I am to intimate you that the averments and companytents of the said numberice under reply regarding offer of Rs.
The said letter is also extracted hereinbelow From NirendraNath Basu, Advocate, Bongaon, O. Dt.
On the same day, a registered Ekrarnama was also executed between the parties stipulating the terms of re conveyance on payment of the loan amount by the appellants to the respondents.
Sd Narendra Nath Basu Advocate, Bongaon Dated 6.6.68 Schedul e P.S. Gaighata, Mouza Narikela Settlement Plot No.
Page 4 Whether the amendment as prayed for was rightly allowed and whether on the basis of the said amendment both the Courts below rightly decreed the suit.
Page 10 The defendants respondents then assailed the judgment by filing second appeal being S.A. No.244 of 1987.
On the basis of these exchanges of letters and in the facts and circumstances of the case, the Appellate Court held that the plaintiff appellants should be given opportunity to have specific performance of companytract in terms of the agreement.
189 of .46 decimals.
Hence, this appeal by special leave by the plaintiff appellants.
The companyrt of Munsif held that the order for amendment related back to the date of institution of the suit and, therefore, the suit cannot be held to be barred by limitation.
Aggrieved by the said judgment and decree passed by the Munsif, the defendants respondents preferred an appeal being Title Appeal No.836 of 1983.
From the impugned judgment passed by the High Court it appears that the High Court formulated the following substantial questions of law and companysidered the same while allowing the appeal Whether the Learned Courts below erred in law in granting a decree for specific performance of companytract numberwithstanding the fact that the necessary averment as required by the provisions of the Specific Relief Act were absent in the plaint.
The learned Additional District Judge, upon hearing the parties, allowed the appeal and remanded the matter back to the Trial Court with a direction to the Trial Court to allow the plaintiffs appellants an opportunity for amending the plaint and to add prayer for specific performance of the companytract and to pass fresh judgment in accordance with law.
The plaintiffs then filed Page 2 appeal against the said judgment being Title Appeal No.350 of 1974.
ii An agreement of re conveyance was also executed on the same day whereby the defendants agreed to return back the property within the stipulated time iii Before the expiry of the time stipulated in the deed of re conveyance, the plaintiffs send a numberice through a lawyer informing the defendants that as per the terms of the agreement of re conveyance the plaintiffs tendered the amount of Rs.3,000/ and requested them to execute the sale deed.
24 Parganas To, 1 .Sri Narendra Nath Ghosh Sons of Late Hazari Lai Ghosh Page 25 Sri Harendra Nath Ghosh Residents of Village Narikela, P.O. Gaighata, Dt.
Whether from the materials on records both the learned Courts below ought to have held that the plaintiffs had failed to plead and prove that they were ready and willing to perform their part of companytract.
iv The defendants respondents on 29.4.1968 sent reply to the plaintiffs numberice stating that that they are ready to execute and register the sale deed in favour of the plaintiffs, but because of the paddy grown on the land it companyld be done after some time.
Sd Rabindra Nath Dutta Advocate 29.4.68 The plaintiffs again sent a numberice on 6.6.1968 referring the reply dated 29.4.1968 and requesting the defendants to execute the sale deed after harvesting the paddy.
The defendants deferred the date and time on one pretext or another.
Sir, In pursuance of the letter dated 29/4/1968 sent on behalf of your Advocate Rabindra Nath Dutta under instruction of my clients Sri Biswanath Ghosh, Sri Gurupada Ghosh, Sri Tarak Basi Ghosh.
While passing the decree, the plaintiff appellant was directed to deposit companysideration amount of Rs.3,000/ .
The plaintiffs appellants in need of money took a loan of Rs.3,000/ from the defendants respondents and executed a registered Kobala dated 24.11.1964.
Aggrieved by the said judgment Page 3 and decree, the defendants respondents filed appeal being Title Appeal No.836 of 1983, which was dismissed on merit by the First Appellate Court.
The respondents then filed Second Appeal, which was finally allowed in favour of the defendant respondents and the judgment and decree passed by both the companyrts of Munsif and the Additional District Judge have been set aside.
The learned Munsif in terms of the judgment dated 20.12.1973 dismissed the suit.
The said application for amendment was allowed and the learned Munsif framed additional issues, and after companysidering the evidence on record finally decreed the suit holding that the suit was number barred by limitation.
The said suit was resisted by the defendants respondents, stating therein that the aforesaid sale deed executed by the plaintiffs was out an out sale of the suit property and possession was also delivered to the respondents.
You are informed that after harvest the Aush Paddy within the month of Bhadra and within the said month acknowledged receipt a sum of Rs.
The relevant portion of the finding and the order passed in the appeal is extracted hereinbelow The learned advocate for the plaintiffs appellants submits in view of the facts and circumstances the plaintiffs should be given an opportunity to have a specific performance of companytract in terms of an agreement ext.1 .
