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Sunil Chandra Ghosh Vs. Hemendra Kr. Deb - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 190 of 1982
Judge
Reported inAIR1985Cal233
ActsSpecific Relief Act, 1963 - Section 20 and 20(2); ;Evidence Act, 1872 - Section 18; ;Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 27
AppellantSunil Chandra Ghosh
RespondentHemendra Kr. Deb
Appellant AdvocateAnindya Mitra, ;Sukumar Guha and ;B.C. Ghosal, Advs.
Respondent AdvocateSaktinath Mukherjee, ;S.P. Roy Chowdhury, ;Ashis Ch. Bagchi and ;Tapan Kumar Muherji, Advs.
DispositionAppeal allowed
Cases Referred and Ramalinga v. Jagadammal
Excerpt:
- sankari prasad das ghosh, j. 1. this is an appeal by the defendant against the judgment and decree passed by the learned subordinate judge, 2nd court, alipore, in title suit no. 3 of 1980 for specific performance of a contract for sale.2. premises no, 91, ekdalia road, p. s. ballygunge calcutta consists of two units, one of these units being comprised of the ground floor and the first floor with separate entrance and staircase on the east, facing the read and a car drive passage on the south and the other unit consisting of the second and third floor flats at the top with separate staircase and entrance, facing south on the passage, leading from the main road, and open space at the back and vacant land to the north of the building. the defendant-appellant, sunil chandra ghosh, was the.....
Judgment:

Sankari Prasad Das Ghosh, J.

1. This is an appeal by the defendant against the judgment and decree passed by the learned Subordinate Judge, 2nd Court, Alipore, in Title Suit No. 3 of 1980 for specific performance of a contract for sale.

2. Premises No, 91, Ekdalia Road, P. S. Ballygunge Calcutta consists of two units, one of these units being comprised of the ground floor and the first floor with separate entrance and staircase on the east, facing the read and a car drive passage on the south and the other unit consisting of the second and third floor flats at the top with separate staircase and entrance, facing south on the passage, leading from the main road, and open space at the back and vacant land to the north of the building. The defendant-appellant, Sunil Chandra Ghosh, was the owner of the building at premises No. 91, Ekdatia Road. On 3-3-1972, there was an agreement for sale of the ground floor and the first floor of the premises to the plaintiff-respondent for a sum of Rs. 75,000/-. In accordance with this agreement for sale, a deed of conveyance was executed on 22-9-1972 by the defendant in favour of the plaintiff-respondent in respect of the ground floor and the first floor with separate entrance and staircase. The plaintiff-respondent's case is that on the same day (22-9-72) the defendant entered into another agreement with the plaintiff to sell the other part of the premises No. 91, Ekdalia Road, consisting of the second and third floor flats as well as the vacant land for a sum of Rs. 1,00,000/- and that on the date of execution of this agreement for sale, a sum of Rs. 1,000/-was paid by the respondent to the appellant as earnest money. In terms of the agreement for sale, the appellant was to sell the secottd and third floor along with the vacant land to the respondent within a period of ten years, after the expiry of two years from the date of the agreement. On alleging the failure of the appellant to execute and register a deed of conveyance in respect of the third and fourth floor and the vacant land, in pursuance of this agreement for sale dated 22-9-1972, on receiving the balance sum of Rs. 99,000/- from the respondent, the plaintiff filed a suit for specific performance of the contract for sale, in respect of the agreement for sale dated 22-9-1972.

3. The suit was contested by the appellant by filing a written statement, which was subsequently amended for incorporating therein particulars of fraud. The defence was that the consent pf the appellant to the alleged agreement dated 22-9-1972 was obtained by coercion, fraud and in isrepresentation as well as undue influence. The appellant had no opportunity to appoint any independent and competent lawyer of his choice. The appellant failed to appreciate the true meaning, scope and effect of the agreement for sale in the absence of any advice from any independent and competent Legal Adviser. The period of ten years for completion of the sale was motivated, unconsionable and illegal Great hardship would be caused if the suit for specific performance was decreed, as the appellant has no other house or landed property anywhere else. The payment of the sum of Rs. 1,000/- as earnest money was denied. The defence was that prior to the date of execution of the alleged agreement dated 22-9-1972, the respondent assured the appellant that the appellant would continue to live with his dependents in the second and third floor of the building (the second and third floor being hereinafter referred to as the suit-premises for the sake of convenience) during his lifetime and that peaceful possession of the appellant therein would not be disturbed by the respondent in any way. It was alleged that as the appellant was a bachelor and cordial relationship developed between the appellant and the respondent after the respondent came to occupy the ground floor and first floor of the premises in February, 1972, the appellant genuinely believed in the assurance of the respondent and was persuaded by the respondent to enter into the alleged agreement for sale.

