Abdul Huq Vs. The Oriental Bank Ltd. and others, 2 LNJ (2013) 1

Case No: First Appeal No. 269 of 2011

Judge: Sharif Uddin Chaklader,

Court: High Court Division,,

Advocate: Mr. S.M. Abdur Rouf,,

Citation: 2 LNJ (2013) 1

Case Year: 2013

Appellant: Abdul Huq

Respondent: The Oriental Bank Ltd. and others

Delivery Date: 2012-06-17

HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
 
Sharif Uddin Chaklader, J.
And
Md Badruzzaman, J.
 
Judgment
17.06.2012
  Abdul Huq
...Plaintiff -Appellant.
Vs.
The Oriental Bank Ltd. and others.
..Defendant -Respondents.
 

Specific Relief Act (I of 1877)
Sections 12, 32, 72, 73 and 77
The learned trial Judge has found that consideration money has been paid, sale deed has been executed, no fraud has been committed and plaintiff has proved his case but the suit was not decreed on the ground that required formalities under Registration Act has not been exhausted by the plaintiff. The provisions of sections 32, 72, 73 and 77 are not at all applicable in the instant case, the plaintiff is entitled to get a decree to register the sale deed.

The learned trial Judge found the contract has been conducted as the learned Judge found its execution has been done, consideration money has been paid, no fraud has been committed and plaintiff proved his case, only registration of the Kabala requires to be done which on the findings of the learned Judge ought to be ordered which she did not on the reason that required formalities under Registration Act has not been exhausted by the plaintiff which the learned Judge done on misunderstanding of  law, Section 32 of Registration Act direct the executants (defendant) to present the document for registration, Section 72 for filing appeal before the Registrar against an order passed by the sub-Registrar refusing to register the deed, Section 73 relating application to Registrar where Sub-Registrar refused to register the deed on ground of denial of execution and Section 77 for filing suit against the order of refusal by Registrar. We do not understand how these sections of Registration Act attracts on the facts of the given the case. Moreover, it is not the case of defendant Bank.  From an overall consideration of the facts of the instant case we have seen plaintiff successfully make out a case of actual performance of a contract and it has all the essential of a contract valid and binding in law in order to be enforceable in law....(21)

The judgment and decree dated 11.7.2011 passed by the learned Joint Directed Judge, 1st Court, Gazipur dismissing the Title Suit No. 195 of 2010 is set aside. Title Suit No. 43 of 2007 renumbered as Title Suit No. 195 of 2007 is decreed. Defendant Bank is directed to present the executed deed before the Sub-Registrar Gazipur and delivered possession of the suit land within 30 days from the date of receive of this judgment by the learned Judge, failing which decree shall be executed as per law....(24)

Haji Foyzuddin and others Vs. Mohammad Serajul Haq Mia and others, 14 DLR 148; Quazi Din Mohammad Vs. Al-haj Arzan Ali and another, 47 DLR (AD) 48 and Hafez Ahmed Vs. Obedur Rahman and others, 7 DLR (AD) 263, ref.
 
Mr. S.M. Abdur Rouf, Advocate
---For the plaintiff-appellant
No one appears.
---For the defendant-respondents.

First Appeal No. 269 of 2011
 
JUDGMENT
Sharif Uddin Chaklader,J.
 
This appeal by the plaintiff directed against judgment and decree dated 11.7.2011 passed by the learned Joint Directed Judge, 1st Court, Gazipur dismissing Title Suit No. 195 of 2010 thereby refusing to register the deed of suit for specific performance of a contract.
 
