Swatantra Kumar Agarwal. High Court of Orissa (India)
| Case Number | F.A. No. 83 of 1988 |
| Counsel | For Appellant: B.D. Mishra, S. Latif, Y. Mohanty, S.K. Ghose, A.B. Ray, S.K. Das, D. Chatterjee, Majoj Ku. Mishra, A.D. Mishra, G. Agarwal, T. Mishra, B.C. Panda, M. Mishra, N.K. Sahoo and B.K. Behuria, Advs. and For Respondents: B.H. Mohanty, J.K. Bastia, R.K. Nayak and B. Das, Advs. |
| Judges | D. Dash, J. |
| Issue | Contract |
| Citation | 2014 (II) ILR 625 |
| Judgement Date | June 07, 2014 |
| Court | High Court of Orissa (India) |
Judgment:
D. Dash, J.
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The appellant (defendant in the court below) being unsuccessful in the Court of Subordinate Judge, 1st Court, Cuttack (as it was then) in T.S. No. 11 of 1986 has filed this appeal challenging the judgment and decree passed therein decreeing the suit of the respondent (plaintiff in the court below) for specific performance of contract for sale of the suit land with structures standing thereon. For the sake of convenience and to avoid confusion in order to bring clarity, the parties hereinafter have been referred to as they have been arrayed in the suit.
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The plaintiff has filed the suit for specific performance of contract for sale of the suit land in the busy locality of Choudhury Bazar of Cuttack, the ancient and historic city of the State of Odisha as described in Schedule-'A' of the plaint together with a double stored building standing thereon comprising of shop rooms and residential houses, directing the defendant to execute and register the sale deed on receiving balance consideration of Rs. 63,000/- within the time stipulated and on failure to be done through Court with the relief of permanent injunction.
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Plaintiff's case is the following:-
The Schedule-'A' property absolutely belonged to one Jagadei Bai Bajaj and that she had got in a partition under a registered deed of partition. Jagadei died on 10.05.1982 leaving the defendant as her daughter and sole successor-in-interest. The defendant has been given in marriage at Kolkata in West Bengal.
The plaintiff was inducted by Jagadei as a tenant in respect of a portion of the building standing over land Schedule-'A' on a monthly agreed rent of ` 1,000/- with effect from April, 1981.
3.1 Jagadei being old and ailing wanted to shift to Kolkata to stay there with her brother as nobody remained by her side at Cuttack to look after her. So she wanted to sell the property described in Schedule-'A' and this plaintiff agreed to purchase the same. Therefore, an agreement was entered into between them on 10.07.1981 for sale of the said property for a consideration of ` 1.90 lakh. A sum of ` 1.00 lakh was paid to Jagadei Bai Bajaj, on that day by the plaintiff in presence of witnesses and the possession of the Schedule-'A' property together with the structure standing thereon was accordingly delivered and the Jagadei also parted with the custody of all the title deeds in respect of said property in favour of plaintiff. It was agreed that after obtaining permission from Khasmahal and from Urban Land Ceiling Authorities, the sale deed would be executed and registered within a period of one and half year. It is stated that the defendant who is the daughter of Jagadei was then present.
3.2 The plaintiff then repaired the building and further constructed residential rooms on the first floor with kitchen and store rooms spending a sum of Rs. 51,000/- and carried on business. When the plaintiff stayed in the ground floor, he also inducted a tenant, namely, Gopal Pediwal on the first floor w.e.f. 01.06.1965 and one Mahavir Prasad Agrawal who was earlier a tenant continued as such accepting the plaintiff as his landlord and so also one Nandalal Harlalka.
3.3 Jagadei died on 10.05.1982. Thereafter the defendant also acknowledged the execution of earlier agreement made by her mother on 10.07.1981. In this regard she executed another agreement on 19.12.1982 and received further sum of Rs. 40,000/- in presence of local gentlemen, as further part of consideration as agreed before. It was then agreed that sale deed would be executed in January, 1986 after renewal of Khasmahal lease in her favour on receiving balance sum of Rs. 50,000/-.
3.4 That subsequently, the defendant demanded more money and then there arose dispute. So a settlement was arrived at the intervention of local gentlemen during end of month of December, 1982. It was agreed that the plaintiff would continue to pay Rs. 36,000/- towards further consideration money by way of monthly rent @ Rs. 1,000/- from 01.01.1983 to December, 1985.