4. The respondent examined four witnesses including himself. P. W. 1 is the respondent. P. W. 2 is Samaendra Nath Basu, an Advocate, who is alleged to have acted as an Advocate for the appellant in respect of the agreement for sale of the suit premises. P. W. 3, Benoy Dutta Gupta, was examined to prove some advertisements made by the appellant in 'the Statesman' for sale of the building at 91, Ekdalia Road. P. W. 4, Biswanath Sen, is a Solicitor, who put his signatures in all the deeds, viz., the agreement for sale dated 3-3-1972, agreement for sale dated 22-9-1972 and the deed of conveyance dated 22-9-1972. D. W. 1 is the appellant. D. W. 2, Paritosh Bagchi, has been examined to show the educational qualification of the appellant. D. W. 3, Shri K. C. Chatterjee, was examined to prove the valuation of the premises No. 91, Ekdalia Road, including the building thereon, in 1972 as well as in 1982.

5. On a consideration of the evidences of these witnesses and the materials on record, the learned Subordinate Judge was of the opinion that the appellant knowingly executed the agreement for sale of the suit-premises to the respondent and had received the sum of Rs. 1000/- as earnest money. He was also of the opinion that the defendant-appellant was unable to establish legal grounds for refusing specific performance of the agreement for sale. Accordingly, he was pleased to decree the suit for specific performance of the contract for sale and to direct the execution of a kobala in favour of the respondent on deposit of the balance of consideration money in court Being aggrieved by this judgment and decree passed by the learned Subordinate Judge, the present appeal has been filed.

6. Mr. Mitter, appearing for the appellant, has contended that even assuming for the sake of argument that the agreement for safe was executed by the appellant the suit for specific performance was to fail as it would be inequitable and unfair to enforce the alleged agreement for sale of the suit-premises and the vacant land.

7. Mr. Mukherjee, appearing for the respondent, has taken pains to take us through the entire evidences of the witnesses for the purpose of impressing on us the variance between the case of the defendant in his evidence in Court as contrasted with his case in the written statement and the execution of the deed of agreement for sale by the defendant on receipt of Rs. 1,000/- as earnest money. His contention is that as the question of hardship should be judged as on the date of the transaction and not in the light of the subsequent events and as subsequent rise in price cannot be a ground for refusing specific performance of contract, the suit for specific performance was to succeed.

8. The relief by way of specific performance being discretionary under Section 20 of the Specific Relief Act, 1963 (hereinafter called the Act for the sake of brevity), the plaintiff must come to Court with clean hands. If in a suit for specific performance of a contract, the plaintiff does not come with clean hands, as where he is guilty of fraud or some other practice, he may ordinarily get no relief by way of specific performance. Undoubtedly, a contract is to be judged as at the time at which it was entered into, and if fair when made, the fact that- it has become too hard by the force of subsequent circumstances, or changing events, will not necessarily prevent its specific performance. Nevertheless, if it is seen that the contract itself is not fair and is one-sided, the Court may refuse to enforce the contract.

9. A scrutiny of the evidences on record shows that the plaintiff has not filed this suit with clean hands. Ext. 1 is the agreement for sale of the ground floor and first floor of the premises. Ext. 2 is the deed of conveyance in respect of the ground floor and first floor of the premises. Ext. 1(a) is the disputed agreement dated 22-9-72 in respect of the suit-premises and the vacant land, measuring 3 cottahs 2 chittacks and 1 sq. ft., though the total area of premises No. 91, Ekdalia Road is 4 cottahs 14 chittacks and 15 sq. ft. according to the deeds and is actually 4 cottahs 15 chittacks and 1 sq. ft. by actual measurement. The reports, Exts. A and A(1), of the valuer (D. W. 3) show that the building at premises No. 91, Ekdalia Road stands over 1 cottah and 11 chittacks of lands and the open land is 3 cottahs and 4 chittacks. The disputed agreement, Ext 1(a), opens with the averment that at the treaty for sale of the ground floor and first floor of the premises it was agreed by and between the parties that the vendor should sell and the purchaser should purchase the other unit, viz., the suit-premises and the open space and vacant land for a sum of Rs. 1,00,000/-. Curiously enough, the first agreement for sale dated 3-3-1972, Ext. 1, is silent about any such treaty for sale of the suit premises and the vacant land and open space. Nay, there is no such case in the plaint. Presumably, keeping in mind this averment in the second agreement for sale dated 22-9-1972, the plaintiff (P. W. 1) came with a case in his evidence that on the Saraswati Puja day in 1972, the defendant came to his house (meaning his father-in-law's house at 99, Ekdalia Road) and intended to sell the premises No. 91, Ekdalia Road and offered to sell it for a sum of Rs. 1,75,000/-. This was denied by D.W. 1 in his evidence. There cannot be any such talk on the Saraswati Puja day in 1972, in the absence of any averment for sale of the suit premises and the vacant land and open space in the first agreement for sale, Ext. 1.