Plaintiff-appellant instituted the aforesaid suit with prayer as:-
(ক) “তফসিল বর্নিত সম্পত্তি চুক্তি প্রবলত্র্রমে একটি নির্দিষ্ট সময়ের মধো বাদী বরাবরে সাফ কবলা দলি রেজিষ্ট্রি করিয়া দেওয়ার জন্য বিবাদীদের বিরুদ্ধে রায় ও ডিত্র্রী প্রচার করিতে এবং নির্ধারিত সময়ের মধ্যে তফসিল বর্নিত সম্পত্তির দখল পজেশন বাদী বরাবরে বুঝাইয়া দেওয়ার জন্য বিবাদীদের নির্দেশ দিয়া ডিত্র্রী দিতে এবং নির্ধারিত সময়ের মধ্যে উক্ত দলিল বিবাদী পক্ষ কর্তৃক বাদী বরাবরে রেজিষ্ট্রি সহ দখল পজেশন বুঝাইয়া না দিলে মাননীয় আদালতের মাধ্যমে তপসিল বর্নিত সম্পত্তির রেজিষ্ট্রি ও দখল পজেশন বুঝাইয়া দিবার বিহীত আদেশ দিতে।”

In the plaint the averments are that, Aga Ahmed Yousuf by 5 saf kabala deeds in between 25.01.1990 and 15.7.1990 purchased 2 acres 20 decimals of land and mortgaged the land in favour of Bangladesh Leaf Tobacco Company Ltd. with Al Baraka Bank Ltd. which later on converted to Oriental Bank Ltd. by mortgage deed No. 9264 dated 3.5.2000. Aga Ahmed Yousuf also registered a power of attorney on 29.5.2000 giving power to the Bank to sell the suit land if required for realizing mortgage money. Bank became absolute owner as per Artha Wrin Adalat Ain, 2003. Aga Ahmed Yousuf having failed to repay the loan, Bank published legal notice in daily ‘Prothom Alo’ on 16.01.2006 for auction selling the suit property. Plaintiff having participated in auction sale became highest bidder at Tk. 16,00,000/=. Bank decided to sell the property to plaintiff. Bank under memo recovery/B-13/12-88 dated 21.3.2006 direct the plaintiff to pay the auction money and if plaintiff pay the auction money, within 15 days the sale deed would be registered. Plaintiff paid the auction money on 19.4.2006 by Pay Order No. D-BAN 18059 dated 19.4.2006 of Dhaka Bank Ltd. Thereafter, the Bank vide Memo No. INV: 2006/6752 TOB-PO DB 2006/6752 dated 19.6.2006 gave power to Shamim Ahmed, Assistant Executive Officer, to register the sale deed in favour of the plaintiff. As per advice of the Bank, plaintiff through his lawyer prepared a sale deed. Mr. Monwar Hossain, legal adviser of the Bank execute the deed and inform the Sub-Registrar of Gazipur Sadar, on 19.6.2006 but thereafter, defendant Bank for the last 9 months keep silence and did not register the deed. Plaintiff through his lawyer issued legal notice on 13.9.2006 but the defendant did not response to the legal notice, hence the suit.
 
Defendant Bank contested the suit by filing written statement. It is the specific case of defendant Bank that the borrower, Bangladesh Leaf Tobacco Company Ltd. Jatiya Scout Bhaban 9th-12 Floor, 70/1, purana paltan line, Kakrail, Dhaka, got Bai-Muazwei facility of Tk. 1.50 crore from the defendant Bank on 25.05.2000. The said loan facility subsequently was renewed several times. The dues of the borrower was Tk. 2,83,95,311.78 as stand on 30.9.2005 and present dues to the Bank is at Tk. 3,47,03, 269.00 as on 31.12.2007. The facilities were secured by mortgaging 2.20 acres of land i.e. the suit land at Gazipur District. There is no other security to recover the dues. In 2001, M/S G.K. Adjusters Ltd. a surveyor company assessed the market value of the said mortgaged property at Tk.1,77,40,000.00. The borrower having defaulted to adjust the dues, the Bank arranged to sell the property at auction under the provisions of section 12(3) of the Artha Wrin, Adalat Act, 2003, but none participated in auction. Thereafter Bank’s the then recovery agent M/S Desmination Trade Syndicate managed the plaintiff as buyer who in collusion with others offered only Tk. 16,00,000/=. It may be stated that the plaintiff in the same manner purchased some other mortgaged properties of the Bank. 
 
