Case No: Civil Petition For Leave To Appeal No. 530 of 2011
Judge: Md. Abdul Wahhab Miah,
Court: Appellate Division ,,
Advocate: Mr. Mahbubey Alam,Mr. Mahmudul Islam,,
Citation: 2 LNJ AD (2013) 142
Case Year: 2013
Appellant: Md. Atif Atiq and another
Respondent: Nurun Nahar Begum and others
Subject: Specific Performance, Doctrin of Estoppel,
Delivery Date: 2012-01-22
|Md. Muzammel Hossain. C.J.
Surendra Kumar Sinha, J.
Md. Abdul Wahab Miah, J.
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J.
Muhammad Imman Ali, J.
Md. Shamsul Huda, J.
Md. Atif Atiq and another, represented by their lawful attorney SK. Abdul Hye Bacchu.
. . . Petitioner.
Nurun Nahar Begum and others
. . . Respondents.
Evidence Act (I of 1872)
Since the land owner in clear terms undertook in the agreements executed between him and the developer to sign the tripartite agreement, he was estopped from taking such plea within the meaning of section 115 of the Evidence Act, because, he by signing the three agreements with the developer caused a belief in the mind of the plaintiff, a buyer that he would put his signature in the tripartite agreement as a matter of course. . . . (29)
Contract Act (IX of 1872)
Sections 2 and 10
From a combined reading of the clauses of section 2 of the Contract Act read with the paragraphs of the preambles and the terms of three agreements, it is clear that defendant No.3 entered into an agreement with defendant Nos.1 and 2 to sign the tripartite agreement without any reservation in case the developer forward sells its share of the flats of the project ‘Heritage’. The provisions of section 10 of the Contract Act also come in aid of the plaintiff. It appears that the land owner of his own accord agreed to sign the agreement to be executed between the developer and the intending buyers of the flats which fell in the share of the developer and hence the plea of the defendants 4 and 5 that their predecessor, defendant No.3 not being a signatory to the tripartite agreement the same cannot be enforced against them is not legally sustainable....(32)
Specific Relief Act (I of 1877)
Sections 12 and 27
Defendant Nos. 4 and 5 being the heirs of defendant No.3, specific performance of the contract, can very much be enforced against them within the meaning of section 27 of the Specific Relief Act. Therefore, the Court below rightly decreed the suit. It may be stated that breach of agreement to sell a flat to be constructed on the suit land cannot be adequately compensated by money as explained by the legislature in the explanation appended to the section and therefore, clauses (b) (c) and (d) to section 12 are also attracted in the instant case.….(34).
For Respondent No.l. : Mr. Mahmudul Islam, Senior Advocate instructed by Syed Mahbur Rahman, Advocate-on-Record.
For Respondent Nos.2-10 : None represented.
Civil Petition For Leave To Appeal No. 530 of 2011
This petition for leave to appeal has been filed by defendant Nos.4 and 5 against the judgment and decree dated the 8th day of June, 2010 passed by a Division Bench of the High Court Division in First Appeal No. 328 of 2007 dismissing the same.
Respondent No.l as plaintiff filed Title Suit No.37 of 2006 in the Court of Joint District Judge, 3rd Court, Dhaka for specific performance of contract impleading the present petitioners as defendant Nos. 4 and 5 and respondent Nos. 2, 3, 5-10 as defendant Nos. 1, 2 and 6-11. Brigadier General M. Aitqu-ur Rahman (since dead), father of the present petitioners was impleaded as defendant No. 3.
In the plaint, it was stated, inter alia, that the plaintiff entered into an agreement with defendant No. 2 to purchase a flat being No.2/A, Tulip DOHS, Street No.6/B (Banani) within Cantonment Police Station. The sale price of the above flat was fixed at TK. 30,00,000.00. A tripartite agreement was exec-uted accordingly. The plaintiff paid a sum of taka 8,00,000.00 (eight lac) to defendant No.2 in 6(six) installments from 01.05.2000 to 02.06.2001. The plaintiff found the flat small in size in comparison with her need. So, defendant No.2 proposed to sell flat No.4/B of the project, 'Primrose' at plot No. 11 of Street No.4 of DOHS, Banani at taka 30,00,000.00 (thirty lac). And then again a tripartite agreement was executed with defendant No. 1-company through defendant No.2 on 30.06.2001 and the money paid earlier was adjusted towards the value of the new apartment. The plaintiff made further payment of taka 8,00,000.00 (eight lac) in 8(eight) installments from 02.11.2001 to 30.12.2002 i.e. upto 30.12.2002, she paid in total taka 16,00,000.00 (sixteen lac). After the plaintiff had seen flat No.4/B, 'Primrose1, she also found it not suitable for her. Then defendant No.2 again proposed to sell flat No.4-B of the project 'Heritage' at plot No. 18, Road No.3, Banani, DOHS (hereinafter referred to as the suit land) at a consideration of taka 35,00,000.00. The plaintiff made further payment of taka 8,00,000.00 in 8(eight) installments from 09.03.2003 to 30.05.2004 towards the value of the said flat. The plaintiff paid taka 24,00,000.00 in total. Thereafter, on 19.08.2004, the plaintiff paid a sum of taka 1,00,000.00 (one lac) to defendant No.2 and entered into a tripartite agreement with the defendant-company for purchasing flat No.4/B (hereinafter referred to as the suit flat) of its project 'Heritage', DOHS, Banani to be constructed on the suit land. After the agreement had been handed over to the plaintiff, she found that the same was not signed by the owner of the suit land, Brigadier General Atiqur Rahman (deceased defendant No.3). When the matter had been enquired from defendant No.2, he told that Mr. Atiqur Rahman was abroad and he would be able to get the agreement signed by him after his return from abroad and she need not be worried over the matter and accordingly, on good faith, the plaintiff kept herself waiting. After some days when the plaintiff gave tagid to defendant No.2 to have the signature of Mr. Atiqur Rahman on the tripartite agreement, he told that since the owner of the suit land had agreement with them as developer, she would not face any difficulty even if there was delay in signing the agreement. However, the plaintiff continued to give tagid to defendant Nos. 1 and 2 for the signature of defendant No.3 on the tripartite agreement and every time defendant No.2 repeated that the owner of the suit land was outside the country and the moment he comes to Bangladesh, he will get the agreement signed by him on taking the balance money and would also register the kabala. In this way, the plaintiff had been kept waiting. In the meantime, more than 80% of the work of the project was completed. At that stage of the work, when again the plaintiff put pressure upon defendant No.2 for the signature of defendant No.3 on the tripartite agreement, he started talking inconsistently (আবোল তাবোল কথাবার্তা বলিতে থাকেন). She enquired into the matter and came to know that some problems cropped up between defendant No.3 and defendant Nos.l, 2, 6, 7 and 8 for which the work of the project was stopped and defendant No.2 also stopped taking money. On 01.11.2005, the plaintiff informed defendant Nos. 10 and 11, he Director of the Military Land and Cantonment Directorate and the Administrator, Military Estate, Central Circle, Dhaka Cantonment respectively about the fact of non-signing of the tripartite agreement by defendant No.3. Later on, the plaintiff came to know that defendant No.3 in order to deprive the plaintiff of the suit flat created some fraudulent documents in respect of the same in favour of his son and daughter, i.e. defendant Nos.4 and 5. In the meantime, the plaintiff could see that though the work of the project resumed, defendant Nos. l, 2, 6, 7 and 8 were not there and it was defendant No.9 who was completing the unfinished work of the project. The plaintiff further came to know that defendant No.3 drove defendant Nos. l, 2, 6, 7 and 8 from the project by force and did riot allow them to continue with the project and gave the charge to complete the unfinished work of the project to defendant No.9. That being the state of affairs, the plaintiff became frustrated and started looking frantically for defendant Nos. l, 2, 6, 7 and 8, but could not trace out their whereabouts. And then, on 05.02.2006, the plaintiff served a legal notice upon defendant No.2 and thus tried to inform him all facts in detail and also requested him to take necessary steps by 19.02.2006. Although the said period expired, defendant No.2 did not respond and hence the plaintiff filed the suit. In the meantime, defendant No.3 died and his heirs, defendant Nos.4 and 5 were substituted in his place.