3.5 In January, 1985, the defendant again demanded Rs. 20,000/- which gave rise to a dispute followed by settlement that the plaintiff would pay a further sum of Rs. 10,000/- by way of rent per month till October, 1986. Although two agreements to the above effect were agreed to be executed, those were not done by the defendant despite of the fact that plaintiff had handed over the stamp papers etc. for the said purpose and on the contrary the defendant typed out therein as if those were just agreements in respect of tenancy and asked the plaintiff to sign. The plaintiff did not agree and thus those remained with the defendant like that.
3.6 The plaintiff went on making payment as per the decision of the gentlemen and in view of the terms of agreement for sale by way of monthly rent till June, 1985. The defendant was then staying at Kolkata. So, the monthly rent for July was sent by money order and that was returned back. Next when the rent for July and August was sent by a cheque, the defendant though received it but thereafter the rent for the month of September was not received.
3.7 The plaintiff thereafter was surprised to receive a notice from defendant's Advocate on 07.10.1985 stating therein that he was a monthly tenant at will being inducted as such w.e.f. from 1st May, 1984 with agreed monthly rent of Rs. 1,000/- and in view of that, the notice was for termination of tenancy seeking vacant possession.
The plaintiff gave a reply to the said notice but it again went unanswered. It was next sent on 26.11.1985 calling upon the defendant to execute the sale deed in favour of the plaintiff in respect of the schedule property on receiving the balance agreed consideration of Rs. 63,000/- within 15 days. However, the reply came about filing of a petition under the provision of Odisha House Rent Control Act vide HRC Case No. 67 of 1985 before the House Rent Controller, Cuttack for eviction of the plaintiff from the tenanted premises.
The plaintiff claims that there being no subsisting relationship of landlord and tenant since 10.07.1981, i.e., the date when defendant's mother executed the agreement to sell the tenanted premises along with the land and rest structures described in Schedule 'A', the proceeding under the Act is not maintainable.
3.8 The plaintiff also claimed that he is always ready and willing to perform his part of the contract and to pay the balance amount of Rs. 63,000/- besides meeting the expenses for the purpose of sale, such as, for the Stamp Duty, Registration Fees etc. and in view of the failure on the part of the defendant, the suit was filed.
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The defendant contested the suit by filing written statement.
4.1 The assertion of the defendant is that the important documents relied upon by the plaintiff are forged and fabricated. She and her mother are paradanasin women coming from a conservative Marwari community without knowing, Odia writing. The documents are said to have not been read over and explained to them in other words created for the purpose.
4.2 A stand is taken that even accepting the contents of those documents for the sake of argument, in the facts and circumstances of the case and in view of the position of the law, no decree for specific performance of contract can be granted, inasmuch as, under the terms of the contract and the conduct of the parties at the time of entering into the alleged contract and the other circumstances under which the alleged contract was entered into gives the plaintiff an unfair advantage over the defendant and the purpose of the contract would involve hardship upon the defendant, which would not have been foreseen by the defendant in the facts and circumstances of the case. Enforcement of the specific performance of contract is said as inequitable. Side by side it is stated that the defendant has no house at Cuttack except the suit house and the defendant get substantial income from the rent.
4.3 The defendant and her mother were having a retained mohariar, namely, Rama Chandra Parida and they did not know any person named Duryodhan Baithalu, who is said to have scribed these two important documents which are the basis of the present case. Had the documents been scribed by Sri Parida, he would have taken due care to safeguard the interest of the defendant and her mother and that is projected as a suspicious circumstance against these documents.
4.4 The documents of agreements for sale are vitiated by fraud and undue influence. It is stated that the defendant and her mother had reposed great trust and confidence on the plaintiff and his father Biharilal Agrawalla, who were in a position to dominant over the will of the defendant and her mother. They were acting as the well wisher of these two helpless ladies. It is also stated that the said Biharilal had arbitrated the disputes over the property affair of defendant's cousin brother and the plaintiff was looking after the construction work and other matters of the defendant while submitting accounts etc. The documents, according to the case of the plaintiff, on their face suffer from inherent improbabilities.
4.5. The holding is a Khasmahal holding and at the time of alleged contract there was no subsisting lease. So, the contract even if was there can be said to be a contingent contract and the purpose of the same was wholly dependent upon the permission from the Khasmahal authorities. So, there being no permission, the contract is not specifically enforceable.
4.6. One Gangaram Chhapolia, who is a signatory to the document is a noted litigant of the State and he was a close friend of Biharilal, the father of the plaintiff so also one Dr. Gopal Chandra Sahu and they are not of that locality and they have thus been figured there. The reason given for execution of the contract by the mother of the defendant is false.
4.7 The story of the contract coming into being is not believable, inasmuch as, after the alleged contract...
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