Chairman, RAJUK Vs. Abdul Matin Crore, 59 DLR (2007) 118

Case No: First Appeal No. 155 of 1999

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mr. T. H. Khan,Mr. Abdur Razzaq,,

Citation: 59 DLR (2007) 118

Case Year: 2007

Appellant: Chairman, RAJUK

Respondent: Abdul Matin Crore

Subject: Declaration of Title, Doctrin of Estoppel, Law of Contract, Property Law,

Delivery Date: 2006-5-25

Chairman, RAJUK Vs. Abdul Matin Crore, 59 DLR (2007) 118
 
Supreme Court
High Court Division
(Civil Appellate Jurisdiction)
 
Present:
Siddiqur Rahman Miah, J.
SM Ziaul Karim, J.
 
Chairman, RAJUK ….........Appellant
Vs.
Abdul Matin Crore ..........Respondent
 
Judgment
May 25, 2006.
 
Transfer of Property Act (IV of 1882)
Section 107
As the lease agreement was a bilateral agreement between the plaintiff and defendant, both parties are bound by the terms of the agreement. One party cannot unilaterally alter the terms of the contract.
 
Town Improvement Act (XIII of 1953)
Section 169
There is no evidence to show that before institution of the suit the plaintiff served any notice to the defendant as required under section 169 of the Act XIII of 1953. The plaint does not contain a statement that such notice was delivered.
 
Evidence Act (I of 1872)
Section 115
Bar of estoppels— The plaintiff gave an undertaking Exhibit “Chha” to defendant to the effect that by 31-12-1993 he will certainly pay the rest outstanding installments of premium with interest— His subsequent denial in this regard is barred by the doctrine of estoppels.
 
Specific Relief Act (I of 1877)
Section 42
A suit for declaration in respect of rights arising out of a contract which would affect only the pecuniary relationship between the parties to the contract was held to be not maintainable.
 
Cases Referred To-
Moslem Ahamed Sarker (Md) vs. Abdul Khaleque and others, 50 DLR 616; Safi Ahamed Chowdhury vs. Pubali Bank, 54 DLR 310. Syed Noor Md. Shah vs. Fakir Mohammad, PLD 1976 (Karachi 14).
 
Lawyers involved:
TH Khan. Senior Advocate with Md. Mosharraf Hossain Sarder and Md. Mainuddin, Advocates-for the Appellant.
Abdur Razzaq, Senior Advocate with Mohammad Hossain, Advocate—For the Respondent.
 
First Appeal No. 155 of 1999.
 
JUDGMENT
 
SM Ziaul Karim J.
 
This appeal at the instance of defendant-appellant, is directed against the judg­ment and decree dated 24-11-1998 passed by Mr. Md. Ali Haider, Subordinate Judge, First Court, Dhaka, in Title Suit No. 294 of 1996 decreeing the suit.
 
2. Short facts leading to this appeal are, that on 26-11-1996 the respondent as plaintiff filed a suit being Title Suit No. 294 of 1996 in the Court of the then Subordinate Judge, First Court, Dhaka on the following reliefs:
 
(ক) বাদীপক্ষ ইতিমধ্যে পরিশোধিত প্রিমিয়ামের বিনিময়ে নালিশী সম্পত্তির ষোল আনা মালিকানা অর্জন করিয়াছে মর্মে ঘোষণার ডিক্রী এবং বিবাদীপক্ষ বাদী পক্ষের নিকট নালিশী সম্পত্তির বক্রী ২য় এবং ৩য় কিস্তির প্রিমিয়ামের টাকা বা উহার কোন অংশ দাবী করিবার জন্য আইন্যুগ ভাবে অধিকার নহেন মর্মে ঘোষণার ডিক্রী;
(খ) মোকদ্দমার স ম্পূর্ণ খরচ বাদীপক্ষ কে বিবাদীপক্ষ কর্তর্ৃক প্রদানের জন্য হুকুম দানে মর্জ্জি করা হোক;
(গ) লীজ দলিলে উল্লেখিত শেষ দুই কিস্তির টাকা ১৩% হার সুদ সহ মওকুফ করার প্রয়োজনীয় হুকুম দানে করিয়া উহা ছাড়াই বাদীপক্ষের লীজ দলিলের ষোল আনা স্বত্ব ঘোষণা করা হোক ।
(ঘ) ইতিমধ্যে বিবাদীপক্ষ যাহাতে তফসিল বর্ণিত প্লটটিতে কোন প্রকার দায় দাবী বা ক্লোকী পরোয়ানা বা লীজ দলিলটি বাতিল না করিতে পারে, সেই মর্মে প্রয়োজনীয় আদেশ দানে মজ্জি করা হোক ।
(ঙ) এবং অন্যান্য প্রতিকার যাহা বাদীপক্ষ আইনত: হুুজুর আদালত হইতে পাইতে পারে তাহার আদেশ দানে মজ্জি করা হোক ।
 