The suit was contested by defendant Nos.l and 2, 4 and 5 and 10 and 11 by filing 3(three) separate sets of written statement.
The case of defendant Nos.l and 2 was that defendant No.3 was the owner of the suit land. Defendant No.l is the company and defendant No.2 is its Chairman. On 18.10.2001, defendant No.3 executed an agreement with defendant No. 1 to construct a multistoried building on the suit land. As per terms of the agreement, defendant No.3 and defendant No.l would be the 50/50 owners of the flats to be constructed on the suit land and also of the garage in the same ratio. At first, decision was taken to construct a 5(five) storied building. Subsequently, by an agreement dated 18.08.2002, the parties agreed to construct 7(seven) storied building instead of 5(five) storied, other terms of the agree-ment remained same. As per terms of the said agreement (18.08.2002), the defendants got the plan passed and after obtaining necessary permission started construction of the building by giving the 7th storey foundation and when construction of the 5th floor was about to be started, on the demand and pressure of defendant No.3, the defendants had to execute a supplementary deed of agreement on 16.08.2004. And as per terms of the said supplementary agreement out of 10 flats, defendant No.3 got flat Nos. l-A and 1-B in the 1st floor, flat Nos.5-A and 5-B in the 5th floor and flat No.2-B in the 2nd floor. The defendants got flat No.2-A in the second floor, flat Nos,3-A and 3-B in the 3rd floor and flat Nos.4-A and 4-B in the 4th floor. The defendants after completing 80% works of the project upto the 5th floor-were taking preparation for undertaking constru-ction of the 6th and the 7th floors. As per terms of the agreement, the defendants in order to sell flat Nos.2-A, 3-A, 3-B, 4-A and 4-B which fell in their share entered into agreement with the buyers, namely: Md. Mo-zammel Hossain, defendant No.9-Md, Saiful Islam Bhuiyan, Ishtiaque Ahmed. Abdullahil Rakib and the plaintiff respectively and received part payment from them as advance. The defendants entered into the agreement with the plaintiff for selling the suit flat at taka 35,00,000.00 and out of the consideration money received taka 25,00,000.00 on various dates. The defendants also received taka 35,00,000.00 from defendant No.9 out of the total price of taka 43,50,000.00 and taka 32,00,000.00 out of the total price of taka 39,50,000.00 from Abdullahil Baqui. In the meantime, defendant No.3 started creating various problems with the defendants on some illogical issues and at his instigation Abdullahil Rakib and defendant No.9 took attempt to take over possession of the flats illegally in respect of which agreements were entered into with them without paying the balance money to defendant No.l. Later on, when the defendants in order to finish the construction work of the flats demanded balance money from them, they became furious and started opposing them. And in the evening of 28.02.2005, said Abdullahil Baqui and defendant No.9 came to the house of defendant No.2 and forcibly boarded him into a car in a filmy style on the false assurance that they would pay the balance money and after driving the car for some time compelled defendant No.2 to sign on some blank stamps and cartridge papers and then dropped him from the car. On 01.03.2005, defendant No.2 lodged a General Diary with Ramna Police Station complaining the above incident which was registered as G. D. Entry No.70. Thereafter, defendant No.2 also filed a petition of complaint before the Chief Metropolitan Magistrate, Dhaka being Compl-aint Case No.584 of 2005. The petition of complaint was sent to the Police Station for investigation, but the police submitted final report against which the defendants filed naraji petition which had been also rejected; they filed a criminal revision before the Metrop-olitan Sessions Judge, Dhaka being Criminal Revision No.251 of 2006 which is still pending. In the meantime, at the instigation of defendant No.3, defendant No.9 and Mr. Abdullahil Rakib started threatening the defendants to take over possession of the flats under sale of contract to them by force without paying the balance contracted money; in the circumstances, the defendants finding no other way filed Title Suit No. 151 of 2005 in the Court of Assistant Judge, Second Court, Dhaka for permanent injunction against said Abdullahil Rakib, defendant No.9 and defen-dant No.3 impleading them as defendant Nos.l, 2 and 3 respectively; the suit is still pending and is contested by said Abullahil Rakib and defendant No.9. The defendants further asserted that the suit Hat was not sold to any one else except the plaintiff. The agreement between the defendants and defendant No.3 is still in existence. Abdullahil Rakib and defendant No.9 at the instigation of defendant No.3 are illegally obstructing the defendants from finishing the remaining works of the building and are not co-operating with them to hand over the suit flat to the plaintiff for which the defendants are not in a position to hand over the possession of the same. The defendants will have no objection if the plaintiff gets title and possession of the suit flat through Court.