Defendant Bank further stated that although the plaintiff deposited the full value but the sale as being at low price was objected by Bangladesh Bank who took over the management of the defendant Bank. After taking over by Bangladesh Bank, the present management of the defendant Bank is also considering that it will be unjust and detrimental to the interest of the Bank if the property is sold at such a low price. It is further case of defendant Bank that the bank deals with public money who will be ultimate sufferer if the securities are disposed of at such low price keeping Bank’s huge dues pending. It is further case of defendant Bank that the owner of the property who has mortgaged the property has also objected to sell the property at such a low price. It is further case of defendant Bank that “In fact the plaintiff in collusion with the recovery agent and the then Bank management managed to purchase the property at a negligence price.”
 
In the suit, plaintiff examined 1 witness and defendant examined 3 witnesses. Plaintiff exhibited a number of documents as well as defendant also exhibited a number of documents which are exhibit 1 to 10 series and exhibits ‘Ka’ to ‘Cha’ series. Learned Judge dismissed the suit.
 
In dismissing the suit, learned Judge found that the deed was executed and also found that unless there be any allegation of fraud practiced defendant can not refuse to register the deed. Learned Judge found that defendant failed to prove that plaintiff practiced fraud in purchasing the suit property at Tk. 16,00,000/=. Learned Judge also found that on the ground of low price defendant can not refuse to execute and register the kabala. Learned Judge also found that Bangladesh Bank can not objected for selling the property at low price and Bangladesh Bank cannot objected for registering the deed. Learned Judge also found that deed has been completed for registering the same. Thereafter, learned Judge on taking into consideration section 32,72, 73 and 74 of the Registration Act refused to decree the suit that plaintiff did not exhausted the aforesaid provisions of law.
 
Mr. S. M. Abdur Rouf, learned Advocate, appearing for the plaintiff-appellant, submits that, the learned Judge after finding that there is no fraud practice in selling or purchasing the suit property and also deed having been executed by the Bank authority, committed gross illegality in not decree the suit unnecessarily invoking different provision of Registration Act which are not at all relevant on the fact of the given case. Learned Advocate further submits that taking recourse to Registration Act in a suit for specific performance of contract is beyond the provision of law as the provisions of Registration Act on the fact of the given case are not at all applicable.
 
Learned Advocate in support of his submissions relied on the case of Hazi Goyzuddin and others -Vs- Mahammed Serajul Haq Mia and others, 14 DLR 148, the case of Quazi Din Mohammad-Vs-Al-haj Arzan Ali and another, 47 DLR (AD) 48 and the case of Hafez Ahmed –Vs- Obedur Rahman and others, 7 DLR (AD) 263.
 
In 14 DLR it is held that “It is immaterial whether the executed document was presented  for registration or not or there was failure in a suit under  the Registration Act or its infructuous determination, because the cause of action for a suit for specific performance of contract is quite distinct and separate from the cause of action for a suit under the Registration Act, in one, the cause of action is the original contract and in the other the cause of action is the refusal to get the kabala registered and the scope of inquiry in the two suits are quite different. On course, if the executed document is registered there is nothing left to specifically enforced by a suit for specific performance because the contract is executed and no contract is subsisting.”
 
Be that as it may, section 27 of the specific Relief Act provides:-
“Except as otherwise provided by this chapter specific performance of a contract may be enforced against-
  1. Either party thereto;
  2. Any other person claiming under him by a title arising subsequently to the contract, expect a transferee for value who has paid his money in good faith and without notice of the  original contract;”
 
This provision lays down a general rule that the original contract may be specifically enforced against a subsequent transferee but allows an exception to that general rule and it is to the subsequent transferee for value without notice and it has been held in the case of Rhup Narain Singh alias Shyam Narain Singh v. Gokhul Chand Mahton & ors. that it is clearly for the transferee to establish the circumstances which will allow him to retain the benefit to get. Their Lordships of the Privy Council further observed:
“Further, the subsequent transferee is the person within whose knowledge the facts as to 9 whether he has paid and whether he had notice of the original contract lie, and the provisions of section 103 and 106 of the Indian Evidence Act, 1872, have a bearing on the question.”
 