3. The plaintiff's case, in short, is that on 18-1-1990 plaintiff purchased Plot No. 12, RAJUK Biponon Commercial Area of Mouja Karwan Bazar, Police Station Ramna, District Dhaka measuring an area of 6 katha 12 chhatak as described in the sche­dule of the plaint by auction, at a price of Taka 14,30,000 per katha, total amounting to Taka 96,52,000 as the highest bidder. Thereafter, defen­dant vide its Office Letter dated 23-1-1990 issued letter of allotment in favour of the plaintiff. The defendant induced the bidder to participate in auction showing incorrect nature of land in the auction notice published in the newspaper. After registration of lease agreement dated 2-12-1990 and taking possession, the plaintiff came to learn from the report on soil test dated December, 1990 that there is a ditch at a depth of minimum 40 feet filled up with garbage in the said plot. The plaintiff had to expend more than Taka 80,00,000 for foundation and piling. Since 1991, the plaintiff on many occa­sions approached to defendant to waive second and third instalments with interest for 62,10,217 but with no effect. Finding no other alternative, on 23­4-1994 the plaintiff served legal notice to defendant to waive second and third instalments with interest and to remove unauthorised occupants around the schedule plot; but defendant did not take any step to that effect. Further case of the plaintiff was that the defendant by suppressing the material defect and nature of plot committed fraud upon the plaintiff. The defendant after executing lease agreement in favour of plaintiff received Taka 48,26,250 as first premium, rest three instalments were scheduled to be paid on 23-2-1991 for Taka 23,80,950, on 23-2­1992 for Taka 21,23,550 and on 23-2-1993 for Taka 18,66,150 out of which second instalment of Taka 23,80,950 was paid by the plaintiff. As the plaintiff incurred a loss of Taka 80,00,000 expended for foundation and piling, so he repeatedly approached the defendant to waive the rest instalments but with no effect. Hence the suit.
 
4. The defendant contested the suit by filing written statement denying all material allegations made in the plaint. Its case, in short, was that the plaintiff knowing full well, being satisfied and after proper survey, participated in the auction bid along with other bidders. The plaintiff being highest bidder entered into the lease agreement on 2-12­1990 with the defendant and paid first premium, so, as per terms and conditions of the lease agreement, the plaintiff is bound to pay outstanding arrear instal­ments with interest. Further case of the defendant was, that plaintiff expended Taka 80,00,000 for foundation and piling for the purpose of highrise eighteen-storied building, which was absolutely a personal business of the plaintiff. There is no nexus between the defendant and such expenditure. Subsequently, on the prayer of plaintiff dated 28-12­1992, the defendant by its office Memo No. RAJUK /Estate/1320 dated 10-6-1993 extended the period of payment of third and fourth installments upto 31­12-1993. On 14-6-1993 the plaintiff made an undertaking in favour of defendant for payment of rest installments within 31-12-1993. According to terms of lease agreement, there is no scope to waive the premium with interest. The suit having no merit, is liable to be dismissed.
 
5. On the pleading following issues were settled:
 
a) Whether the suit was maintainable in the present form.
b) Whether there was any cause of action to institute the suit.
c) Whether the plaintiff was in possession in the suit land.
d) Whether the plaintiff was entitled to get a decree as prayed for.
e) To what relief, if any, the plaintiff was entitled to.
 