Defendant Nos.4 and 5 in their written statement contended, inter alia, that defendant No.3 was the owner of the suit land measuring ".66 kathas. On 18.10.2001, defendant N.).l entered into an agreement with defendant No.3 for construction of an apartment building on the suit land: the agreement was signed by defendant No.2 on behalf of defendant No.l-company as its Chairman. According to the terms of the agreement, defendant No. 1-company was supposed to construct 10(ten) flats, each measuring an area of 2050 square feet having 10(ten) garages, one against each of the flats, after obtaining plan from Cantonment Board and hand over the possession thereof to the land owner and the flat owners within 24 (twenty four) months. Under the terms of the said agreement defendant No.l out of his 5(five) flats being Nos.2/A, 3/A, 3/B, 4/A and 4/B, sold 4(four) flats except the suit flat (flat No.4/B) and received taka l,36,03,000.00(one crore thirty six lac and three thousand) from the buyers. But, the suit flat remained unsold. Though defen-dant Nos.l and 2 received the said amount from the buyers, they failed to complete the construction work or failed to under-take the construction work satisfactorily or failed to do the construction work properly as per terms of the agreement and had abandoned the construction site; the inten-ding flat buyers of the defendant-company found out the Chairman of the company, defendant No.2 and when asked him about the completion of the construction of the project, he expressed his inability to comp-lete the construction work. In the circum-stances, defendant No.2 and the other buyers of the flats of the building assessed the costs to be incurred for completing the project at taka 80,00,000.00 which inclu-ded the remaining balance amount of the contracted amount of the buyers of the flats and the estimated value of the suit flat. The total amount, due from the four buyers of the flats, was taka 24,47,000.00 (twenty four lac and forty seven thousand) and the estimated sale value of the suit flat was assessed at taka 40,00,000.00 (forty lac) i.e. in total taka 64,47,000.00(sixty four lac and forty seven thousand), could be collected from the project. Defendant No.2 further told that the project could be completed by the said money by employing skilled, experienced and honest persons. On the above understanding, defendant No.2, out of his own volition, had sworn an affidavit and also executed an agreement on 15.02.2005. Thereafter, defendant No.3 in order to complete all works of the partly constructed building of the project appointed (a) Ishtiaque Ahmed of flat No.3/B, (b) Md. Saiful Islam Bhuiyan of flat No.3/A, (c) Abdullahil Rakib of flat No.4/A and (d) Mozammel Hossain of flat No.2/A as attorneys by executing a power of attorney on 16.05.2005 giving them powers to complete the remaining works of the project 'Heritage1 and to take various connections therein including the power of sale of the suit flat after making it ready for living and to collect money from the buyer. Thereafter, defendant No.3 and the buyers of the builder's company jointly completed the construction of the project 'Heritage apartment' including the suit flat and the suit flat was sold to one Nesarul Islam, son of late Shamsuddin Mollah on 12.09.2005. Possession of the suit flat was delivered to said Nesarul Islam and he has been in possession thereof peacefully with his family members. Flat Nos.3/A, 2/A, 4/A and 3/B are being possessed by Saiful Islam Bhuiyan (defendant No.9), Mozammel Hossain, Abdullahil Rakib and Ishtiaque Ahmed respectively. The other 5(five) flats being flat Nos.l/A, 1/B, 2/B, 5/A and 5/B were in possession of defendant No.3 who got those flats as the owner of the suit land as per terms of the agreement. The plaintiff neither entered into any contract with defendant No.3 nor with his attorney about the sale of the suit flat and she has no right, title and possession therein. Defendant No.3 died on 25.05.2006 leaving behind defendant Nos.4 and 5 and another daughter named Nilufer Atique and now they are in possession of the flats of defendant No.3 ™~ nlaintiff filed the suit at the ill advice and in collusion with defendant No.2 by creating false and fraudulent papers for illegal gain, so the plaintiffs suit was liable to be dismissed.
The Director and the Administrator of Military Estate, Dhaka Cantonment, defendant Nos.10 and 11 in their written statement stated, inter alia, that the suit land was allotted in the name of defendant No.3 as a lease for 99 years. The lease deed was executed on 26.04.1961. The defendants approved a plan for construction of a multistoried building on the said land. The owner of the land took permission from the Cantonment Board and defendant No.l started construction on the suit land as per agreement. On 20.02.2006, the plaintiff informed the Cantonment Board that she purchased the suit flat at taka 35,00,000.00 and there was a tripartite agreement between the plaintiff, defendant No.2 and defendant No.3. But, Bridg. General M. Atiqur Rahman, defendant No.3, did not put his signature on the deed of agreement. She requested the defendants to take steps so that the process of transfer of the suit flat to any one else could be not completed till disposal of his complaint.
The learned Joint District Judge framed four issues in the suit, the issues being:
- মামলাটি অত্রাকারে রক্ষণীয় কি না?
- (২) মামলাটি তামাদি বারিত কি না?
- বাদী ও ১-২ নং বিবাদীগণের মধ্যে নালিশী ফ্ল্যাট ক্রয়-বিক্রয়ের চুক্তি হইয়াছিল কি না এবং উহা ৪-৫ নং বিবাদী পক্ষেও উপর বাধ্যকর কি না?
- প্রার্থীত প্রতিকার পাইতে বাদী হকদার কি না?
Being aggrieved by and dissatisfied with the judgment and decree passed by the learned Joint District Judge, defendant Nos.4 and 5 preferred First Appeal No.328 of 2007 before the High Court Division. A Division Bench of the High Court Division hearing the. appeal dismissed the same; hence this petition for leave to appeal.
Mr. Mahbubey Alam, learned Counsel, appearing for the petitioners, has sub-mitted that as the developer without performing its part of obligation abandoned the project after misappropriating the money from the buyers, the contract executed between the developer and the land-owner had ceased to exist and therefore, there was nothing to compel the land owner to perform his part of obligation. He has further submitted that after taking over possession of the project site, the land owner collected money from different sources, such as: from other flat owners and by selling the suit flat to a third party and then got the unfinished work completed; third party to whom the suit flat was sold being a bonafide purchaser for value, was a necessary party in the suit, but he was not made a party. Therefore, the suit was not maintainable in law and the same was liable to be dismissed on that ground alone. He has lastly submitted that since the land owner did not sign the tripartite agreement and thus, there was no agreement between the plaintiff and the land owner, the plaintiff was not entitled to a decree for specific performance of contract against the petitioners being the heirs of defendant No.3, but the learned Judges failed to consider these factual and legal aspects of the case in its proper perspective and thus erred in law in concurring with the judgment and decree of the learned Joint District Judge and as such, the impugned judgment and decree calls for interference by this Division.
