1970 PLP 816 (SCMR)

M. R. KHAN, J.‑This petition for special leave to appeal is directed against the judgment and decree of a Division Bench of the High Court of East Pakistan, affirming those of the trial Court passed in a suit for specific performance of a contract of sale. The subject‑matter of the suit was the Mercantile Bank Building within the municipal town of Khulna. The case of the plaintiff Abul Hussain (respondent No. 1 herein) was that he entered into an oral contract with the defendant No. 1 Kausaruddin (respondent No. 2 herein) and his brother Atiur Rahman (defendant No. 2 in the suit, but not a party in this petition) for the purchase of the Mercantile Bank Building for a consideration of Rs. 65,

000. The contract was finalized on the15th August 1958. In terms of the contract, the plaintiff was to pay the defendant a sum of Rs. 58,000 within one month and the balance consideration was to be paid at the time of the registration, of the sale deed on the defendant's obtaining an income‑tax Clearance Certificate. The plaintiff' paid Rs. 58,100 within one month of the contract by instalments. The defendants Nos. 1 and 2 deferred the execution of the sale deed on one pretext or the other. After the defendants had been very much pressed for execution of sale deed, they gave out that they would sell the property to some others as the value of the property had increased considerably. The plaintiff was then obliged to institute the suit for specific performance of the contract of sale. The defendant No. 1 contested the suit denying the alleged contract. He, however, admitted in his written statement that he had received Rs. 58,000 from the plaintiff, but claimed that out of the said amount a sum of Rs. 25,000 was on account of repayment of loan taken from him by the plaintiff and that the balance of Rs. 33,000 was an advance of loan to him by the plaintiff. It was further contended by the defendant No. L that his brother, the defendant No. 2 had no interest in the Mercantile Bank Building and that the said property along with some other property in the district of Jessore was already sold away by him to Mumtazul Karim of Jessore. After the filing of the written statement by the defendant No. 1, the plaintiff impleaded Mumtazul Karim and his five minor sons as defendants Nos. 3 ‑to 8 in the suit alleging that Mumtazul Karim, in collusion with defendants Nos. 1 and 2, created some fraudulent transfer deeds in his own name and in the names of his minor sons in respect of the Mercantile Bank Building. Mumtazul Karim appeared in the suit and filed a written statement on his behalf and on behalf of his five minor sons. Their defence was that they purchased the Mercantile Bank Building along with some other property of Jessore from the defendant No. 1 for a total consideration of Rs. 88,

200. They claimed to be bona fide purchasers of those properties for value without notice of the plaintiff's alleged contract of sale with regard to the Mercantile Bank Building. The trial Court found on evidence that the contract of sale, as alleged by the plaintiff was with the defendant No. 1 alone; that the plaintiff paid Rs. 58,000 to the defendant No. 1 and that the added defendants Nos. 3 to 8 were not transferees inasmuch as their kobalas obtained from the defendant No. 1 were registered only during the pendency of the plaintiff's suit for specific performance of contract of sale. Accordingly, the trial Court decreed the suit subject to the plaintiff's depositing the balance consideration of Rs. 7,000 within one month of the decree. Against this decree, an appeal was filed in the High Court of East Pakistan by the added defendants Nos. 3 to E, but the defendant No. 1 did not file any appeal. A Division Bench of the High Court agreed with the finding of the trial Court that the contract of sale as alleged by the plaintiff was between him and the defendant No. 1 and that the defendant No. 1 received Rs. 58,000 from the plaintiff within the stipulated period. After an elaborate discussion of the evidence and the circumstances of the case, the High Court, however, found that the defendants Nos. 3 to 8 were not bona fide purchasers of the Mercantile Bank Building for value without notice of the plaintiff's contract of sale; rather the High Court came to a positive finding that the defendant No. 3 had definite knowledge about the plaintiff's contract before obtaining kobalas from the defendant No.

