Syed Amir Ali alias Syed Faizul Islam Vs. Syed Asaddar ali and others 2016 (2) LNJ 101

Case No: First Appeal No. 222 of 2010

Judge: Soumendra Sarker,

Court: High Court Division,,

Advocate: Mr. Surojit Bhattacharjee,Mr. Uzzal Bhowmick,,

Citation: 2016 (2) LNJ 101

Case Year: 2016

Appellant: Syed Amir Ali alias Syed Faizul Islam

Respondent: Syed Asaddar ali and others

Subject: Civil Law,

Delivery Date: 2016-04-12

Syed Amir Ali alias Syed Faizul Islam Vs. Syed Asaddar ali and others 2016 (2) LNJ 101
 
HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
Soumendra Sarker, J
Judgment on
12.04.2016
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Syed Amir Ali alias Syed Faizul Islam
. . . Plaintiff-Appellant
-Versus-
Syed Asaddar ali and others
. . . Defendant-Respondents

Specific Relief Act (I of 1877)
Section 21A(b)
Section 21A(b) was inserted by Act No. XXVII of 2004. In the pretext of this provision for depositing the balance consideration money is a condition-precedent as well as mandatory provision of law, failing which it would not be possible to enforce the contract by filing a suit for specific performance of contract. The provision of section 21A(b) specifically provides that the balance consideration money is required to be deposited at the time of filing of the suit and  there is no scope for the plaintiff to make deposit of the balance consideration money beyond the statutory period of limitation. Consequently; in absence of deposit of balance consideration money the suit is barred. The learned trial Judge was justified the holding the view that he has no other alternative but to hold that the suit is not maintainable by law.                        . . . (11)

Osman Gani Mondal Vs. Mainuddin Ahmed and others, 27 DLR (AD) 61 and JMS Glass Industries Ltd. Vs. Customs, Excise and VAT Appellate Tribunal and others, 64 DLR (AD) 43 ref.

Mr. Surojit Bhattacharjee, Advocate
. . . For the Appellant.
Mr. Uzzal Bhowmick, Advocate
…For the Respondents.
 