6. In course of trial, the plaintiff examined two witnesses, of whom PW 1 Abdul Matin Crore proved the letter dated 28-11-1992 regarding soil test report, legal notice dated 23-4-1994, letters dated 5-4-1995 and 4-6-1996 issued by plaintiff to defendant, Legal notice dated 18-7-1996, lease agreement dated 2-12-1990 as Exhibits 1, 1 (ka), 1(kha), 1(ga), 2 and 3 respectively. PW 2 AR Faruk proved soil test report as Exhibit 4.
 
7. The defendant examined one witness i.e. DW 1 Abu Bakar Siddique, Assistant Director Estate, who on cross-examination proved auction notice published in the "Dainik Janakantha" dated 25-11-1996 as Exhibit 5. He also proved auction notice published in "Bangladesh Observer" dated 6­1-1990 and in the "Dainik Bangla" dated 7-1-1990, list of the bidders, allotment letter dated 23-1-1990, schedule of payment dated 27-1-1990, receipt of payment of second installment, letter for payment of third installment, letter for rent dated 10-6-1993, letter dated 1-7-1991 for payment of second install­ment, letter dated 20-1-1996 for payment of arrear installments within 29-2-1996, letter dated 11-11­-1993 for payment of arrear installments within 31­-12-1993, letter dated 10-6-1993 for payment of third and fourth installments i.e. period extended upto 31-12-1993, letter dated 28-12-1992 by plain­tiff to defendant for extension of time for payment, undertaking dated 14-6-1993 by the plaintiff for payment of arrear installments within 31-12-1993 as Exhibits Ka, Ka(1), Kha, Ga, Ga(1), Gha, Uma, Uma(1) Uma (5), Cha and Chha respectively.
 
8. By impugned decree, the learned Sub-ordi­nate Judge, First Court decreed the suit. Hence the appeal.
 
9. Mr. TH Khan, Senior Advocate appearing with Mr. Md. Mosharraf Hossain Sarder and Md. Mainuddin, learned Advocates, supports the appeal and submits that the plaintiff knowing full well about the nature of land, after proper survey and being satisfied participated in the auction dated 18­1-1990 and being highest bidder purchased the schedule plot under auction. Thereafter, a lease agreement was executed between both the parties and the same was subsequently registered. He added that offer and acceptance as well as terms of the lease agreement was unconditional. Section 7 of the Contract Act provides that acceptance must be absolute and unqualified. The plaintiff accepted the schedule of payment and undertook to pay outstanding within 31-12-1993 (Exhibit Chha). He submits that auction was held on 18-1-1990 in pursuance of auction notice published in the Daily Observer on 6-1-1990 (Exhibit Ka) and in the Dainik Bangla on 7-1-1990 (Exhibit Ka(1). After executing registered lease agreement and taking possession, the plaintiff found a ditch at a depth 40' filled with garbage is not believable, rather it is an absurd proposition. Before purchase the plaintiff should be aware of it (CAVEAT EMTOR). He added that one party to a contract cannot unilaterally alter the terms of contract in view of the provision laid down in section 62 of the Contract Act. He refers clause 26 of the lease agreement (Exhibit 3) wherein it has been laid down that in case of default in payment of premium after registration as per Schedule I Clause a, b, c, d & e, the lessor will have the right to terminate the lease without reference to the Court. He submits that the reliefs sought were absolutely contradictory with that of the terms of decree passed by the trial Court. Mr. Khan assailed the impugned judgment and decree on the ground that the trial Court wrongly applied section 55 of Transfer of Property Act rather right of lessor and lessee has been prescribed in section 108 of the Transfer of Property Act, but in the case of open bid said provision is not at all applicable. He adds that the plaintiff stated in the plaint that he had a loss of Taka 80,00,000 for foundation and piling but he, without filing suit for compensation misconceively instituted the instant suit. He submits that the trial Court failed to consider Exhibit 'CHHA' i.e. the plaintiffs undertaking to pay the rest two installments with interest, which was the specific admission of the plaintiff. He adds that the suit itself is not maintainable. In support of his conten­tion he referred the case of Safi Ahamed Chowdhury vs. Pubali Bank reported in 54 DLR 310 wherein it is held:
 
“A declaration with regard to the contractual or financial obligation involved or transaction between the parties cannot come within the ambit of section 42 of the Specific Relief Act.”
 