Mr. Mahmudul Islam, learned Counsel, entering caveat on behalf of the plaintiff-respondent, on the other hand, has contended that after the execution of the first agreement dated 18.10.2001 between the developer compa-ny and the land owner, defendant No.3, two other agreements were executed between them being dated 18.08.2002 and 16.08.2004, the last one having been styled as 'supplementary deed of agreement' and in the last deed the parties made an amicable partition of the flats to be constructed on the suit land; as per clause 11 of the supplementary deed of agreement the suit flat fell in the share of the developer who entered into an agreement with the plaintiff for selling the same on 19th August, 2004, that is, within 4 days of the execution of the 'supplementary agreement' and the plaintiff being a bonafide purchaser for value is entitled to a decree for specific performance of contract. He has lastly submitted that mere non-signing of the tripartite agreement by the land owner shall not, in any way, affect the said right of the plaintiff, the High Court Division rightly dismissed the appeal concurring with those of the learned Joint District Judge and as such, no interference is called for with the impugned judgment and decree and the leave petition be dismissed.
From the judgment and decree of the learned Joint District Judge, it appears that he decreed the suit on the finding, inter alia, that defendant Nos.4 and 5 in paragraph 21(Kha) and (Ga) of their written statement clearly admitted that 10(ten) flats to be constructed on the suit land would be equally owned by the developer and the land owner and the suit flat along with other flats fell in the share of defendant No.l; the defendants further stated that except the suit flat defendant No.l sold the four flats and thus ownership of defendant No.l-company in respect of the suit flat was admitted; exhibits-'Ka', 'Kha' and 'Ga', the documents filed by the defendants also proved the fact of ownership of the developer company of 5(five) flats; exhihit-'8' proved that defendant No.2 who is the Chairman of defendant No.l-developer-company entered into an agreement with the plaintiff for selling the suit flat i.e. flat No.4-B; defendant No.3 who died in the meantime, entered into a contract with defendant Nos.l and 2 and though defendant No.9 was not legally empowered, yet their non-cooperation and illegal behaviour (BQ1Z) with defendant No.2 in transferring the suit flat to the plaintiff demonstrated their weakness and in spite of the fact that defendant Nos.4 and 5 in their written statement admitted that the suit flat fell in the share of the developer (defendant No.l-company) by creating some illegal papers and by applying force in collusion with defendant No.9 resisted the legal right of the plaintiff in respect: of the suit flat.
The learned Joint District Judge disbelieved exhibit-'Q' the agreement dated 15.02.2005 allegedly executed by defendant No.2 on the ground that although the same was shown to have been executed amongst 5(five) persons, the same bore the signatures of four persons on its first and second pages of taka 100 and taka 50 stamps and the 3rd page being a cartridge paper was signed by each of the five persons and at the typed column 6th party (ষষ্ঠ পক্ষের ঘরে) none signed. The learned Joint District Judge did not rely on the power of attorney, exhibit-'P' on the ground that the same was typed on four stamps of taka five having a seal of Gulshan Sub-Registrar's Office and moreso, after the amendment brought in the Registration Act, 2004, the power of attorney and the agreement for sale were compulsorily registerable. In not putting reliance upon exhibits-'Q' and 'P', the learned Joint District Judge also considered the case of defendant Nos.l and 2 that defendant No. 9 and Abdullahil Baqui went to the house of defendant No. 2 on 28.02.2005 arid played a false trick on him that he would be paid the money and got him boarded in a car and after obtaining his signatures on some blank stamp paper and cartridge paper by force dropped him from the car and he lodged a G.D. Entry with Ramna Police Station vide exhibit-'Gha' complaining the said incident; the learned Joint District Judge concluded by saying that Ô....এবং, ইহার ধারাবাহিকতায় প্রদর্শনী-‘চ’ সৃজন করা হইয়াছিল। ফলে, প্রদর্শনী-‘চ’ আইনগত কারনেই আর গ্রহনযোগ্যতা থাকে না।Õ With the above findings, the learned Joinl District Judge disbelieved the case of defendant Nos.4 and 5 that defendant No. 2 voluntarily entered into an agreement with the other people including defendant No. 9, executed a power of attorney giving authority to them to undertake tie remaining construction work of the apartment of the project in question and also swore an affidavit to the said effect.
The learned Joint District Judge consid-ering the evidence adduced on behalf of defendant Nos.4 and 5 further held that the witnesses examined on their behalf stated in their deposition that the suit flat fell in the share of defendant No. 1 and the same was sold to the plaintiff. The learned Joint District Judge on consideration of sections 12(c) and 27 of the Specific Relief Act further held that even if the property under contract of sale is sold to a third party or remains in possession of the third party, the right, title and interest of the person with whom contract was first entered into, shall not, in any way, be affected and as such, the plaintiff was entitled to get the suit flat as per terms of the agreement. The learned Joint District Judge further found that the plaintiff is an old lady and she paid the entire consideration money.
From the judgment and decree of the High Court Division, it appears that the learned Judges of the High Court Division concurred with all findings of the trial Court as jotted down hereinbefore on consideration of the evidence on record, both oral and documentary. The learned Judges while concurring with the learned Joint District Judge as to the entitlement of the plaintiff to get decree for specific performance of contract considered clauses 8 and 9 of the agreement dated 18.10.2001 and came to the finding that:
"From the words employed in clause-9, it does not show that the right to choose of purchasers by defendant No. 2, depends subject to the condition of signing of defendant No. 3 on the tripartite agreement. In clause 9 of the agreement, it is only written 'the developer will have the right to choose purchaser and a tripartite agreement would be executed in which defendant No. 3, land owner would be a party.' No where it is written in clause 8 and 9 of the agreement that if defendant No.3, the owner of the landfalls to put his signature, the tripartite agreement would be void. Rather as per clause 8 and 9 respondent No. 3, the land owner has no option but to put his signature in the agreement and if he does not put his signature in the agreement, he will be failing in his duty according to the terms of agreement and this will not render the agreement void."
