Ashok Dung Dung v. P.K Deepak Kumar

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] CIVIL APPELLATE JURISDICTION

Present:

The Hon'ble Justice Supratim Bhattacharya SA 1 of 2024 Ashok Dung Dung vs.

P.K. Deepak Kumar For the Appellant : Mr. Ananda Halder For the Respondent : Mr. Ajay Kumar Mondal Judgement Delivered On : 11.09.2025 Supratim Bhattacharya, J.:

1.

The appellant namely Ashok Dung Dung has assailed the judgment and decree passed by the Ld. First Appellate Court that is the Ld. District Judge, Andaman & Nicobar Island in Other Appeal No. 12 of 2023 on 05.03.2024.

2.

The lis was initiated by the appellant /plaintiff by preferring a suit being Other Suit No. 9 of 2018 filed before the Ld. Civil Judge, Sr. Divn. Port Blair.

The respondent defendant entered appearance in the said suit and filed written statement making counter claim therein. The Ld. Trial Judge vide judgment dated 21st August, 2023 dismissed the prayer of the appellant/plaintiff and also the prayer of the respondent/defendant namely P.K. Deepak Kumar.

3.

It is to be mentioned herein that the appellant /plaintiff prayed for a decree cancelling the impugned agreement for sale dated 20.12.2010 by declaring the said agreement as void being obtained by fraud.

4.

The respondent/defendant entered appearance in the said suit and filed his written statement along with counter claim seeking a decree for specific performance of contract by directing the plaintiff to execute the said sale deed in his favour. Both the prayer of the appellant/plaintiff and the respondent /defendant being dismissed the respondent/defendant herein preferred the First Appeal against the judgment passed by the Ld. Trial Court.

5.

Facts before the Ld. Trial Court The appellant herein who was the plaintiff before the Trial Court has instituted the lis stating that the appellant/plaintiff is the recorded owner of the land bearing survey No. 291/P measuring 1950 square metres of land situated at Govindnagar Village, Havlock Island, Port Blair Tehsil, District- South Andaman, out of the total area measuring 0.455 hectares comprised within the aforesaid survey number. One Shyam Mistri along with the appellant/plaintiff had purchased the entire property bearing the said survey number comprising of 0.455 hectares out of which the said Shyam had purchased 2600 square meters of land while the appellant had purchased the remaining 1950 square meters of land.

According to the appellant/plaintiff he has studied up to 6th standard in Hindi medium and he is unable to read and write English but is only able to sign in English. He got a job of operating and plying vessel belonging to one Jayanta Bala and joined the said job in the year 2009. As Jayanta Bala was the employer of the plaintiff so he believed him and during the subsistence of such relationship the said Jayanta Bala obtained signatures of the appellant on various papers. According to him one day while plying the vessel, officers of the fisheries department had enquired him as regards to how he is plying the vessel belonging to Jayanta Bala. As a consequence of which the said Jayanta Bala obtained signatures of the appellant on various papers saying that those papers are going to be used for official purpose for plying the vessel.

Accordingly, the appellant had signed on several papers as well as in a Register in front of an advocate but the said advocate had not read over the contents of the documents to the appellant. The said Jayanta Bala utilizing the fiduciary relationship between them and taking advantage of the same obtained the signatures to which the plaintiff could not express anything. The appellant/plaintiff along with his family has been residing in the said suit property by constructing a house since the year 2002 and has obtained electricity and water connection. 6.

On 08.01.2018 a police constable came to his house and asked him to attend the police station on the next day. Accordingly, the appellant had gone to the police station and found the

respondent/defendant there. Police personnel present therein disclosed that the respondent/defendant has lodged a complaint stating that the appellant has agreed to sale his land and has received money from the respondent but now the appellant is not abiding by the same. After hearing the same the appellant preferred the present lis.

7.

Through the written statement the respondent /defendant controverted the statements made by the plaintiff through the plaint and has also made counter claim. The defendant has stated that the agreement for sale took place on 20.12.2010 and an advance of Rs. 5,00,000/- was paid to the appellant /plaintiff through two cheques, bearing cheque No. 429321 amounting Rs. 2,00,000/- and another cheque bearing number 429324 amounting Rs. 3,00,000/-.

8.

As per the said agreement the appellant/plaintiff had handed over peaceful uninterrupted possession of the suit property to him and he had made fencing at the four corners by developing the said land and has also planted fruit bearing trees. 9.

During the month of March, 2011 the appellant had further demanded money and accordingly on 24.03.2011 the defendant had paid further sum of Rs. 20,000/- through a Cheque bearing No. 432925 of the Axis Bank, Port Blair. At that time the respondent had requested the appellant to authorize a power of attorney in favour of one Harishchandra, the then employer of the

respondent/defendant accordingly a power of attorney was given in favour of the said Harishchandra.

10.

Thereafter a legal notice was sent to the appellant calling upon him to complete the sale in respect of the suit property in favour of the respondent. In response to the said notice the appellant sent a reply. Being not able to get the deed for sale executed by the appellant, respondent has made the counter claim praying for specific performance of the contract.

