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Lalit Mohun Dutta Vs. Basudeb Dutta and anr. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3914 of 1974
Judge
Reported inAIR1976Cal430,80CWN774
ActsContract Act, 1872 - Section 25(1); ;Presidency Small Cause Courts Act, 1882 - Section 19
AppellantLalit Mohun Dutta
RespondentBasudeb Dutta and anr.
Appellant AdvocatePuspamoy Das Gupta, Adv.
Respondent AdvocateMahindra Nath Ghosh and ;Manoranjan Das, Advs.
DispositionApplication dismissed
Excerpt:
- .....for the petitioner, submitted that the full bench was in error in dismissing the plaintiff's suit as the agreements were not required in law to be registered under the registration act and as such the provisions of section 25 of the contract act in regard to registration had no application. the plaintiff was accordingly entitled to a decree on these agreements.7. mr. manindra nath ghose, learned advocate for the opposite parties, in effect conceded that the suit was maintainable in the court of the small causes. the court of small causes, calcutta under section 19 clause (h) of the presidency small cause courts act, 1882 has no jurisdiction in suits for specific performance or rescission of contracts. under section 10 of the specific relief act, 1963, specific performance of a.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule was obtained against the judgment and order of the Full Bench of the Court of Small Causes, Calcutta, dated June 12, 1974. By that order the defendants' application under Section 38 of the Presidency Small Cause Courts Act was allowed and the plaintiff's suit was dismissed in modification of the order passed by the trial Judge. The relevant facts are as follows:

The plaintiff instituted a suit for recovery of a sum of Rs. 1,000/- stated to be the unpaid consideration for the sale of his business to the defendants who are his sons. The plaintiff also included in the suit a claim of a sum of Rs. 2,450/- against the defendants, as the monthly payment of Rs. 50/- due from March 14, 1969 to March, 1971, for 24 months and 15 days on the basis of the two written agreements executed by each of the defendants on March 14, 1969. By these agreements each of the defendants agreed to pay to their father, the plaintiff, during his lifetime by way of pocket expenses a sum of Rs. 50/- in consideration of the great regard they had for their father. They however failed to pay the amounts mentioned above and the suit was instituted on April 24, 1971, in the Small Causes Court, Calcutta, being Suit No. 1392 of 1971, for the recovery of the same.

2-3. The suit was contested by the defendants who filed a joint written statement stating that the sum of Rupees 1,000/- representing the unpaid consideration was not payable as the plaintiff failed to perform his obligations under the sale agreement. In regard to the claim on the agreements it was said that the Court had no jurisdiction to try the suit and further the claim was untenable being based on a contract which was not registered as required in law.

4. The learned trial Judge on a trial on evidence held against the plaintiff in so far as the claim for Rs. 1,000/-was concerned. In regard to the other claim, it was held that the Court had jurisdiction to try the suit and the plaintiff was entitled to the amount as claimed. The suit was decreed in part for Rs. 2,450/- on contest with proportionate costs.

5. The defendants filed an application under Section 38 of the Act challenging the above decision and the Full Bench of the Court of Small Causes, Calcutta was of opinion that the agreements were not registered as required in law and accordingly the agreements were void. In that view of the matter, the judgment of the learned trial Judge was set aside in respect of the claim and the plaintiff's suit was dismissed. The present Rule was obtained by the plaintiff against this decision and is confined to the claim under the agreements.

6. Mr. Puspamoy Das Gupta, learned Advocate appearing for the petitioner, submitted that the Full Bench was in error in dismissing the plaintiff's suit as the agreements were not required in law to be registered under the Registration Act and as such the provisions of Section 25 of the Contract Act in regard to registration had no application. The plaintiff was accordingly entitled to a decree on these agreements.

7. Mr. Manindra Nath Ghose, learned Advocate for the Opposite Parties, in effect conceded that the suit was maintainable in the Court of the Small Causes. The Court of Small Causes, Calcutta under Section 19 Clause (h) of the Presidency Small Cause Courts Act, 1882 has no jurisdiction in suits for specific performance or rescission of contracts. Under Section 10 of the Specific Relief Act, 1963, specific performance of a contract can only be enforceable when there exists no standard for ascertaining the actual damage for non-performance of the act agreed to be done. In the case before us there is no difficulty in ascertaining the actual amount that would be payable for non-performance of the contract. Accordingly I do not think that there is any substance in this point which at one time was taken by Mr. Das learned Advocate for the opposite parties, at an earlier hearing.

8. The next point requiring consideration is whether this agreement is a valid and enforceable contract under the Indian Contract Act 1872, tO the general rule that agreement without consideration is void, there are some exceptions as provided in Section 25 of the said Act. The relevant provisions we are concerned with are:--

'Section 25. An agreement made without consideration is void unless --

(1) It is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other, or unless(2) * * * *(3) * * * *'

9. Under the Indian Registration Act, 1908 there is no provision for registration of an agreement simpliciter though there are various provisions for registration of other documents. Mr. Ghose contended that if it was intended that the 'documents' in Sub-section (1) of Section 25 of the Contract Act would include only agreement then the provision would be redundant, for if the agreements were to be registered under the Indian Registration Act this provision would be a superfluity.

10. It, however, appears to me that Indian Contract Act is a special enactment providing specifically for contracts and matters incidental thereto. In Section 10 of the said Act it is provided that all agreements would be contracts if they are made by free consent of parties competent to contract and made for lawful consideration and with a lawful object and are not expressly declared to be void. To this, there is a further provision which is to the following effect 'Nothing herein contained shall affect any law in force in India and not hereby expresely repealed by which any contract is required to be made in writing or in the presence of witnesses or any law relating to the registration of documents'. The word 'documents' obviously includes and is confined to agreements and any special provision in respect thereto by any other Act has been specifically preserved. In the same sense it has been used in Section 25, so that, if under any law such a documents is required to be registered its provision would not be affected by anything contained in Section 25. In this view of the matter, the agreements simpliciter in my opinion, are not required to be registered under the law for the time being in force for registration of such agreements but even so such documents are enforceable in law. The plaintiff accordingly is entitled to a decree on the basis of these agreements, the execution or validity of which otherwise has not been disputed before this Court.

11. The Rule accordingly succeeds and is made absolute. The impugned order is set aside and the plaintiff's suit is decreed for Rs. 1,225/- against each of the defendants in all for Rs. 2,450/- with proportionate costs.

12. There will be no order as to costs.


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