 
JUDGMENT
Soumendra Sarker, J:
This appeal is directed at the instance of the plaintiff-appellant against the judgment and decree dated 18.04.2010 and 21.04.2010 respectively passed by the learned Joint District Judge, 1st Court, Sunamganj, in Title Suit No. 15 of 2006 rejecting the plaint.
  1. The facts relevant for disposal of the appeal in a nut shell can be stated thus the present appellant as plaintiff instituted the original Title Suit being No.15 of 2006 in the 1st Court of learned Joint District Judge, Sunamganj against the present respondents who were defendants to the original suit for Specific Performance of Contract of sale in respect of the suit property and further declaration that the kabala deed being No.1100 of 2005 dated 24.05.2005 is illegal, void, collusive and not binding upon the plaintiff with a prayer for confirmation of possession. After service of summons-notice upon the defendants therein the defendant-respondents appeared and filed a written statement denying all the material allegations made in the contents of the plaint among which there was a contention from the side of the defendants that the suit as has been filed is not maintainable. While the suit was ready for pre-emptory hearing the defendant-respondents again on 03.02.2010 filed an application under Order VII rule 11(d) of the Code of Civil Procedure for rejection of the plaint on the ground that the plaint would be rejected under section 21A(b) of the Specific Relief Act. The learned trial Judge by his order dated 18.04.2010 rejected the plaint of Title Suit No. 15 of 2006 and thereby dismissing the suit.
  2. Being aggrieved by and dissatisfied with the impugned order of rejection of the plaint the plaintiff have preferred this appeal.
  3. During hearing of this First Appeal Mr. Surojit Bhattacharjee, the learned Advocate appeared on behalf of the appellant while Mr. Uzzal Bhoumick, the learned Advocate appeared on behalf of the respondents.
  4. The learned Advocate appearing on behalf of the appellant submits that the learned trial Judge i.e. the learned Joint District Judge, 1st Court, Sunamganj during passing the impugned order committed illegality and during pre-emptory hearing stage of the original suit the defendant-respondents filed an application for rejection of the plaint along with dismissal of the original suit. The learned Advocate further submits that the learned Joint District Judge in rejecting the plaint failed to consider that the plaintiff has been in possession of the suit land on the basis of a contract dated 12.08.2004. The learned Advocate also submits that the learned court below misdirected himself in the question of law and facts. The relief sought for in the original plaint was not properly considered by the learned court below. The learned trial court ought to have found that the plaintiff  filed the suit for acquisition of  title by adverse possession from the father of the executant of bainapatra dated 24.07.2004 and lastly the learned Advocate submits, that the court below erroneously held that the suit  is not maintainable under section 21A(b) of the Specific Relief Act and the trial Judge without going through the contents of the plaint being failed to consider the materials on record on surmise and conjecture passed the impugned order which is liable to be set aside.
  5. As against the aforesaid submissions of the learned Advocate of the appellant the learned Advocate appearing on behalf of the respondents opposing the grounds of the appeal-memo controverted the argument advanced from the side of the learned counsel of the appellant and submits that the learned trial Judge was quite justified and legal in passing the impugned order dated 18.04.2010 inasmuch as violating the provisions laid down in section 21A(b) of the Specific Relief Act (Act XVI of 1908) without depositing the balance amount of consideration of the contract the suit for specific of contract has been filed by the plaintiff. The learned Advocate further submits that from the very beginning of filing of the written statement it was alleged from the side of the defendants that the suit as instituted is not maintainable. During pendency of the suit the defendants to the original suit again filed an application under Order VII rule 11(d) of the Code of Civil Procedure and brought a definite cause for which the suit is liable to be dismissed as the plaint would be rejected under the provisions of law and the learned Joint District Judge, 1st Court, Sunamganj vide his order dated 18.04.2010 rightly held that the bainapatra which was submitted from the side of the plaintiff is shown to have executed on 12.08.2004 and in that bainapatra there is a recital that the consideration amount is Tk. 5,25,000/- (Taka Five lac and twenty five thousand). Out of that total amount of consideration money only Tk.4,00,000/- (Taka Four lac) was paid in favour of the executant and Tk.1,25,000/-(Taka One lac and twenty five thousand) was due. The learned Advocate lastly submits that it is apparent from the face of the record that the plaintiff to the suit at the time of filling of the original suit not deposited the balance consideration amount and as such the suit was not maintainable. The learned trial Judge rightly under the provision of law rejected the plaint and there is nothing to interfere with the impugned judgment and order.
  6. I have considered the submissions of the learned Advocates and have gone through the relevant papers including the plaint itself and the impugned order of the learned Joint District Judge, 1st Court, Sunamganj dated 18.04.2010 and 21.04.2010 in Title Suit No.15 of 2006.
  7. On perusal of the papers it transpires that the plaintiff-appellant instituted the original suit for specific performance of contract and  cancellation of a sub-kabala deed being No.1100 dated 24.05.2005 with confirmation of possession in the suit property appertaining to Mouza Syedpur corresponding to J.L. No.133 of settlement khatian No.1505 and 1669 and present khatian No. 4046 in plot No.4567. It is also apparent from the case records that in the suit for specific performance of contract the bainanama deed upon which the plaintiff banked upon was for consideration amount of Tk. 5,25,000/-(Taka Five lac and twenty five thousand) and it was contended by the plaintiff that out of the total consideration amount the defendant No.1 who was the executant of the deed accepted Tk.4,00,000/- (Taka Four lac) and executed the bananama but subsequently denying to take the balance consideration amount of Tk.1,25,000/-(Taka One lac and twenty five thousand) the defendant-respondents on 16.12.2005 refused to execute and register the kabala deed in favour of the plaintiff which is the cause of action of the original suit.
  8. It further transpires from the case records that the defendants during pendency of the original suit on 03.02.2010 filed an application for rejection of the plaint under Order VII, rule 11(d) of the Code of Civil Procedure stating that the suit is barred by law as the plaintiff have failed to deposit the balance consideration amount of Taka Tk.1,25,000/-(Taka One lac and twenty five thousand) at the time of institution of the original suit.
  9. The learned trial court hearing the application, by the impugned order dated 18.04.2010 rejected the plaint. In the impugned order it was held by the learned trial Judge that the suit is barred by the provisions laid down in section 21 A(b) of the Specific Relief Act which is the amended provisions of the relevant law. In this context; the provision of law as incorporated in section 21A(b) reads as follows,
   “notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, no contract for sale of any immovable property can be specifically enforced unless-
  1. …………………………………………………
  2. The balance amount of consideration of the contract is deposited in the Court at the time of filing the suit for specific performance of the contract.”
  1. The fact remains that this section 21A(b) was inserted by Act No. XXVII of 2004. In the pretext of this provision for depositing the balance consideration money is a condition-precedent as well as mandatory provision of law, failing which it would not be possible to enforce the contract by filing a suit for specific performance of contract. The provision of section 21A(b) specifically provides that the balance consideration money is required to be deposited at the time of filing of the suit and  there is no scope for the plaintiff to make deposit of the balance consideration money beyond the statutory period of limitation. Consequently; in absence of deposit of balance consideration money the suit is barred. The learned trial Judge was justified the holding the view that he has no other alternative but to held that the suit is not maintainable by law.
  2. In this context; their lordships in the case of Osman Gani Mondal –vs.-Mainuddin Ahmed and others, 27 DLR(AD)61 held that, where there is a cardinal rule of construction that the statutory restrictions are coached in negative terms they are almost invariably held to be mandatory. Our Apex Court with regard to the Constitution of Bangladesh 1972, 4th schedule, paragraph-7 opined the aforesaid view. Apart from this; in a case law reported in 64 DLR(AD)43 their lordships in the case of JMS Glass Industries Ltd. –vs.- Customs, Excise and VAT Appellate Tribunal and others held that, in the case of condition-precedent there is no scope of any option or discretion which can be applied to waive or dispense with the deposit of money within a period prescribed by law.
  3. Having regard to the facts, circumstances and discussions referred to above I am constrained to hold such a view that this appeal have got no substance to succeed.
  4. In the result, the appeal is dismissed without any order as to costs. The impugned judgment and decree dated 18.04.2010 and 21.04.2010 respectively passed by the learned Joint District Judge, 1st Court, Sunamganj, in Title Suit No. 15 of 2006 is hereby upheld and confirmed.
         Let a copy of the judgment along with the Lower Court’s Record be sent down at once.
Ed.