10. Prior to the filing of this suit for specific performance of contract on 14-1-1980, the, plaintiff had knowledge about the case of the! defendant. On 26-3-1979, a letter, Ext. 4(a), was sent by Shri B. Sen (P. W. 4) to the defendant for completing the sale of the suit-premises, within a period of three months from that date, on threat for sale of the suit- premises. In reply to this letter, the Advocate for the defendant sent a letter dated 28-5- 1979, Ext. 4(b), wherein most of the defence case was stated in a nutshell. It was stated in that letter that the defendant had no independent legal advice regarding the alleged agreement dated 22-9-1972 as Shri Samarendranath Nag, Advocate, (the name of the Advocate being actually Samarendranath Bose, who was examined as P. W. 2) was selected by him in consultation with his client. Presumably, to do away with this case made in this letter dated 28-5-1979 sent by the Advocate for the defendant to Shri B. Sen (P.W. 4), the plaintiff examined Samrendranath Bose (P.W. 2) and B. Sen (P.W.4) for the purpose of showing the part played by them in relation to the second agreement for sale, Ext. 1(a), and the deed of conveyance, Ext. 2, P.W. 2 claimed to have . acted for the defendant and not for the plaintiff by signing as attesting witnesses in both these deeds, Exts. 2 and 1(a). The learned Subordinate Judge relied much on this evidence of P.W. 2 without scrutinising the evidence of the P.Ws. It is in the cross-examination of P.W. 2 that he does not remember who engaged him to be witness to the documents, Exts. 1(a) and 2. It is the specific evidence of P.W. 2 that he never acted in the transaction in respect of any of these two documents. Even the plaintiff (P.W. 1) has admitted in cross-examination that nobody actually read over and explained the agreement to the defendant. Even though the plaintiff himself admitted that nobody read over and explained the agreement to the defendant, P.W. 4 stated in his evidence that in his presence, S. N. Basu (P.W. 2 explained the contents of the two documents to the defendant and that S. N. Basu acted on behalf of the defendant in these transactions. Needless to say, these evidences of P.W. 4 cannot be at all relied on, in face of the aforesaid evidences of P.Ws. 1 and 2. There is no endorsement in the second deed of agreement that it was read over and explained to the defendant. P.W. 4 went to the extent of saying that he gave a draft agreement to the Advocate for the vendor and saying further that it was lying in their office. It is the evidence of P. W. 4 that he sent that draft agreement to S. N. Basu, vendor's Advocate. No question was, however, put to S. N. Basu as to whether the draft agreement was sent to him by B. Sen,. After P.W. 2 was examined on 18-2-1982, B. Sen was examined on 22-2-1982. If actually any draft agreement was sent by B. Sen to P.W. 2, was it not necessary for the plaintiff to recall P.W. 2, at least after examination and cross-examination of P.W. 4, for the purpose of proving that actually there was a draft agreement, which was approved by S. N. Basu (P.W. 2)? The Day Book of a Solicitor has much importance for corroborating his statements in a Court of law. The Day Book was not produced by B. Sen to show if actually any draft agreement was sent to S. N. Basu by him, as stated by him. P.W. 4 stated that he could not say if from his diary it could be seen that he had talk with S. N. Basu. If Sri B. Sen (P.W. 4) is not sure as to whether there was any entry in his diary (meaning presumably his Day Book) about his talks with S. N. Basu, it is difficult to rely on the evidence of P.W. 4 that it was his personal knowledge that S. N. Basu acted as Advocate for the vendor. P.W. 1 stated that he did not know if his Solicitor brought S. N. Basu.

11. Paragraphs 3, 4, 5 and 6 of the second agreement, Ext. 1(a), show that the agreement is one-sided, unfair and inequitable. Under paragraph 3 of the agreement, the sale was to be completed within a period of ten years from the date of the agreement and time was to be the essence of the contract. Under paragraph 4 of the agreement, the vendor should, until such sale, himself use and occupy Lot 'B' (the suit-premises and the vacant land and open space) and keep the same reasonably repaired, but should not let out the same or otherwise charge or encumber the same without first offering to the purchaser. Paragraph 5 is to the effect that the purchaser should be at liberty at any time or times after expiry of two years from the date of the agreement to call upon the vendor to complete the sale. Paragraph 6 is to the effect that in case the vendor failed or neglected to complete the purchase, the purchaser should be entitled to enforce the agreement by a suit for specific performance with consequential reliefs. The upshot of the agreement is that the defendant was to keep the suit-premises, reasonably repaired for a period of ten years from the date of the agreement and was to have only the right of residence in the built-premises for getting only 1% (one percent) of the consideration money (earnest money of Rs. 1,000/- being 1% of the total consideration money of Rs. 1,00,000/-). One is yet to hear about any such agreement for sale extending over a period of ten years after expiry of two years from the date of the agreement to benefit the purchaser and to cause untold hardship on the seller. Is it equitable to keep the seller bound to keep the premises reasonably repaired for a period of ten years on receipt of only 1% (one percent) of the consideration money on the offchance of selling the premises to the purchaser within ten years from the date of the agreement? No right was given in the agreement to the defendant to rescind the contract before ten years from the date of the agreement. This is, to say the least, most unfair for a vendor. It is not understood how time could be the essence of the contract if the purchaser was to get a period of ten years from the date of the agreement for completing the purchase, after expiry of two years from the date of the agreement.