The High Court Division further observed that in the agreement the right of the developer to select the purchasers was not restricted in any way. The High Court Division also noticed the pleadings of the parties namely: the plaintiff, defendant Nos.l and 2 and defendant Nos.4 and 5 and then observed that "It is admitted that flat No.4-B was in the share of the defendant No.2. It is stated that 80% of the works of the project was completed. If defendant no.2 failed to complete the project, the remedies lie otherwise, but not by selling his flat No.4-B without his consent." The High Court Division in line with the learned Joint District Judge, considering the GD Entry lodged by defendant No.2 and the petition of complaint filed by him before the Chief Metropolitan Magistrate, Dhaka wherein allegations were made that his signatures were taken on some blank stamps and cartridge papers forcibly and also the fact that though police submitted final report after investigation in respect of the petition of complaint filed by defendant No.2, he filed naraji against the said final report which was rejected, defendant No.2 filed Criminal Revision No.251 of 2006 and also filed a suit for permanent injunction being Title Suit No.151 of 2005 which is still pending for hearing, disbelieved the case of defendant Nos.4 and 5 that defendant No.2 executed an agreement voluntarily to complete the project by selling the suit flat. The learned Judges of the High Court Division considered the evidence of PW1, Shahid Ahmed, son of the plaintiff who was examined on behalf of his mother. PW2, Monowar Habib? interior designer, an indepen-dent witness, DW1-(defendant No.2), DW2-who deposed on behalf of defendant Nos.4 and 5, DW3-Secretary of DOHS and came to the clear finding that defendant No.2 got the suit flat (4-B) in his share; defendant Nos.10 and 11 who are the Director and the Administrator of the Military Estate, Dhaka Cantonment respectively stated in their written statement that they had no objection if the suit flat was given to the plaintiff and defendant No.2 admitted that he took money from the plaintiff for selling the suit flat to her.
From the findings of the two Courts below, it is apparent that findings as to (a) the execution of agreement between defendant Nos.l and 2 and the deceased defendant No.3, the owner of the suit land for construction of an apartment building on the suit land with 10(ten) flats, under the name 'Heritage' (b) as per terms of the agreement executed between defendant Nos. l, 2 and deceased defendant No.3, the suit flat along with flat Nos.3/A, 2/A, 4/A and 3B fell in the share of the developer company (c) as per terms of the agreement, defendant No.l the developer company had absolute authority to choose its buyers and defendant No.3 could not have any say in the matter and he was simply obliged to sign the tripartite agreement (d) defendant No.2 entered into an agreement with the plaintiff for selling the suit flat at taka 35,00,000.00 and the plaintiffs made payment pursuant to the agreement (e) defendant No.2 did not execute any power of attorney and any deed of agreement voluntarily with defendant No.9 and the other buyers of the flats for undertaking construction of the remaining work of the project 'Heritage' on the suit land (f) the defendants (not defendant Nos.l and 2) had no right or authority to sell the suit flat to any one else (g) the developer finished the construction work of the project 'Heritage' more than 80% are concurrent. It is also necessary to state that of the concurrent indings noted hereinbefore, the first two findings are based on the admission of defendant Nos.4 and 5 in their written Statement. Mr. Mahbubey Alam also failed to show with reference to the evidence on record, both oral and documentary, that those concurrent findings of fact arrived at by the Courts below are the result of misreading or non-consideration of any material evidence or the misconstruction of the documents particu-larly the agreements entered into between the developer company and the deceased defendant No.3, so we see no scope of interference with those findings of facts.
The High Court Division rejected the objection raised by the appellants (petitioners herein) that the suit was bad for defect of party as Mr. Nesarul Islam, the subsequent purchaser, was not made a party in the suit on the clear finding that "Admittedly no registered kabala was executed for sale of the suit flat No. 4 IB to Nesarul Islam" and since there was no document on record to show that the suit flat was sold to Nesarul Islam, he was not a necessary party in the suit. Therefore, there was no defect of party in framing the suit. Mr. Mahbubey Alam could not also refer to any registered document on record to dislodge the said finding of the High Court Division. In this regard, Mr. Mahmudul Islam has rightly referred to the evidence ofDW2 (he was examined as the attorney of defendant Nos.4 and 5) in his cross-examination to the effect "....নেসারুল ইসলাম এর কাছে নাঃ ফ্ল্যাট রেজিষ্ট্রী দলিল মুলে দেওয়া হয় নাই। তার সাথে বিক্রয়ের বায়না হয় কিনা আমার জানা নাই। মিউটেশন হয় নাই।" And these evidence of DW2 show that the learned Joint District Judge and the High Court Division took the correct view as to objection of the defect of party in framing the suit.
In view of the above, the only point remains for consideration by this Division is whether the plaintiff was entitled to get the decree for specific performance of contract in respect of the suit flat against defendant No.3 and on his death against defendant Nos.4 and 5, though defendant No.3 did not sign the tripartite agreement. The learned Joint District Judge answered the point in the positive with the finding as under: "যেহেতু বাদিনীর সহিত ২নং বিবাদী ৪-বি নং ফ্ল্যাটটি বিক্রয়ের চুক্তি হইয়াছে এবং যেহেতু ৩নং বিবাদী ল্যান্ড ওনার এর সহিত ১-২নং বিবাদী ডেভোলোপার এর স্বীকৃত চুক্তি মোতাবেক ৪-বি নং ফ্ল্যাটটি ২নং বিাবদীর অংশভূক্ত ফ্ল্যাট সেহেতু ঐ ফ্ল্যাট পাইতে বাদিনী আইনতঃ হকদার।"
In coming to the said conclusion, the learned Joint District Judge considered the provisions of sections 12(c) and 27 of the Specific Relief Act. The learned Judges of High Court Division also took similar view.
Now let us see whether the Courts below were correct in taking the above view.
In deciding the point, we are to remember that the concept of undertaking construction on one's land by a developer company is a new development in our country, and it is still developing, and definitely when the Specific Relief Act was enacted in 1877 none even conceived of this kind of transaction. In this kind of transaction like the instant case, the land owner first enters into an agreement with a developer company to undertake construction works on his land on the terms and conditions as stipulated therein and also gives a power of attorney to the developer to undertake all necessary steps and works for undertaking such construction on his land. As usual the developer company which invests its capital or money in undertaking the construction work on the land of the owner is given the right to forward sell the flats which fall in his share as per terms of the agreement and by virtue of the said right, the developer company forward sells or enters into agreement with the buyers for sale of the flats within his share and a stipulation is also made in the contract between the developer and the owner of the land to sign the contract of such forward sale along with the prospective buyer which is called a tripartite agreement. And now this kind of transaction is known as real estate business. It is also to be noted that in this kind of deal or transaction, the entire financial investment is made by the developer. Same thing happened in the instant case. This will be clear if we consider the preambles and the terms of the 3 (three) contracts executed between the land owner and the developer company, defendant No. 1.
