Md. Afazuddin Vs. Md. Ataur Rahman & another, IV ADC (AD) 552

Case No: Civil Appeal No. 173 of 2003

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Mahmudul Islam,Mr. Mohammadullah,,

Citation: IV ADC (2007) 552

Case Year: 2007

Appellant: Md. Afazuddin

Respondent: Md. Ataur Rahman & another

Subject: Specific Performance, Law of Contract,

Delivery Date: 2007-2-7

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
MM. Ruhul Amin J
Md. Tafazzul Islam J
 
Md. Afazuddin
……………..Appellant
Vs.
Md. Ataur Rahman & another
……………Respondent
 
Judgment
February 7, 2007
 
Considering the facts and circumstances of the case, and all aspect of the matter, we are of the view that the amount of solatium awarded by the High Court Division is not too inadequate.  Thus it appears that the plaintiff was always willing and ready to pay the balance consideration money and there is no latches on his part but he could not tender the balance consideration money earlier as upto 1992 income tax clearance certificate was required for the purpose of registration sale deed.
 
Lawyers Involved:
Mohammadullah, Advocate, in­structed by Nurul Islam, Advocate-on-Record- For the Appellant.
Mahmudul Islam, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record- For the Respondents.
 
Civil Appeal No. 173 of 2003
 
JUDGMENT
 
M. M. Ruhul Amin J.
 
This appeal by leave is directed against the judgment and order dated 28.01.2002 passed by a Division Bench of the High Court Division in Civil Revision No. 3537 of 1999 heard analogously with Civil Revision No.3536 of 1999 dispos­ing the same with modification.
 
2. The respondent No.1 as plaintiff insti­tuted Title Suit No. 562 of 1985 in the 1st Court of Subordinate Judge (now Joint District Judge), Dhaka against the present appellant and others for Specific Performance of Con­tract. The suit was subsequently transferred to the 3rd Court of Subordinate Judge (now Joint District Judge), Dhaka and was renumbered as Title Suit No. 3 of 1987.
 
3. The case of the plaintiff, in short, is that  the defendant No. 1 entered into an agreement with him to sell the suit property at a consideration of Tk. 1,20,000/- and on re­ceipt of Tk.5,001/- from the plaintiff as ear­nest money the defendant No.1 executed a bainapatra in favour of the plaintiff on 19.02.1985. There was stipulation that defen­dant No.1 after procuring necessary papers would inform the plaintiff and thereafter, on receipt of the balance consideration money within a month from the date of bainapatra, the defendant No.1 would execute and regis­ter the necessary sale deed in favour of the plaintiff. On 02.03.1985 the plaintiff enquired from the defendant No.1 if he had obtained necessary papers for completion of the trans­action. The defendant No.1 replied that he was trying to procure the same. The plaintiff again enquired from the defendant No.1 on 10.08.1985 but the defendant No.1 was found to be indifferent. The plaintiff continued to request the defendant No. 1 for procuring nec­essary papers but the defendant No. 1 did not pay any heed to it. On receipt of the summons of Title Suit No. 737 of 1985 of the 2nd Court of Munsif (now Assistant Judge), Dhaka, the plaintiff learnt that the defendant No.1 as plaintiff filed the suit for recovery of khas possession of 1/3rd katha of land of Plot No.219 of Khatian No.6, of Mouza Ibrahimpur, P.S. Dhaka Cantonment, Dhaka against him and his wife as defendants. Inspite of repeated reminders the defendant No.1 did not execute the sale deed on receipt of balance considera­tion money although the plaintiff was always ready and willing to pay the balance consid­eration money to the defendant No.1. The plaintiff was, therefore, constrained to file the suit for specific performance of contract.
 