12. Much argument has been advanced by Mr. Mukherjee for the purpose of showing that the question of hardship is to be judged as on the date of the transaction. In this appeal, we are, however, concerned not only with the question of hardship but also with the question of want of fairness of the contract. When there was no talk at the time of entering into the first agreement on 3-3-1972 for sale of the suit-premises and the vacant land for a sum of Rs. 1,00,000/-, there was no independent legal advice of the appellant and when the terms of the second agreement themselves show that the terms were one-sided and not fair, the following lines from Fry on Specific Performance, Sixth Edition, by G. R. Northcote at page 190 will be very much significant in the present appeal :--

'In judging of the fairness of a contract, the Court will look not merely at the terms of the Contract itself, but at all the surrounding circumstances, such as intimidation and duress of the defendant, the mental capacity of the parties, though falling short of insanity, their age or poverty, the manner in which the contract was executed, the circumstances that the parties were acting without a Solicitor, that the property was reversionary, or that the price was not the full valued'.

13. The year .1972 was the period of Naxalite movement (vide D, W. 3). On 10-10-1971 and 9-1-1972, the defendant made advertisement in the 'Statesman' for sale of the entire premises No. 91, Ekdalia Road, in one of these advertisements, Ext. 6, it was stated that the property would be sold at Rs. 3,00,000/- or offer. It was also stated in that advertisement, Ext. 6, that part sale was possible on flat basis. In the other advertisement, Ext. 6(a), the price was stated as Rs. 3,00,000/- or offer and it was also stated that instalment payment was acceptable. The defendant is non-matric. He read up to Class X (vide D.W. 2). He (D.W. 1) used to teach songs and had a music school on the first floor of his house from 1963 to 1971. Evidences have been adduced by the plaintiff and the defendant to show as to from which month the plaintiff began to reside in the ground floor and -first floor of the premises No. 91, Ekdalia Road. According to P.W. 1, he began to stay in the ground floor and first floor of the premises from March, 1972. According to D.W. 1, it was from February, 1972. The recitals in the deed of conveyance, Ext. 2, show that possession of the ground floor and first floor of the premises was delivered to the plaintiff as care-taker. After making the advertisements in the 'Statesman', the defendant was presumably on the lookout for a person who could be useful to him so that the building at 91, Ekdalia Road could be preserved. The plaintiff was allowed to occupy the ground floor and first floor of the premises from the month of March, 1972 as care-taker for this purpose, though the evidences of P.W. 1 are that from February. 1972, the plaintiff began to stay in the ground floor and first floor as a tenant on condition of payment of Rs. 1,000/-ys monthly rent and that the plaintiff did qot pay any monthly rent thereafter to the defendant. It was in the background of the Naxalite movement and the attempt by the defendant to sell the house that the first agreement for sale dated 3-3-1972 was entered into and thereafter the deed of conveyance, Ext. 2, in respect of the ground floor and first floor of the premises was executed and registered. It is in the evidence of D.W, I that he has no other house, barring the premises in Calcutta, or any other place to stay. Much argument has been advanced by Mr. Mukherjee to show that absence of any other house of the defendant in Calcutta cannot be a relevant consideration for not enforcing the second agreement for sale of the suit-premises inasmuch as the defendant had himself volunteered to vacate the suit premises by writing to the plaintiff on 12-12-1979. It appears that on 12-12-1979, the defendant sent a letter, Ext. 4(f), to the plaintiff, in reply to a letter dated 9-12-1979 from the plaintiff. It was stated in that letter dated 12-12-1979 that the defendant decided to donate the portion of his house to Bharat Sevashram Sangha to organise the same for the children or women as they thought it, in the name of his late mother. It was stated in the letter that if the Bharat Sevashram Sangha accepted his offer, the defendant would vacate his portion. It was also stated in tha.t letter that in 1977, the defendant had repaired the whole house at a cost of Rs. 3,000/-. The contention of Mr. Mukherjee is that if the defendant was willing to vacate the suit-premises on 12-12-1979, the defendant cannot be allowed to urge absence of any other accommodation for him in Calcutta to defeat the suit for specific performance. Undoubtedly, one would have been inclined to accept this contention of Mr. Mukherjee, provided the letter, Ext. 4(f), would have been sent by the defendant to the plaintiff prior to the issue of the letter dated 26-3-1979 Ext. 4(a), by Sri B. Sen to the defendant to complete the sale within a period of three months. As this letter. Ext. 4(f), was sent after the demand by the Solicitor (P.W. 4) to execute the deed of sale within three months from 26-3-1979, it is difficult to accept the contention of Mr. Mukherjee that the alleged hardship of the defendant should not be a ground for defeating the suit for specific performance. The letter, Ext. 4(f), is to be construed on the basis of the motive, or rather the balance of motives, acting on defendant at the time of writing the letter. The motives which influence a human mind are as various as the feelings and desires of men. In reply to the letter dated 26-3-1979, the defendant stated that the second agreement was not intended to be acted upon and that it was merely intended to forestall the nephews and nieces of the defendant, who were his heirs in case of his early death, vide Ext. 4(b), The case in the written statement is that on the assurance of the plaintiff that the defendant would be allowed to stay in the suit-premises till his death, the defendant entered into the second agreement for sale, Ext. 1(a). After being asked by the Solicitor by the letter, Ext. 4(a), to execute the deed of sale within three months, the defendant may think that when the plaintiff was not keeping his assurance for allowing him to stay in the suit-premises till his death, it would be better to make a gift of the suit-premises to Bharat Sevashram Sangha so that, in the fitness of things, as judged by the defendant in his state of mind at that time, Bharat Sevashram Sangha would be a better partner for the plaintiff. It is to be stated in this connection that apart from negotiating with Bharat Sevashram Sangha for donating the suit-premises, the defendant had also written to one Dr. Mukherjee, vide Ext. 4(d), on 8-6-1980 for making a gift of the suit-premises. Though this letter dated 8-6-1980 was sent before the defendant sent the letter. Ext. 4(f), on 12-12-1979 to the plaintiff, the letter to Dr. Mukherjee was also posterior to the sending of the letter by the Solicitor on 26-3-1979 for completing the sale within three months and could be explained as a fetter from the defendant out of his exasperation for non-keeping of assurance by the plaintiff to allow the defendant to stay in the suit-premises till his death before enforcement of the second agreement for sale.