10. Moreover, no notice as required under section 169 of the Town Improvement Act, 1953 was served to defendant before institution of the suit. Mr. Khan lastly submits that the trial Court failed to weigh and sift the evidence on record as required by law and evidently fell in an error in coming to his ultimate decision occasioning failure of justice.
 
11. Mr. Abdur Razzaq, Senior Advocate appearing with Mr. Mohammad Hossain, the learned Advocate for the respondent, opposes the appeal and submits that in view of provisions laid down in section 42 of The Specific Relief Act the suit is maintainable. He added that as per provision laid down in section 108(A) of the Transfer of Property Act the defendant was bound to disclose the material defect of the suit plot as the same was the right of lessee, failing which defendant shall be obliged to compensate the loss incurred by the plaintiff. He has drawn out attention to Exhibit "Ka" and Ka(1) i.e. the auction notice published in the daily newspapers, wherein nature of plot was noted as commercial cum residential, but the same was subsequently found absent. He adds that after taking possession the plaintiff found a ditch having 40' depth filled with garbage and after obtaining report of soil test (Exhibit 4), the plaintiff came to know that 128 piling will be required for foundation of his high-rise building, consequently the plaintiff incurred a loss of Taka 80,00,000 for foundation and piling. He submits that the plaintiff repeatedly ap­proached the defendant since 1991 to adjust for the same but with no effect. He lastly submits that the trial Court after considering the materials on record rightly decreed the suit which calls for no inter­ference by this Court.
 
12. In order to appreciate the submissions advanced by the learned Counsels for both sides, let us now weigh and sift the evidence on record adduced by both parties as well as other materials on record.
 
13. PW 1 Abdul Matin Crore as attorney of Abdul Mosair Crore deposed that on 18-1-1990 he participated in the bid in pursuance of the auction notice published in the daily newspapers and he became the highest bidder at a consideration of Taka 96,52,000 and he paid Taka 48,26,250 as a first installment, subsequently he paid Taka 23,80,950 as second installment. He added that the Schedule plot was not as like as Commercial plot. After taking possession he found some anomaly in the plot which is usually found absent in the commercial plot and he approached the defendant to rectify such anomaly but with no effect. He repeatedly appro­ached the defendant for adjustment of instalments, inasmuch as he incurred a loss of Taka 80,00,000 which was expended for piling. He denied that in the auction notice the suit plot was not described as bhiti land and there was no ditch in the suit plot. He denied that he compelled to give undertaking for payment of outstanding installments within 31-12­1993. In cross-examination he denied the sugges­tion that as per provision laid down in section 169 of The Town Improvement Act he did not serve any notice upon them. They took loan for the purpose of construction in the said plot. He added that no paper was submitted as to loss of Taka 80,00,000 expended for the purpose of foundation and piling. He denied the suggestion that the schedule plot was not filled with garbage and being satisfied he purchased the suit plot by auction .
 
14. PW 2 Engineer AR Faruq deposed that he tested the soil and opined that the site is located in a depression which was filled with indigenous materials and he advised to remove six metres soil from the suit plot for any permanent structures and the same must be filled up by 90% compact seal or RCC piling. He proved the soil test report as Exhibit 4. In cross-examination, he denied the sug­gestion that soil test report is not correct and at the instance of plaintiff he prepared incorrect soil test report and that he is deposing falsely.
 