The question is whether a suit for specific performance of a contract of sale of immoveable property lies in view of the remedy available under section 77 of the Registration Act, 1901. An answer to this question will depend upon whether or not section 77 of the Registration Act bars Specific performance of a contract of sale under the specific Relief Act, 1877, either expressly or by implication. Sub-section 9(I) of section 77 which is material here runs thus:-

    “Where the Registrar refuses to order the document to be registered, under section 72 or section 76, any person claiming under such document, or his representative, assign or agent may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction situate the office in which the document is sought to be registered a suit for decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree” Obviously, section 77 does not expressly bar specific performance of a contract of ale if it is otherwise liable to be specifically enforced under the Specific Relief Act. In order to determine if section 77 bars specific performance of a contract of sale by implication it is necessary to examine the scope and purpose of a suit under that section and those of a suit for specific performance of contract of sale under the Specific Relief Act. The Registration Act deals with registration of documents generally. According to the scheme of that Act, every document to be registered there under may be presented at the proper registration office by its executants or by the persons claiming under the same or by their duly authorized agents, vide section 32.
 
On such appeal or application, the Registrar may direct the document to be registered under section 72 or section 75, or refuse to do so under section 72 or 76. Where the Registrar refuses to order the document to be registered, the person claiming under such document may, within thirty days after the making of the order of refusal, institute in the Civil Court of appropriate jurisdiction, a suit under section 77 for a decree directing the document to be registered Thus it will appear that the sole purpose of a suit under section 77 is to procure registration was refused initially by the Sub-Registrar and ultimately by the Registrar. Acting under section 77, a Civil Court can do only what the Registrar could have done. Therefore, inquiry by the Court in a suit under the said section is confined to the plaints mentioned in section 74, namely, (a) whether the document has been executed, and (b) whether the requirements of the registration law have been complied with. In such a suit, the Court is not concerned with the validity or legal effect of the document and, as such, it cannot inquire into defences like fraud, misrepresentation, undue influence, coercion, duress, want of consideration and matters affecting the validity of the document. But, all such matters can be inquired into by the Court in a suit for specific performance of a contract of sale, if these are raised therein by the party opposing performance of the contract. A decree in a suit under section 77 of the Registration Act affects only the document concerned but does not strike at the transaction between the contending parties. Therefore, the Court’s refused to pass a decree in a suit under section 77 directing the registration of the document cannot affect the contract of sale which remains unperformed until the deed of sale is registered.”
 
Thus, a decree in suit under section 77 affects only the document, but a decree in a suit for specific performance of a contract strikes at the transaction itself, and the reliefs obtainable in a suit for specific performance which may in appropriate cases, include recovery or confirmation of possession, cannot be had in a suit under section 77. Also the cause of action in the said two classes of suits is different. The cause of action in a suit under section 77 arises on the Registrar’s refusal to register the document, but the cause of action in a suit of the other class is the breach of the contract by the person contracting to sell. Thus, it is quite clear that the scope and purpose of a suit under section 77 of the Registration Act and those of a suit for specific performance of a contract of sale are different. A suit for specific performance of a contract of sale provides a separate remedy based on a cause of action which is independent and separate from the cause of action for a suit under section 77 which is apparently an enabling provision cannot be construed as providing the only exclusive remedy to the person claiming under the unregistered document. Section 77 being an enabling provision the person claiming under the unregistered document may being a suit under the section for procuring only the registration of the document and if he chooses to do the suit must be brought within thirty days after the Registrar’s order refusing its registration. As the said section does not provide the only exclusive remedy, separate suit under the Specific Relief Act for the enforcement of the contract itself is maintainable if it is not otherwise barred.”
 