14. The price of the suit-premises and the open space and vacant land, as mentioned in the second agreement, Ext. l(a), is also low. D. W. 3 made valuation of the entire premises No. 91, Ekdalia Road, including the building thereon, on the basis of 1972 and 1982 market rates. His reports, Exts. A & A(1), show that in 1972, the valuation of the ground floor was Rs. 71,935/-, the valuation of the first floor was Rs. 63,500/-. the valuation of the second floor was Rs. 66,914/- and the valuation of the third floor was Rs. 46,054/S totalling Rs 2,48,403/-. By adding 10 percent to this valuation for electrical and sanitary fittings and water supply and adding cost of land at the rate of Rs. 25,000/- per cottah in respect of open land and Rs. 20,000/- per cottah in respect of the area covered by the building to the tune of 1 cottah and 11 chittacks, D. W. 3 valued the entire premises, including the building as in 1972 at Rs. 3,88,293/-. According to K. C. Chatterjee (D. W. 3), the valuation of the ground floor, first floor, second floor and third floor on the basis of the 1982 market rate was Rs. 1,16,100/-, Rs. 1,05,100/-, Rs. 1,15,840/- and Rs. 79,700/-, totalling Rs. 4,16,740/-. The report of D. W. 3 is that according to the 1982 market rate, the total valuation of the entire premises including the building thereon will be approximately Rs. 5,80,192/- on adding 20 per cent of the valuation of the building towards sanitary and electric installation and water supply less, depreciation and on adding the cost of land, the open land to the tune of 3.25 cottahs, being valued by him at the rate of Rs. 40,000/-per cottah. It has been contended by Mr. Mukherjee that when the subsequent rise in price of land will not be a relevant ground for refusing specific performance of a contract of sale, the valuation of the suit-premises and the open land etc. at Rs. 1,00,000/- in the second agreement for sale cannot be low, if contrasted with the valuation of the ground floor and first floor as well as a passage measuring 52' 6' x 87' at Rs. 75,000/-. This contention cannot be accepted. It is in the evidence of D. W. 3 that according to the calculation of Rs. 75,000/-for the ground floor and first floor, the value of the second and third floors of the building will be about Rs. 82,500/-. including proportionate value of land. As already stated, the building on 91, Ekdalia Road is over a covered area of 1 cottah 11 chittacks and the open land is 3 cottahs 4 chittacks out of a total area of 4 cottahs 15 chittacks in the premises No. 91, Ekdalia Road, vide Ext. A. The second agreement Ext. 1(a) is in respect of the second and third floor as well as vacant land to the tune of 3 cottahs 2 chittacks and 1 sq. ft. Even assuming for the sake of argument that the valuation of the open land is to be done on the basis of the market rate as prevailing in 1972 and not as prevailing in 1982, the valuation of Rs. 1,00,000/- cannot but be inadequate as, to the proportionate value of Rs. 82,500/- for the second and third floor of the building, the value of 3 cottahs 2 chittacks and 1 sq. ft. of open land at the rate of Rs. 25,000/- per cottah, as done by D. W. 3, is to be added. It is to be stated in this connection that P. W. 1 could not also say if the rate of land on Ekdalia Rosd in 1972 was Rs. 25.000/- or Rs. 30,000/- per cottah. The evidence of D. W, 1 is that in 1972, the value of land at Ekdalia Road was between Rs. 35,000/- and Rs. 40,000/- per cottah and that at present the value is Rs. 1,00,000/- per cottah. Even according to 1972 market rate of Rs. 25,000/- per cottah, the rate being P. W. D. rate as per D. W. 3, the proportionate valuation of the second and third floor of the building, on the basis of the valuation in the first agreement for sale, at Rs. 82,500/- and the value of 3 cottahs 2 chittacks and 1 sq. ft. of open land at the rate of Rs. 25,000/- per cottah will far exceed Rs. 1,00,000/-. The valuation of the suit-premises and the open land and vacant space in the second agreement for sale is, thus, very low, as compared even with the valuation in 1972, what to speak of the valuation of the suit-premises and the open land and vacant space in 1982. Mr. Mitter has argued that when by the second agreement, the purchaser was given the option to purchase the premises within a period of ten years from the date of execution of the second agreement, after expiry of two years from that date, there is no reason why the valuation of the suit-premises as well as the vacant land and open space as in 1982 should not be considered. Even assuming for the sake of argument that in a suit for specific performance of contract, subsequent rise in price of land or building should not be taken into consideration even in a suit of this present type, the fact remains that the value of the suit-premises as well as the open land and vacant space has been laid in the second agreement at about half the real value on the basis of the market rate in 1972.