4. The defendant No.1 contested the suit by filing written statement stating that he was ready and willing to execute and register the kabala in favour of the plaintiff after obtain­ing the balance consideration money. The fur­ther case of the defendant No.1 is that as per terms of the bainapatra the plaintiff agreed to pay the balance consideration money within 1(one) month from the date of bainanama and get the sale deed executed and registered from the defendant No.1. Since the land was al­ready with plaintiff, so it was not written in the bainanama that possession would be given. The plaintiff, thereafter, proposed to the defendant to sell another 3/4th decimals of land of Plot No.219 but the defendant refused. The plaintiff forcibly encroached 3% decimals of land and started construction thereon. Ac­cordingly the defendant No.1 instituted Title Suit No.737 of 1985 in 2nd Court of Munsif (now Assistant Judge), Dhaka for recovery of khas possession. The said Title Suit No.737 of 1985 was transferred to the 3rd Court of Subordinate Judge (now Joint District Judge), Dhaka and renumbered as Title Suit No. 4 of 1987. Title Suit No.4 of 1987 and Title Suit No.3 of 1987 were heard analo­gously in the 3rd Court of Subordinate Judge (now Joint District Judge), Dhaka. Title Suit No.3 of 1987 was dismissed and Title Suit No.4 of 1987 decreed by judgment dated 23.11.1998. The defendant No.1 pre­ferred Title Appeal No. 74 of 1999 in the Court of District Judge, Dhaka. On transfer the appeal was heard and disposed of by the learned Additional District Judge, 7th Court, Dhaka along with Title Appeal No.75 of 1999 and both the appeals were dismissed. Being" aggrieved, the plaintiff preferred Civil Revi­sion Nos.3537 and 3536 of 1999 before the High Court Division. The rule issued in Civil Revision No.3537 of 1999 against the judg­ment and decree passed in Title Appeal No. 74 of 1999 affirming the judgment and decree passed in Title Suit No.3 of 1987 was dis­posed of with modification that the plaintiff, Md. Ataur Rahman of Title Suit No.3 of 1987 would deposit in the trial court to the credit of defendant No.1, Afazuddin a sum of Tk.1,50,000/- as soletium over and above Tk.1,15,000/- the balance consideration money within 3(three) months from the date of judgment and on receipt the amount both balance consideration money and soletium, the defendant No. 1 would execute and regis­ter the sale deed in favour of the plaintiff. It was further directed that if the plaintiff could not deposit the amount within time fixed by the court, the suit shall stand dismissed. The rule issued in Civil Revision No.3536 of 1999 was discharged.
 
5. Leave was granted to consider the submission that the amount of soletium of Tk. 1,50,000/- is very inadequate which is ap­parent on its face being clearly against the finding by the High Court Division to the ef­fect that the valuation of the suit land made as on 19.02.1985 after 17 years of the contract has gone up by many folds. The price of the suit land has gone up by more than ten times and at the present market value of the suit land will be above Tk.12 lac. The High Court Division has failed to consider that the afore­said soletium is not commensurate with the present market value of the suit land.
 
6. We have heard Mr. Mohammadullah, the learned Advocate for the appellant and Mr.Mahmudul Islam, the learned Counsel for the respondent and perused the judgment of the High Court Division and other connected papers.
 
7. It transpires from the record that the bainapatra in question was executed on 19.02.1985 and Title Suit No. 562 of 1985 subsequently renumbered as Title Suit No. 3 of 1987 for specific performance of contract was filed in the same year (1985). After pass­ing of the decree by the trial court the plaintiff deposited the balance consideration money within time as directed by the court. After passing of the judgment of the High Court Division in civil revision the plaintiff depos­ited the soletium amount within time fixed in the judgment. It may be mentioned that the appeal, Civil Revision Case and the Civil Pe­tition for leave to appeal were preferred by the defendant No. 1 appellant.
 
8. Thus it appears that the plaintiff was always willing and ready to pay the balance consideration money and there is no latches on his part but he could not tender the balance consideration money earlier as up to 1992 in­come tax clearance certificate was required for the purpose of registration of sale deed. Since the defendant No. 1 did not obtain the same and on enquiry on two occasions as mentioned in the plaint, the defendant No.1 did not give any satisfactory reply regarding procurement of income tax clearance certifi­cate, the plaintiff did not tender the balance consideration money and get the sale deed executed and registered from the defendant No.1 for want of necessary income tax clear­ance certificate to be obtained by the defen­dant No.1. Thus it appears that there was a rather latch on the part of the defendant No.1in the matter.
 
9. Considering the facts and circum­stances of the case, and all aspect of the mat­ter, we are of the view that the amount of soletium awarded by the High Court Division is not too inadequate. However, we propose to allow a further sum of Tk. 50,000/- (fifty thou­sand) as soletium to defendant No.1
 
10. The appeal is, accordingly, dismissed with the modification that the respondent would deposit Tk.50,000/- (fifty thousand) as further soletium in favour of the appellant within 3(three) months from the date of re­ceipt of the copy of the judgment.
 
Ed.