In the case of 47 DLR it is held that “Section 28(a) of the Specific Relief Act reads: “Specific performance cannot be enforced if the consideration to be received is so grossly inadequate, with reference to the state of things existing at the date of the contract as to be either by itself or coupled with other circumstances, evidence of fraud or of undue advantage taken by the plaintiff.” Appellant (P.W.1) is the only witness to say that in 1977 the normal price of the house would have been Taka 30 lakh. He could not substantiate his claim by evidence of any other witness or by producing any document. No registered sale-deeds of the relevant time showing price of similarly situated house were produced. Reliance has been placed by Mr. Mahbubuddin Ahmed on the deposition of P.W.1, the plaintiff, who purchased a house just near the suit house in 1980 at a consideration of Taka 16 lakh. This house does not stand on the Mirpur road like the house in suit but stands a little inside of kalabagan, was rising steadily since 1973, the price prevailing in 1980 would be certainly higher than that prevailing in 1977 Again, mere inadequacy of price will not bring a case within the ambit of this sub-section. To attract this sub-section, an ‘inadequacy’ price must be an evidence of fraud or of undue advantage taken by the plaintiff. An allegation of fraud was, of course, may be the appellant in his defence, but it was rejected by the Courts below as totally baseless.”
 
In the case of 7 DLR it is held that “Where the suit is brought within 3 years of the contract, the Court is competent to award a decree for specific performance of the contract directing the legal representatives of the original vendor to execute a kabala in accordance with the terms of the original kabala and have the same registered.”  
 
These decisions decided the question of law unnecessarily traveled by the learned Judge refusing to grant specific performance of a contract on the ground that provisions of Registration Act having not exhausted the suit is dismissed.
 
Let us proceed our judgment.
 
Specific Relief Act gives the court power to allow certain kind of special relief. Section 12 of the Specific Relief Act in Sub section a, b, c, and d empower the court to enforced specific performance of a court. Section 22 give absolute discretion to grant specific performance of a contract, but the discretion is judicial discretion not whimsical or extraneous or unauthentic or perverse or capricious Law gives Jurisdiction to court to refuse specific performance of a contract, if, in the case in our hand the defendant’s plea cover the 3 categories of cases in which law gives jurisdiction to court to refuse decree for specific performance of contract. (i) if the enforce of contract give unfair advantage over defendant, (ii) if the defendant did not forces  hardship if the contract be enforced in iii) where the plaintiff has done substantial acts or suffer losses in consequent of contract capable of specific performance of contract.
 
But, the case of defendant does not attract any of the 3 categories in which court may refuse specific performance. 
 
The learned trial Judge found the contract has been conducted as the learned Judge found its execution has been done, consideration money has been paid, no fraud has been committed and plaintiff proved his case, only registration of the Kabala requires to be done which on the findings of the learned Judge ought to be ordered which she did not on the reason that required formalities under Registration Act has not been exhausted by the plaintiff which the learned Judge done on misunderstanding of  law, Section 32 of Registration Act direct the executants (defendant) to present the document for registration, Section 72 for filing appeal before the Registrar against an order passed by the sub-Registrar refusing to register the deed, Section 73 relating application to Registrar where Sub-Registrar refused to register the deed on ground of denial of execution and Section 77 for filing suit against the order of refusal by Registrar. We do not understand how these sections of Registration Act attracts on the facts of the given the case. Moreover, it is not the case of defendant Bank.  From an over all consideration of the facts of the instant case we have seen plaintiff successfully make out a case of actual performance of a contract and it has all the essential of a contract valid and binding in law in order to be enforceable in law.
 
On an over all consideration of the entire matter, we find merit in the appeal.
 
In the result, the appeal is allowed without any order as to cost.
 
The judgment and decree dated 11.7.2011 passed by the learned Joint Directed Judge, 1st Court, Gazipur dismissing the Title Suit No. 195 of 2010 is set aside. Title Suit No. 43 of 2007 renumbered as Title Suit No. 195 of 2007 is decreed. Defendant Bank is directed to present the executed deed before the Sub-Registrar Gazipur and delivered possession of the suit land within 30 days from the date of receive of this judgment by the learned Judge, failing which decree shall be executed as per law.
 
Send down the lower court records.
 
Communicate this order at once.
 
Ed.