15. Argument has been advanced to show the uselessness of the vacant land and open space, mentioned in the second agreement, Ext. l(a). This argument is based on the evidence of D. W. 3 as well as the map appended to the deed of conveyance, Ext. 2. The evidence of D. W. 3 is that as per Schedule XVI of the Calcutta Municipal Act, one has to leave behind 6' 8' space and side space to the tune of 4 ft. D. W. 3 has stated that if this back space and side space be left out of consideration, a strip measuring 12' 6' in width will remain on which only structure with one room is possible. The map appended to the deed of conveyance, Ext. 2, shows the area of the vacant land as 2 cottahs 7 chittacks and 9 sq. ft. (72' X 24' 4'), excluding the back portion. The contention is that when, after leaving aside back space and side space in the vacant land, only one room could be constructed on a strip of land measuring 12' 6' in breadth, the value of the open space will be practically nil to a purchaser and as such, the value of the suit-premises as well as the open land and vacant space cannot be said to be shockingly low. This contention cannot be accepted. If a purchaser purchases a building with vacant space measuring about 2 cottahs 7 chittacks and 9 sq. ft., the value of the vacant space cannot be nil or considerably low than the market value of land in adjoining areas on the ground that more than one room in breadth cannot be constructed on the vacant space. Anybody can construct up to third floor even a single room in that vacant space after leaving aside the back space and side space. Moreover, if one gets the entire premises No. 91, Ekdalia Road, one need not leave so much side space, there is also a passage, mentioned in the deed of conveyance, Ext. 2, and measuring 52' 6' X 8' 2'. An open space is an amenity whose value cannot be nil, in so far as enjoyment of a building in another portion of the land is concerned. Considering all these facts, we are of the opinion that the value of the vacant land cannot be considerably low, as compared with the value of lands in the vicinity in 1972. We are also of the opinion that the value of the second and third floor as well as the vacant land and open space will be, even according to market rate in 1972, not merely Rs. 82,500 but about double that amount, even on the basis of evidences of K. C. Chatterjee (D. W. 3).