The appellant/plaintiff has also filed a written statement against the counter claim of the defendant and has prayed for dismissal of the counter claim made by the defendant.

On the basis of the pleadings of the parties the following issues were framed:

"1. Is the suit maintainable in its present from and prayer?

2. Has the plaintiff any cause of action to file the suit?

3. Is the suit bad for nonjoinder of parties?

4. Is the suit barred by limitation?

5. Is the impugned agreement for sale, a product of fraud and misrepresentation?

6. Is the agreement between the parties, a valid agreement and enforcable by law?

7. Is the plaintiff entitled to the decree as prayed for?

8. To what other relief, if any, is the plaintiff entitled to?

9. Is the counter claim maintainable in its present from and prayer?

10. Has the defendant any cause of action to file the suit?

11. Was there a willful negligence on the part of the defendant in performing his part to the contract?

12. Is the performance of the agreement barred by the law of limitation?

13. Is the defendant entitled to get the decree as set up by way of counter claim?

14. To what other relief, if any, is the defendant entitled to?"

On behalf of the plaintiff, three witnesses have adduced evidence. PW1 - The Plaintiff himself, PW2 - The Wife of the plaintiff, PW3- Aloke Mistri , son of late Shyam Mistri. The following documents have been exhibited on behalf of the plaintiff; Exhibit -1: Record of Rights, Exhibit-2 series: Electricity bill dated 04.12.2017 In the name of the plaintiff.

Exhibit-3 (collectively): Computer generated statement of accounts in respect of the savings account of the plaintiff. Exhibit -4: Legal notice dated 18.01.2018.

Exhibit-5: Reply dated 25.01.2018 to the said legal notice. On behalf of the defendant four witnesses have deposed, they are DW1- The defendant himself, DW2- Alokesh Sarkar, Ld. Advocate (notary public),

DW3- Ms. A. S. Zinu , Ld. Advocate (notary public), DW4 - Ranjit , an employee of Axis Bank.

Following documents have been exhibited on behalf of the defendant: Exhibit-A: Original perpetual lease agreement. Exhibit-B: Original instrument for cancellation of the agreement for sale between the plaintiff and Jayanta Bala . Exhibit-C: Original impugned agreement for sale dated 20.12.2010. Exhibit-D: Money receipt.

Exhibit-E: One agreement for sale dated 11.05.2010 Exhibit-F: FIR being No. 4 of 2011.

Exhibit-G: Certified to be true copy of notary register bearing serial No. 116 and 117 dated 11.05.2010.

Exhibit-H: Certified to be true copy of notary register bearing serial No. 4871 dated 22.01.2011.

Exhibit-I: Authorization letter.

Exhibit-J: Statement of account of P.K. Deepak Kumar. Exhibit-K (series): Certified to be true copy of four cheques , three in the name of Ashok Dung Dung and one in the name of Jayanta Bala. 11.

After considering oral evidence and documentary evidence, the Trial Court has dismissed on contest both the prayer of the plaintiff

seeking cancellation of the impugned deed and the prayer of the defendant seeking specific performance of the impugned deed. 12.

Facts before the Ld. First Appellate court Being aggrieved by and dissatisfied with the judgment of the Trial Court the defendant therein preferred the appeal being Other Appeal No. 12 of 2023 before the ld. District Judge, Andaman and Nicobar Islands. The First Appellate Court allowed the said appeal on contest by passing the following order:

" Hence, it is ORDERED that the Other Appeal being No. 12 of 2023 be and the same is allowed on contest with cost.

The respondent herein/the plaintiff of the Other Suit being No. 09 of 2018 is hereby directed to execute sale deed with respect to the suit property in favour of the appellant herein/defendant of the Other Appeal being No. 09 of 2018 in terms of sale agreement dated 20.12.2010 within three months from this date and the respondent herein/the plaintiff of the Other Suit being No. 09 of 2018 is also restrained from disturbing the possession of the appellant herein/defendant in respect of the suit property as mentioned in the Other Suit being No.09 of 2018."

13.

Being aggrieved by and dissatisfied with the order passed by the Ld. First appellate Court the appellant has preferred the instant appeal.

14.

At the time of the admission of the present appeal the following substantial questions of law have been framed: "a) Whether the learned First Appellate Court erred in allowing the counter claim without deciding whether the counterclaim is barred by Article 54 of the Limitation Act.

(b) Whether the learned First Appellate Court misconstrued the Article 54 of the Limitation Act. (c) Whether the learned First Appellate Court misappreciated the evidences led at the trial." 15.