The first contract between the land owner, (deceased defendant No.3) and the developer company (defendant No.l) was signed on 18.10.2001, the first paragraph of the preamble of the said agreement reads as follows:
"WHEREAS the land owner has offered his land executioned and described in the scheduled for developer in order to construct a G+5 stored (sic) building. The developer has agreed to develop the same by constructing a G + 5 storied building having with moderns amenities by spending his own money or with the help of advance money taken from buyers or by taking loan from Bank or Financial Institution. The developer shall sell flats to buyers after keeping 50 % flats for the land owner.
Clauses 8 and 9 of the said agreement read as follows:
"08. That the developer will have the rights to register deed of conveyance to the purchasers of the 50% flats.
09. That the developer shall have the liberty to forward sell flats and obtain part payment as advance from intending buyers and execute deed of agreement showing undivided interest in the soil in favour of buyers and in that case a tripartite deed of agreement shall be executed to which the land owner would be one of the parties. Liabilities for advance money thus received shall be of the developers only. "
This agreement was followed by another agreement executed on 18.08.2002 between defendant No.3 and the developer-company making provision for constructing 2(two) more stories subject to the approval by the Cantonment Board. The first two paragraphs of the preamble of this agreement read as under:
"WHEREAS, the Land Owner has offered his land executioned and described in the schedule for the developer in order to construct, at first, a Six storied building (Ten Flats) and after approval from the Cantonment Board, to construction additional two story i. e. Eight story flats building (Fourteen Flats). The Developer has agreed to develop the same by constructing at (sic) a Six storied building (Ten Flats) and after approval from the Cantonment Board to construct additional Two story i.e. Eight story flat building (Fourteen Flats) having modern amenities by spending his own money or with the help of advance money taken from buyers or by taking a loan from the Bank or a Financial Institution.
The Developer shall sell the first 5 (five) flats to buyers and after approval from the Cantonment Board for Eight Story Construction, an additional 2(two) flats, i.e. Total 7(seven) Flats. The Developer will also hand over 5 (five) flats to the Land Owner and after approval from the Cantonment Board for an Eight Story Constr-uction, additional 2(two) flats i.e. Total 7 (seven) flats 50% parking space. The foundation for the Eight Storied building will now be made."
Clauses 7-10 of the agreement are as under:
"7. That the Developer shall have the rights to register the Deed of Conveyance to the purchasers of the 50% Flats giving full possession of the 50% Flats and 50% of Parking Space to the Land Owner. Registration will be made showing undivided interest in the soil in favour of the buyers.
8. That the Developer shall have the liberty to forward sell Flats and obtains part-payments as advance from intending Buyers and execute a Tripartite Deed of
9. Agreement to which the Land Owner will be one of the parties. Liabilities for the advance money thus received shall be of the Developers only.
10.That the Developer would have the option to reallocate/cancel Flats of payment defaulters and offer choice to buyers willing and having cleared dues. "
And this deed was again followed by another deed dated 16.08.2004 under the style "SUPPLEMENTARY DEED OF AGREEMENT."
Paragraphs 1, 5 and 6 of the preamble of his supplementary agreement read as under:
"AND WHEREAS the LAND OWNER has mutually agreed to make changes in the original DEED OF AGREEMENT dated 18.08.2002 and the parties made this Supplementary Deed of Agreement
Clauses 1, 3, 6, 9, 10, 11, and 12 of this agreement run thus:
"01. That since the Developer have already started constructing the building after signing the Agreement dated 18th August, 2002, it is further stipulated that the Developer will construction 10 (ten) flats of about 2050 sft. Apt. Area each on the scheduled land within February, 2005, failing which a penalty of Tk. 50,000/-(Taka Fifty Thousand) per month to be paid to the Land Owner by the Developer until the complete hand over of his share of the Flats.
03. That the Land Owner have already delivered possession of the vacant Land to the Developer for the construction of the Building after signing the Deed of Agreement dated 18th August, 2002.
06. That the Developer have already got the Plan Approved for constructing the proposed Six Storied apartment building from the Dhaka Cantonment Board and arrange the funds from his own resources, and from the prospective buyers if necessary or by taking loan from the Bank or Financial Institution. In taking money from the Bank or Financial Institution, or an Individual, the Developer will not mortgage the Flats/Apartments or the Landed Property on which the Developer will construct the proposed Apartment Building.
09. That the Land Owner shall execute and register Deed of Conveyance of 5 (five) Flats of Developer's share in favour of Developer or his selected Purchaser after receiving the possession of 5 (five) Flats and 50% of Parking Space from the Developer as per clauses and schedule stated in the Deed of Agreement.
10. That the Developer shall have the liberty to forward sell Flats and obtains (sic) part-payments as advance from intending Buyers and also receive full payment against the cost of the flat on or before giving full possession of the flats to the purchaser. The Developer shall also execute a Tripartite Deed of Agreement to which the Land Owner will be one of the parties; Liabilities for the money thus received by the Developer against the cost of the flats shall be of the Developers only. The Land Owner will have no responsibility of giving possession of the flats to the purchasers. In executing this clause, the Developer shall act in a way in which the interest of the land Owner i.e. receiving possession of 5 (five) flats and 50% parking space as stated in clause 09 and completion of the Building in all respects are maintained.
11. That the Developer would hand over 5 (five) Flats to the Land Owner in the following manners i.e. 1st floor 2(two), Flats, 5th Floor, 2 (two) Flat and 2nd Floor. North side I (one) flat as per measurements. The Developer will construct a small room, present kitchen size (250 sft.) on the top floor (roof) for the use of the Land Owner (for servants) and a cover for keeping a car after the demolishing of the existing garage and servant quarters. The Developer will also hand over 50% of the Parking Space-as per the design-on the ground floor to the Land Owner.
12. That Ownership of the 5 (five) Flats of Developer's share shall be on the basis of Sale Deed. As soon as the purchasers of the flat pays full payment of the price of the Apartment to the Developer and the Developer complete the construction of the six storied building including the Parking Space in all respects and hand over manner. Land Owner would have no liabilities of any manner."