15. DW 1 Md Abu Bakar Siddique, Assistant Director Estate RAJUK, deposed that as per pro­vision laid down in section 169 of The Town Impro­vement Act, 1953 no notice was served before institution of suit. He added that on 6-1-1990 and 7­1-1990 notice for auction of the Schedule plot was published. He proved the same as Exhibit Ka series. In those notices, suit plot was not described as "gold mine" or bhiti plot. The plaintiff as highest bidder purchased the schedule plot at a consideration of Taka 96,52,000. On 24-1-1990 temporary allotment letter was issued. He paid second installment but rest two installments were not paid. On 21-1-1996 the defendant intimated the plaintiff that if he failed to pay the rest installments within the stipulated period lease agreement will be cancelled. He denied the suggestion that by misrepresentation the plot was alloted to the plaintiff and RAJUK is respon­sible for the piling cost for Taka 80,00,000. In cross-examination he stated that as plaintiff did not serve notice under the Transfer of Property Act, so they did not reply. He admitted that around the Schedule plot there is a running canal and he had no knowledge whether the same was filled up by garbage. He denied the suggestion that for such cause RAJUK, herein defendant, is not entitled to get outstanding installments.
 
16. These are all of the material evidence adduced by both parties.
 
17. We have gone through the plaint, written statement, depositions of the witnesses, impugned judgment and decree, all Exhibits submitted by both sides, and have given our anxious considerations to the submissions advanced by the learned Counsels of both sides.
 
18. Admittedly, the plaintiff being highest bidder purchased the suit plot by auction dated 18­1-1990 at a consideration of Taka 96,52,000. Conse­quently, he paid initial installment for Taka 48,26,250 and second installment for Taka 23,80,950, rest Taka 21,23,550 as third installment and Taka 18,66,150 as fourth installment were scheduled to be paid on or before 23-2-1992 and 23-2-1993 respectively, but the same were not paid by the plaintiff. According to plaintiff, after taking possession in the suit plot, he found a ditch having 40' depth filled up by garbage, and for the construction of his 18-storied building, he had to expend an excess amount of Taka 80,00,000 for foundation and piling. The defendant disowned such plea.
 
19. Now, the question that calls for our consi­deration is, whether the learned Subordinate Judge, First Court, Dhaka committed any error of law in his judgment and decree dated 24-11-1998, occasioning failure of justice.
 
20. From the evidence on record we find that plaintiff purchased the suit plot by auction dated 18­1-1990 at a consideration of Taka 96,52,000. A lease agreement (Exhibit 3) was signed between the plaintiff and the defendant and the same was regis­tered. Schedule-II of the lease agreement shows that the plaintiff paid Taka 48,26,250 as first install­ment of premium, second installment of premium for Taka 23,80,950, third installment for Taka 21,23,550, and fourth installment for Taka 18,66,150 were scheduled to be paid on or before 23-2-1991, 23-2-1992 and 23-2-1993 respectful. Subsequently, plaintiff paid second installment, third and fourth installments of premium remamed unpaid. Clause 26 of the lease agreement (Exhibit 3) provides:
 
"In case of default in payment of premium after registration as per schedule Clauses (a), (b), (c), (d) and (e), the lessor will have the right to terminate the lease without reference to the Courts and in the event of such termination, the lessor will have the right to take back the possession of the plot on giving 30 days' notice to the lessee. The lessee shall be bound to remove all his movable and immovable properties within the said period failing which the ownership of such movable and immovable properties will vest in the lessor. Provided further, that the premium already paid shall stand forfeited to the lessor and the premium outstanding till the termination of the lease shall be recoverable from the lessee under the PDR Act."
 
21.Similarly, Clause 32 of the lease agreement (Exhibit 3) provides:
 
"If at any time any dispute, doubt or question shall arise between lessor and the lessee touching the construction, meaning or effect of this deed or any clause thereof or their respective rights and liabilities hereunder, the same shall be referred to the arbitration of the Chairman of the DIT whose decision shall be final and binding on the parties."
 
22. As the lease agreement was a bilateral agreement between the plaintiff and defendant, so both parties are bound by the terms of the lease agreement. One party to a contract cannot unilaterally alter the terms of contract. In this regard, reliance can be placed in the case of Syed Noor Md. Shah vs. Fakir Mohammad reported in PLD 1976 (Karachi 14).
 