1. In view of these findings, the High Court dismissed the appeal and armed the decree of the trial Court. The plaintiff claimed to have paid Rs. 58,100 to the defendant No. 1 within a period of one month of the contract. Both the Courts below, however, held that during the said period a sum of Rs. 58,000 was received by the defendant No. 1 from the plaintiff. Thus, there was a difference of Rs.

100. In view of this difference as to the amount paid, Mr. D. C. Bhattacharjee, learned counsel for the petitioners contends that although the plaintiff made out the case that he was willing to pay the balance consideration amounting to Rs. 6,900, there was absence of continued readiness on the part of the plaintiff to pay the balance consideration which, according to the findings of the Courts below, was Rs. 7,000 and not Rs. 6,

900. In other words, the contention of Mr. Bhattacharjee is that the plaintiff was ready to pay Rs. 6,900 only and not the balance consideration of Rs. 7,000 as found by the Courts below. It is, therefore, contended by the learned counsel that the plaintiff, in the absence of his continued readiness to pay the entire balance consideration, was not entitled to a decree for specific performance of the contract of sale. In support of this contention, he has also cited the case of Rustom Ali v. Ahider Rahman (45 C W N 837). The facts of the cited case are quite different from the facts of the present case. In the cited case, there was a dispute between the parties as to the amount of the purchase price. The plaintiff in that case asserted that the defendant agreed to sell the property for Rs. 85, but the defendant of that case contended that the price settled was Rs.

130. The Courts also found in that case that the property was contracted to be sold for " Rs.

130. As, however, there was a dispute between the parties about the amount of the conside ration, it was held in the said case that the plaintiff was not entitled to a decree for specific performance as he was not in readiness to pay the whole of the contractual price. In the present case, the defendant No. 1 in his written statement, admitted to have received Rs. 58,000 from the plaintiff, but contended that out of this amount a sum of Rs. 25,000 was on account of repayment of loan taken by the plaintiff and the balance of Rs. 33,000 was an advance of the loan given to him by the plaintiff: Both the Courts below disbelieved the plea of repayment of loan and advance of loan. Having disbelieved this plea, the Courts below took that the defendant, on his own admission in the written statement, received Rs. 58,000 only from the plaintiff, but neither Court took into consideration the plaintiff's case that he had paid Rs. 58,100 by installments within one month of the contract of sale. According to the plaintiff's case in the plaint, as reproduced in paragraph 3 of the special leave petition, the plaintiff paid to the defendant No. 1‑ Rs. 25,000 and Rs. 100 on 16‑8‑1958, Rs. 16,000 on 19‑8‑1958, Rs. 9,000 on 1‑9‑1958 and Rs. 8,000 on 12‑9‑1958. The total of these sums comes to Rs. 58,

100. The petitioners have stated in paragraph 10 of the special leave petition that the plaintiff produced some receipts regarding payment of money amounting to Rs. 58,

100. These receipts were admitted into evidence and marked Exh. 1 series. Although the trial Court took notice of these receipts, it did not verify the total of the amount of those receipts and proceeded on the footing that the defendant No. 1 received Rs. 58,000 only from the plaintiff, as admitted by him in the written statement. In the circumstance, it cannot be said that the plaintiff was not always ready and willing to pay the entire balance consideration. Mr. Bhattacharjee next contends that the plaintiff was guilty of delay and laches and is not, therefore, entitled to a decree for specific performance. The suit was brought well within the period of limitation, and the delay in filing the suit was apparently due to the deferment of the execution of the sale deed by the defendant No. 1 on one pretext or the other. Mr. Bhattacharjee lastly contends that plaintiff's suit being only for specific performance of a contract of sale, the High Court erred in granting a decree for khas possession in favour of the plaintiff. It appears that the High Court also decreed that the plaintiff shall get khas possession of the property on execution and registration of the conveyance. This decree for khas possession in a suit for specific performance of contract of sale is redundant. However, the petitioners cannot be said to have been prejudiced by this decree for khas possession inasmuch as in execution of the decree for specific performance of the contract, the plaintiff can also get recovery of possession. In the result we do not find any substance in this petition. The petition is, accordingly, dismissed. Petition dismissed.