16. Mr. Mukherjee has laid great stress on the averments in the written statement for the purpose of showing the variance made by the defendant (D. W. 1) in his evidence and has argued that when the execution of the second agreement is not denied by the defendant (D. W. 1), who has admitted his signature on it as well as his signature below the receipt of consideration mentioned in it, the plaintiffs suit should not be defeated. It is no doubt true that there is variance between the written statement and the evidence of D. W. 1, the defendant. It is needless to discuss in details these variations. A court of law is entitled to accept a part of the testimony of a witness and to reject another part of its testimony as the doctrine 'Falsus to Uno, falsus in omnibus' (false in one thing, false in everything), is not a second rule of law. The plaintiff cannot, however, be allowed to dissect a written statement. If the plaintiff is to avail of the averments in the written statement or the additional written statement, going to show rather non-execution of the second deed of agreement by the defendant, the plaintiff should also be prepared to accept the other averments in the written statement, going to show that it was on the basis of the assurance of the plaintiff that he will allow the defendant to live in the suit-premises till his death that the second agreement was executed. As the plaintiff wants to avail of those parts of the written statement or the additional written statement which are favourable to him and to discard the other parts not favourable to him, such dissection of written statement or additional written statement being not permissible, the plaintiff's suit cannot be allowed to succeed in view of the variance of the case of the defendant in his written statement with his evidence.

17. It can be seen from what has been stated that as contrasted with the averments in the second agreement that at the time of the first agreement it was decided that the suit premises and the open land and vacant land should be sold at Rs. 10000/-, there is no such case by the plaintiff either in the plaint or in the first agreement, exhibit 1. The defendant read up to class X. It is in his evidence that he is not accustomed to write letter in English and that his friends help him in writing correspondence. Though the requisition of title, Ext. 5, is filled up by the defendant (D. W. 1), the evidence of D. W. 1 is that he filled up the requisition of title in presence of B. Sen (P. W. 4). It is not possible for a man dealing with music and reading up to class X and taking the help of his friends writing correspondence to understand the implication or significance of a deed of agreement for sale, which was not explained to him by P. W. 2, S. N. Basu, even as per the evidence of P. W. 1. The terms of the second agreement are one-sided, unfair and inequitable. The first agreement for sale was entered into during the Naxalite movement when the defendant was badly in need of somebody else to take care of his building in the premises No. 91. Ekdalia Road along with him. The defendant found in the plaintiff such a manT who happened to be an Orthopaedic Surgeon, though, even according to his own evidence, the plaintiff (P. W. 1) had not necessary money in 1972 to purchase even the ground floor and first floor of the premises for a sum of Rs. 75,000/-.

18. Considering the evidence on record, we are rather inclined to accept the contention of the defendant that the plaintiff assured the defendant that he would allow the defendant to live in the second floor and third floor of the building till his death and that, on the basis of this assurance, there were talks between the plaintiff and his father-in-law on the one hand, and the defendant on the other, prior to the expecution of the second agreement, for entering into an agreement for sale of the suit-premises, the vacant land and the open space so that the claims of the heirs of the defendant in this portion could be forestalled. The price of the suit-premises, the vacant land and the open space is much below the actual price, even according to the market rate prevailing in 1972. The offer by the defendant to make a gift of the suit-premises either to Dr. Mukherjee or to Bharat Sevasram Sangha was the result of the exasperation of the defendant towards the plaintiff for not keeping his promise of allowing the defendant to continue to stay in the suit-premises till his death, as per the understanding between the plaintiff and the defendant prior to the execution of the second agreement for sale between the parties.

19. In the light of the aforesaid facts, as transpiring from the evidence on record, we are not inclined to allow the plaintiff's prayer for specific performance of contract for sale.

20. Mr. Mukherjee has drawn our attention to several cases, he has referred to the case of K. Kalpana Saraswathi v. P. S. S. S. Chettiar, : [1980]2SCR293 , Prokash Chandra v. Angad Lal, : AIR1979SC1241 , Moolchand v. Ved Prakash, : AIR1981All152 , Sankaralinga v. Ratnaswami, : AIR1952Mad389 , Haradhan Debnath v. Bhagabai Dassi, ILR 41 Cal 852 : (AIR 1914 Cal 137), and Ramalinga v. Jagadammal, : AIR1951Mad612 . It is not understood as to how these cases can help Mr. Mukherjee. As already stated, the second agreement is rather an unique agreement wherein a purchaser has been given a period of 10 years to complete a purchase from the date of the agreement, after the expiry of two years from that date, as contrasted with the period of one month for completing such sale in the cases reported in : AIR1981All152 and : AIR1952Mad389 or a period of three months mentioned in the case reported in ILR 41 Cal 852 : (AIR 1914 Cal 137). As stated in the case of Prakash Chandra, : AIR1979SC1241 , the ordinary rule of granting specific performance ought to be denied when equitable points and the circumstances show that damages would constitute an adequate relief. The conduct of the plaintiff must be such as not to disentitle him from getting relief of specific performance and he must act fairly throughout. As already stated, the conduct of the plaintiff in the present case has not been clean throughout.