It is also to be noted that defendant Nos.4 and 5 never denied the execution of the three agreements by their predecessor, deceased defendant No. 3 with the developer company. Rather DW2 in his examination-in-chief as well as in cross-examination by the plaintiff cearly admitted execution of the said three agreements by deceased defendant No. 3. Relevant portion of the evidence of DW2 is as follows:"......৩নং বিবাদী ১৮/১০/২০০১ ইং তাং ১৮/৮/২০০২ইং ১৬/৮/২০০৪ইং তারিখ তিনটি চুক্তি করেছিল ডেভেলপার এর সাথে।"
The major difference between the first 2(two) agreements and the last agreement (supplementary agreement) was that in the last agreement the parties, i.e. the developer and the land owner (defendant No. 3) made an amicable partition between them of the flats to be constructed on the suit land and as per the said partition, the suit flat fell in the share of the developer, defendant No. 1 of which defendant No.2 is the Chairman. It is also significant that the agreement to sell the suit flat by the developer to the plaintiff was entered into on 19.08.2004, i.e. after the execution of the supplementary agreement on 16.08.2004 and defendant Nos.l and 2 in their written statement categorically admitted the fact of entering into agreement with the plaintiff (exhibit-8) for selling the suit flat which fell in their share. It is also very pertinent to state that defendant Nos.4 and 5 in their written statement clearly admitted the fact of selling the four other flats by the developer to the other sellers, namely: defendant No.9-Md. Saiful Islam, Ishtiaque Ahmed, Abdullahil Rakib and Mozammel Hossain and no question was also raised by them about the signing of the tripartite agreement by deceased defendant No.3 while selling 4(four) flats to them. Defendant Nos.4 and 5 raised the dispute only about the sale of the suit flat. The paragraphs of the preambles of 3(three) agreements and the clauses as quoted hereinb-efore clearly show that the land owner undertook to sign the agreement to be executed in between the developer and the purchaser to be called as tripartite agreement. It is also noteworthy to mention that the terms of the agreements clearly show that the land owner had/has no stake whatsoever in selling the flats by the developer to the buyers and that he would have no choice but to sign the agreement which would be executed and signed by the developer with the buyer. The terms of the agreements further show that the land owner gave unqualified power and authority to the developer to forward sell the flats of its share and to receive part payment as advance money against such sale of the flats from the buyers including the power to register the deed of conveyance and also to enter into agreement for such sale. But, the facts as emerged from the pleading show that defendant No.3 preferred not to sign the agreement entered into between the plaintiff and the developer and in the suit defendant Nos.4 and 5 took the plea that since defendant No.3 did not sign the tripartite agreement, they were not bound by the agreement executed between defendant No.2 and the plaintiff on 19.08.2004; in other words, defendant No.3 not being party to the agreement, the same could not be specifically enforced against defendant Nos.4 and 5 who are the heirs of defendant No.3(since dead).
Now, the question is when defendant No.3 in three written agreements specifically undertook to sign the tripartite agreement to be executed between the developer and the buyer, could he, and in his absence, defendant Nos.4 and 5, take the plea that since defendant No.3 did not sign the tripartite agreement specific performance of contract entered into between the plaintiff and defendant Nos.l and 2 could not be enforced against them. Our answer is-no. Because in that case, the purchaser-plaintiff who having seen the agreements executed between the land owner and the developer, on good faith, entered into agreement with the developer to purchase the suit flat and paid her good money for the purpose, shall be defrauded. Further, reading the clauses of 3(three) agreements executed between the land owner and the developer as quoted hereinbefore, it appears to us that the land owner having allowed the developer to forward sell of the flats of their share to the buyers by entering into agreement and accepting part payment as advance, was duty bound to sign the tripartite agreement. We are also of the view that since the land owner in clear terms undertook in the agreements executed between him and the developer to sign the tripartite agreement, he was estopped from taking such plea within the meaning of section 115 of the Evidence Act, because, he by signing the 3 (three) agreements with the developer in the terms as quoted hereinbefore caused a belief in the mind of the plaintiff, a buyer that he would put his signature in the tripartite agreement as a matter of course. The plea of defendant Nos.4 and 5 also sounds to us a bit strange and self contradictory as, though they admitted the fact of sale of the other flats by the developer to four persons (names have been mentioned hereinbefore), they took a completely revetse plea in respect of the suit flat. It is also to be noted that defendant Nos.4 and 5 clearly admitted the fact of getting the flats which fell in their share. One thing we must point out here is that in support of the case of defendant Nos.4 and 5 that defendant No.2 having failed to undertake the construction work of the project 'Heritage' had abandoned the project, the defendants failed to file a single scrap of paper to show that either they or the other purchasers from the developer ever made any correspondence with the developer company and gave any notice to them asking them to complete the construction of the project. And this in fact substantiates the case of defendant Nos.l and 2 that defendant No.2 never executed any deed of agreement in favour of defendant No.9 and other fiat purchasers and any power of attorney giving them any power to complete the rest work of the project 'Heritage'. It is also very important to state that in the 1st and the last agreement executed between the land owner and the developer there were provisions for penalty at the rate of taka 50,000.00 per month to be paid to the land owner by the developer in case the developer failed to hand over the flats to him within the time stipulated therein. Therefore, defendant No.3 had no reason or cause to disengage the developer from undertaking the remaining work of the project and then to take step to complete the works by engaging others as alleged by defendant Nos.4 and 5. The plea that since defendant No.3 did not sign the tripartite agreement, defendant Nos.4 and 5 are not bound by the contract entered into between the plaintiff and defendant Nos.l and 2, does not also appear to us bonafide. If such plea is given countenance to, then, the intending buyers from the builder construction companies shall be put into unnecessary harassment and suffering which shall have also a negative impact upon the real estate business.
In the context, we feel it necessary to consider clauses (a)(b)(c)(d)(e) and (f) of the interpretation clause of the Contract Act as given in section 2 thereof in order to see whether mere non-signing of the tripartite agreement shall absolve defendant No.3 4nd in his absence defendant Nos.4 and 5 from being bound by the agreement which was signed by the two other parties, namely, the developer and the plaintiff.
Clauses (a)-(f) of the interpretation 'clause read as under:
(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal:
(b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted becomes a promise:
(c) The person making the proposal is called the "promisor," and the person accepting the proposal is called the "promise".