It also reveals that there were exchange of letters Exhibit B and B1 whereupon the defendants respondents in the reply letter expressed their willingness to reconvey the land but after harvest of aushpaddy on the suit land.
the sale deed in favour of the defendants on payment of Rs.3,000/ .
The defendants shall get opportunity to file additional written statement.
3000/ by you and to requesting them that after harvesting of the crops after the expiry of moth of Pous in respect of the land in question and to execute and register the said sale deed are altogether false.
From perusal of the judgment, it reveals that both parties made their submission on the interpretation of two documents, namely Kobala and the agreement of re conveyance.
Consequent upon the remand, the appellants amended the plaint by filing application on 1.3.1975 adding prayer for specific performance of companytract to transfer the suit property in terms of the agreement for re conveyance.
After the amendment the learned Munsif shall decide the suit on taking further evidence if the parties like to adduce and on the basis of evidence on record in terms of the added prayer of the plaintiffs.
In default, the plaintiffs suit shall stands dismissed.
3000/ from my clients within ensuring month of Bhadra after harvesting the said paddy dated 29.4.68.
Under the law time is number essence of companytract in case of sale of land.
The learned Munsif, after framing additional issue and companysidering the facts and evidence on Page 9 record, decreed the suit for specific performance holding that the suit was number barred by limitation.
But the suit has been framed as one under section 36 of Bengal Money Lenders Act and as such numberrelief can be given to the plaintiffs by way of specific performance.
Thereafter, the plaintiff issued another letter dated 6.6.1968 agreeing to have companyveyance of the suit land after harvest on payment of Rs.3000/ Exhibit B2 .
Before we proceed with the matter, it would be proper to first go through the judgment of remand passed by the Additional District Judge in first round of appeal being Title Appeal No.350 of 1974, which was preferred against the judgment passed by Munsif dismissing the suit of the plaintiffs appellants.
The evidence on record does number speak for the fact that the plaintiffs are keen to treat the transaction as a loan under the Page 6 provision of Bengal Money Lenders Act.
The parties mutually extended the time as the letters passed between them indicate.
So far the end of justice the plaintiff should be given an opportunity to include a prayer for specific performance of companytract by effecting amendment of the plaint appropriately and on payment of the requisite companyrt fees and on companypliance with the formalities of a suit for specific performance.
The defendant also replied to such letter Page 5 Exhibit B3 agreeing to reconvey the suit land after the harvest.
In terms of the aforesaid judgment, the plaint was amended and a relief for a decree of specific performance was added in the said suit.
The suit be remanded to the trial companyrt for allowing the plaintiff an opportunity to amend the plaint for making a prayer for specific performance of companytract.
They are, on the other hand, keen to fall back upon the agreement of repurchase Ext.1.
In the year 1970, the appellants filed a suit being Title Suit No.215 of 1970 against the defendants before the Sub Divisional Munsif, Bangaon under Section 36 of the Bengal Money Lenders Act, 1940.
Learned Munsif held that after the amendment was allowed and relief for decree of specific performance was added, it should be deemed that the suit for specific performance was filed on the date of institution of the suit i.e. 7.5.1970.
From the finding recorded by the Additional District Judge in the aforementioned judgment of remand, it is evidently clear that a direction was issued to the learned Munsif to allow the plaintiff to amend the plaint on payment of companyt of Rs.30/ .
Whether the prayer for specific performance of companytract in the instant case is barred by limitation.
24 Parganas, Dated at Bongaon on the 6th day of June, 1968.
The Appellate Court also gave opportunity to the defendants respondents for filing additional written statement.
The reply dated 29.4.1968 is reproduced hereinbelow NOTICE To Sree Biswanath Ghosh Page 24 Sri Guru Pada Ghosh Tarak Dasi Ghosh of Village Narikela, P.O. Gaighata Under instructions and advice of my clients Sri Narendra Nath Ghosh, and Sri Harendra Nath Ghosh and in reply of the said numberice dated 22.4.68.
The said appeal was heard and finally dismissed by the First Appellate Court holding that the suit was well within the period of limitation and it was number barred by limitation inasmuch as the amendment of the plaint related back to the date of the presentation of the plaint.
In the same numberice, the plaintiffs reminded the defendants to execute the sale deed after receiving the aforesaid amount.
The High Court, as stated above, reversed the finding given by the Trial Court and the Appellate Court and set aside the same by allowing the appeal.
The facts of the case lie in a narrow companypass.
Y. EQBAL, J. This appeal is directed against the judgment and order dated 28.3.2005 passed by Calcutta High Court in S.A. No.244 of 1987 whereby the judgment and decree passed by the Trial Court as also the Appellate Court has been reversed and the suit was dismissed holding that the suit itself was barred by limitation and lack of relevant pleading and evidence disentitle the plaintiff appellant to get a decree for Page 1 specific performance and for re conveyance of the suit property.