23. Moreover, there is no evidence to show that before institution of the suit the plaintiff served any notice to the defendant as required under section 169 of the Town Improvement Act (Act XIII 1953). The plaint does not contain a statement Bat such notice has been so delivered. For the convenience of understanding section 169 of the said Act it reads as hereunder:
169. Notice of suit against the Kartripakkha, etc.:
 
“No suit shall be instituted against the Kar­tripakkha or any member, or any employee of the Kartripakkha, or any person acting under the direction of the Kartripakkha or of the Chairman or of any employee of the Kartri­pakkha, in respect of any act purporting to be done under this Act or any rule or regulation made hereunder, until the expiration of one month next after written notice has been delivered or left at the Kartripakkha's office or the place of abode of such employee or person, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims; and the plaint must contain a statement that such notice has been so delivered or left.”
 
24. In view of the aforesaid provisions of law, we hold that the suit itself was barred by law.
 
25. Evidence on record shows that the plaintiff participated in the auction bid on 18-1-1990 in pursuance of the auction notice dated 6-1-1990 and 7-1-1990 (Exhibit Ka and Ka-1 respectively) published in daily newspapers; between the span of time the plaintiff had an ample opportunity to survey or verify in respect of any material defect in the suit plot. Purchaser must be aware before purchase (CAVEAT EMTOR). So, it is the legitimate presumption that the plaintiff being fully aware of the nature of suit plot, being satisfied and after survey participated in the bid and purchased the suit plot in auction. We, therefore, hold that the plea taken regarding material defect in the suit plot after registration of lease agreement and taking possession has no leg to stand. The same appears to us as frivolous and a device not to pay the rest installments of premium.
 
26. On close analysis of the evidence we find that there is absolutely no evidence that there was any material defect in the suit plot as alleged by the plaintiff.
 
27. We also find that the plaintiff gave an undertaking on 14-6-1993 (Exhibit "Chha") to defendant to the effect that by 31-12-1993 he will certainly pay the rest outstanding installments of premium with interest, but his subsequent denial is barred under doctrine of estoppel as laid down in section 115 of the Evidence Act.
 
28. In the case of Moslem Ahamed Sarker (Md) vs. Abdul Khaleque and others reported in 50 DLR 616, it is held—
 
"Before a party could be barred by the principle of estoppel, waiver and acquiescence it must be established that opposite party acted bona fide on the clear, definite and unambi­guous representation made by his adversary and the opposite party has altered position in pursuance thereof."
 
It is in the evidence that the defendant acted bona fide in all respects.
 
29. We further find that a suit for declaration in respect of rights arising out of a contract which would affect only the pecuniary relationship between the parties to the contract was held to be not maintainable.
 
30. Having regard to the facts, we hold that a declaration with regard to the contractual or financial obligation involved or transacted between the parties cannot come within the ambit of section 42 of the Specific Relief Act. So, the principle enunciated in the case of Safi Ahamed Chowdhury vs. Pubali Bank reported in 54 DLR 310 as referred by the learned Counsel for the appellant, is applicable in this case. We further hold, the learned Subordinate Judge discussed some irrelevant facts which were not at all the matter in dispute between the parties and erroneously decreed the suit, causing failure of justice.
 
31. The facts and the legal plea taken by the learned Counsel for the appellant prevail and have a good deal of force, but we failed to discover any merit in the submissions advanced by the learned Counsel for the respondent.
 
32. In the facts and circumstances of the case and foregoing narrative, we are led to the conclusion that the impugned judgment and decree dated 24­11-1998 suffers from illegality and impropriety occasioning failure of justice. Thus the appeal having merit succeeds. The impugned judgment and decree calls for interference by this Court.
 
33. We hold that the defendant (RAJUK) is entitled to recover entire outstanding instalments of premium with interest from the plaintiff in accordance with law.
 
34. In the result, the appeal is allowed with cost. The impugned judgment and decree dated 24­11-1998 passed by the learned Subordinate Judge, First Court, Dhaka in Title Suit No. 294 of 1996 is hereby set aside. The suit stands dismissed.
 
Send down the lower Court's records at once with a copy of the judgment for information and necessary action.
 
Ed.