(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains, from doing or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise:
(e) Every promise and every set of promises, forming the consideration for each other, is an agreement:
(f) Promises which form the consideration or part of the consideration for each other are called reciprocal promises:
From a combined reading of the above clauses of section 2 of the Contract Act read with the paragraphs of the preambles and the terms of 3(three) agreements as discussed above, it is abundantly clear that defendant No.3 entered into an agreement: with defendant Nos.l and 2 to sign the tripartite agreement without any reservation, whatsoever, in case the developer forward sells its share of the flats of the project 'Heritage1. As already stated hereinbefore, in paragraphs 21(ga) of the written statement defendant Nos.4 and 5 categorically admitted that flat Nos.2/A, 3/A, 3/B, 4/A and 4-B fell in the share of the developer. So, defendant No.2 did not commit any wrong or illegality in entering into contract with the plaintiff to sell the suit flat. In this regard, we may also refer to section 10 of the Contract Act. This section has clearly spelt out that all agreements are contracts if they are made by the free consent of parties competent to contract for a lawful object and are not "hereby expressly declared to be void." "Hear" refers to second part of the section (second part of the section is not applicable in the facts and circumstances of the instant case). Now .if we flashback to the preambles and the clauses of the agreements as entered into between the developer-company and defendant No'. 3 as quoted hereinbefore and consider those along with clauses (a)(b)(c)(d)(e) and (f) of section 2 and section 10 of the Contract Act, it would prima facie appear that the land owner of his own accord agreed to sign the agreement to be executed between the developer and the buyers of the flats which fell in the share of the developer, therefore, the plea of defendant Nos.4 and 5 that their predecessor defendant No.3 not being a signatory to the tripartite agreement the same cannot be enforced against them is not legally sustainable.
It is very significant to state that defendant Nos.4 and 5 never took the plea that defendant No.3 rescinded or cancelled the contract executed with the developer-company. It is also very pertinent to state that in paragraph-20 of the last agreement (the supplementary agreement), it has been specifically stipulated that "any dispute or differences arising between the parties of this Deed with regards to the construction shall be referred to Military Estate Officer (M.E.O) Dhaka Cantonment, Dhaka and has them settled once for all." But, the land owner (deceased defendant No.3) never resorted to the said arbitration clause, though the case of defendant Nos.4 and 5 was that as the developer could not complete the work of the project satisfactorily they had abandoned the project and then defendant No. 3 completed rest work of the project by engaging his own men including the other flats' buyers from the developer-company. Rather it is the plaintiff who approached the Cantonment Board by filing an application on 20.12.2006 complaining that though the developer signed the tripartite agreement in respect of the sale of the suit flat, the land owner did not sign the same as admitted by defendant Nos.10 and 11 in their written statement. The plea of defendant Nos.4 and 5 that defendant No.2 voluntarily executed an agreement on 15.02.2005 in favour of the other flat owners to complete the remaining works of the project 'Heritage' by expressing his inability to finish the work is purely question of fact and the plea has been disbelieved by the Courts below by giving reasons with reference to the evidence as already discussed hereinbefore (we do not discuss it here to avoid repetition). More interesting part of the case is that defendant Nos.4 and 5 in their written statement categorically admitted the fact of sale of other four flats by the developer to four buyers (except the suit flat) and also receipt of taka 1,36,03,000.00 from them and thus admitted the fact of ownership of the developer about 5 (five) flats including the suit flat and also their right to transfer those flats then how defendant No.3 and after his death defendant Nos.4 and 5 could deny their liability to execute and register the kabala in respect of the suit flat? We also failed to understand how defendant No.3 and other flat buyers from the developer of the project in question could claim to sell the suit flat when admittedly the same fell in the share of the developer and defendant No.2 as its Chairman entered into an agreement with the plaintiff to sell the same. Such a case of defendant Nos.4 and 5, sounds to us absolutely illogical as well as unconscionable. And moreso, when the agreem-ents entered into between the land owner and the developer had remained in force till date.
Chapter 11 of the Specific Relief Act has dealt with "Of the Specific Performance-for Contracts". Section 12 of the Act has dealt with the contracts which may, in the discretion of the Court be enforced in the discretion of the Court except as otherwise provided in the Chapter. In the context, wc are concerned with clause (a) of section 12. From a reading of clause (a) and the main section it is° clear that when the act agreed to be done is in the performance wholly or partly, of a trust that can be specifically enforced. In the instant case, defendant No. 1 developer having the right to forward sell the suit flat entered into an agreement vide exhibit-'S' with the plaintiff by signing the same and the plaintiff having paid the part payment of the contracted money which has also been admitted by defendant Nos.l and 2 in their written statement, the act agreed to be done was partly performed and was in the nature of a trust, the land owner having agreed in unequivocal term to sign the tripartite agreement in case the developer forward sells out the flats of its share could not have a different identity other than a party with the developer and could not keep himself away by not signing the agreement. And/defendant Nos.4 and 5 being the heirs or defendant No.3, specific performance of the contract, can very much be enforced against them within the meaning of section 27 of the Specific Relief Act. Therefore, the Court below rightly decreed the suit. It may be stated that breach of agreement to sell a flat to be constructed on the suit land cannot be adequately compensated by money as explained by the legislature in the explanation appended to the section and therefore, clauses (b) (c) and (d) to section 12 are also attracted in the instant case.
In view of the above, the High Court Division did not commit any illegality in concurring with the decision of the learned Joint District Judge in decreeing the suit.
From the statements made in the plaint and the written statement of defendant Nos. 1 and 2 and the evidence on record one thing is clear that after 80% of the works of the project 'Heritage' particularly, the suit flat was completed the land owner somehow disengaged the developer from completing the remaining work of the project and then it was done by him through his men. So, defendant Nos.4 and 5 are entitled to get the cost incurred in completing the 20% works of suit flat from the developer company which escaped the notice of the learned Joint District Judge as well as the High Court Division. In this regard, it may be stated that though in paragraph-5 of the plaint, the plaintiff specifically stated that 80% works of the project was completed when she was giving pressure upon the developer to get the signature of defendant No.3 in the agreement dated 19.08.2004, defendant Nos.4 and 5 after quoting the said portion of the plaint in their written statement simply denied the same in a general way without stating their version of the progress of the work. Defendant Nos.l and 2 also in their written statement asserted that they completed more than 80% work of the project and these assertions of defendant Nos.l and 2 were also not denied by defendant Nos.4 and 5 in their written statement. Defendant Nos.4 and 5 have also not stated how much cost was incurred for the completion of the remaining 20% works of the suit flat (we are not concerned about the other flats of the project). It is also noteworthy that in paragraph 21 of the written statement where actual facts have been stated defendant Nos.4 and 5 have not stated at what stage of the work of the project the developer had allegedly abandoned the same. Be that as it may, assessment of cost is basically a question of fact and this is neither desirable nor possible for this Division. If, so advised, defendant Nos.4 and 5 may demand the amount of 20% of the cost incurred by them in completing the work of the suit flat from the developer by giving notice in writing within one month from the date of receipt of this judgment by furnishing accounts of such cost and if any dispute arises as to the quantum of cost between them, then the parties may resolve the matter by resorting to clause 20 of the supplementary agreement dated 16.08.2004.
With the above observations, this petition is dismissed.