21. Under Explanation 2 to Section 25 of the Indian Contract Act, the inadequacy of the consideration may be taken into account by the court in determining the question whether the consent of the promisor was freely given. Inadequacy of the consideration mentioned in the second agreement cannot be the sole ground for refusing specific performance, in view of Explanation 1 to Section 20(2) of the Specific Relief Act, 1963. Under Explanation 1 to Section 20(2) of the Act, mere inadequacy of the consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b) of Section 20(2) of the Act. It is not stated in this Explanation 1 that the inadequacy of consideration or the hardship arising out of the contract should not also be taken into consideration, along with other circumstances, for considering whether it is equitable or inequitable to enforce the contract, as mentioned in Section 20(2)(c) of the Act, a new addition in the Act, though the equitable principle was all along been followed by different courts.

22. We have already quoted the relevant passage from Fry on Specific Performance of Contract, 6th Edition at page 190 to show the matters to be taken into consideration by a court in judging the fairness of contract. This is a case where not only the terms of the contract itself but also the mental condition of the defendant, the absence of any independent legal advice of the defendant, the presence of heirs of the defendant and the inadequacy of the price mentioned in the second contract show that the contract, which is one-sided, should not be enforced and that damages should constitute an adequate relief in the facts and circumstances of the present case.

23. Before parting with this case, it is to be stated that on 19-9-1984, a petition was filed by the respondent for acceptance of the documents as mentioned in annexures A and B to that petition, by way of additional evidence. This annexure A was actually purported draft of the second agreement, as approved by S. N. Basu (P. W. 2). It was sent by S. N. Basu to B. Sen under a cover letter which is annexure B to this petition for additional evidence. The petition for additional evidence was filed on alleging that B. Sen had to undergo a major operation on 6-2-1982 and was not attending the office at the time of giving evidence in court on 22-2-1982. It was alleged that because of his indisposition, B. Sen could not attend office since October 1981 and as such, could not produce in court the draft agreement along with the covering letter of S. N. Basu, acknowledging his due approval of the same. This petition is resisted by the appellant by filing an affidavit-in-opposition. It is not necessary to consider the contention of the appellant that the endorsement 'approved' as appearing in the draft agreement filed with the petition for additional evidence, was subsequently made as considering the facts and circumstances of the case, we are not, inclined to allow the prayer for taking the annexures A and B of the petition as additional evidence. We have already discussed the evidences of P. Ws. 1, 2 and 4 for the purpose of showing that B. Sen (P. W. 4) is not a reliable witness, in so far as his deposition, that S. N. Basu (P, W. 2) read over and explained the second agreement to the defendant or that P. W. 2 was highly qualified man, is concerned. We have also discussed the evidences of these P. Ws. 2 and 4 for the purpose of showing that no question was put to P. W. 2 about the alleged approval of any draft agreement by him, even after the cross-examination of P. W. 4, by recalling P. W. 2.

24. In these circumstances, if one is to allow the prayer of the plaintiff for taking the annexures A and B to the respondent's petition for additional evidence as evidence in this appeal, one will be giving the plaintiff an opportunity to fulfil his desire for enforcing the contract, though this should not be done in the facts and circumstances, already discussed by us. If actually any evidence is allowed to be led in for the purpose of showing that S. N. Basu approved the draft agreement as an Advocate for the defendant, there will be an end of the case of the defendant as the defendant would have then signed the agreement with full knowledge of its contents and would not be allowed by any Court to disentitle the plaintiff from enforcing the contract for sale. As the matter stands, it will be negation of justice if the plaintiff's prayer for allowing him to put in the annexures A and B to his petition for additional evidence be allowed at this stage of the suit, though there is no evidence by P. W, 2 to show that he had ever approved any draft agreement for sale for the defendant and though the positive evidence of P. W. 2 is that he had never acted in the transaction in respect of any of the two documents, exhibits 2 and l(a).

25. The result is that the appeal is to be allowed and the defendant-appellant should be asked to refund to the plaintiff-respondent the earnest money of Rs. 1000/- mentioned in the second agreement.

26. The appeal is, accordingly, allowed. The judgment and decree of the learned Subordinate Judge, second Court, Alipore are set aside subject to the condition that the defendant-appellant do deposit the sum of Rs. 1000/- (one thousand) in the court below to the credit of the plaintiff-respondent, within two months from this date. It is ordered that in the event of such deposit, within two months from this date, in the court below, the plaintiff-respondent, would be entitled to withdraw the sum of Rs. 1000/- in satisfaction of his dues towards earnest money and damages, if any, for not getting the decree for specific performance of contract. It is further ordered that in case of non-deposit of the sum of Rs. 1000/- by the appellant within two months from this date, the appeal shall stand dismissed and the decree shall be executable at once.

27. Parties shall bear their own costs of this appeal.

G.N. Ray, J.

I agree.


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