Ld. Counsel Mr. Ananda Halder representing the appellant submitted the following:

i) The appellant being a person having passed only the 6th standard and not being able to understand English language has been treated fraudulently.

ii) At the relevant point of time the appellant was under the employment of Jayanta Bala navigating his vessel, as such taking advantage of the fiduciary relationship between the employer and the employee, the employee has been cheated. iii) On the pretext of preparing some official documents for smooth plying of the vessel the employer had obtained several signatures of the appellant on several documents which were not read over to him and on the pretext of signing on the official documents several instruments were prepared involving the immovable property, of which the appellant is the owner. iv) The appellant had neither earlier nor at present is in need of money as such there was /is no necessity of keeping at stake

the only habitable property which the appellant along with his family has been enjoying since the year 2002 by constructing upon the same.

v) The appellant has never received any amount of money as part consideration for sale of residential property. vi) The employer Jayanta Bala on several occasions had directed the appellant to deposit cheques which were issued in his (Ashok Dung Dung) name and soon thereafter used to take back the money.

vii) The appellant could not say anything as because he was under employment of Jayanta Bala till September, 2011. As the appellant has never signed on the agreement for sale or any other instrument knowing the documents to be the same and had not taken any money as consideration amount so it is appropriate that the impugned agreement for sale be cancelled and specific performance of contract in respect of the said impugned instrument be not allowed.

viii) The respondent cannot pray for enforcement of specific performance of contract. For the sake of argument if at all the parameters are taken into consideration as to be in favour of the respondent, the law of limitation bars the respondent from seeking enforcement of specific performance of contract of the impugned agreement for sale which is under challenge. ix) The Ld. Counsel has relied upon the following judgments a) AIR Online 2018 SC 955

b) Special Leave Petition (c) 13917 of 2009 c) Civil appeal no. 6075 of 2023 Banking upon the aforementioned facts and circumstances the Ld. Counsel has prayed for cancellation of the impugned agreement for sale.

16.

Per contra, Mr. Ajay Kumar Mondal, Ld. Counsel representing the respondent has submitted that:

i) Appellant has signed all the documents and there is no denial as regards to the signature on the same.

ii) The statement of account produced by the respondent/defendant reflects that the part consideration amount paid through two cheques amounting Rs. 5,00,000/- have been debited in favour of Ashok Dung Dung. iii) Thus there being no denial as to signature upon the documents and in addition there being proof of part consideration amount being debited from the account of the respondent in favour of the appellant Ashok Dung Dung, the respondent has proved he fact as regard to the impugned agreement for sale and the payment of the part consideration amount.

iv) He has further submitted that the respondent was always willing to enforce the remaining part of the contract and is ready and willing to enforce the same.

v) On behalf of the Respondent the following judgments have been cited.

a) AIR 2006 SC 40 b) AIR 1958 SC 512 Banking upon the aforementioned facts and circumstances the Ld. Counsel has prayed for passing an order directing specific performance of the impugned contract.

17.

From the facts narrated above it transpires that the Ld. Trial Court has neither passed the judgment in favour of the plaintiff / intending seller nor in favour of the defendant /intending purchaser.

18.

The Ld. Trial Court while dealing with the issue of fraud committed upon the plaintiff as has been alleged by the plaintiff has come to the finding that the allegation of fraud was alleged against Jayanta Bala so the said Jayanta Bala was a necessary party, but he has not been made a party. On this ground of non-joinder of necessary party the said suit has been adjudged to be bad. 19.

In addition to the above the Ld. Trial Court has taken into consideration in details as regards to the payment made by the intending purchaser/ defendant and has arrived at the conclusion that the impugned agreement for sale is not a product of fraud and misrepresentation.

Against the judgment passed by the Ld. Trial Court the plaintiff has not preferred any appeal, so it is fact that the decision of the Ld Trial Court in respect of the impugned agreement for sale is not

a product of fraud and misrepresentation and is binding and remains binding upon the plaintiff.

So the issue of commitment of fraud upon the appellant /plaintiff as regards to the impugned agreement for sale has reached finality.

This Court has to proceed keeping in mind that the said agreement for sale has not been obtained by committing fraud on the contrary the said agreement for sale is binding intra parties. 20.

Now this present second appeal lies on the fulcrum as to whether the prayer made by the respondent /defendant is barred under the provisions of the law of limitation or not and as to whether the said agreement for sale can be given effect to or not. 21.

In this regard Article 54 of the Limitation Act, 1963 is to be gone through. The said article lays as follows:

Time from which period begins to run 54.

For specific performance of a contract.

Description of suit Period of limitation Three years.

The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.

The said article lays down that for the purpose of specific performance of the contract, the intending purchaser has to come before the Court

within three years from the date fixed for the performance or, if no such date is fixed, when the intending purchaser has noticed that performance is refused.

22.

In this present case the said agreement for sale took place on 20.12.2010. In Clause 11 of the said agreement for sale it has been stated " That both the vendor and the vendee specifically agreed that the process for sale such as obtaining sale permission and registration of the deed should be done within three months from today"

So, three months was fixed for the process of sale, that eventually leads to 19th /20th March, 2011. It is apparent that Ashok Dung Dung the appellant/plaintiff received further consideration amount of Rs. 20,000/- on 24.03.2011, that is beyond three months which was specified in the said agreement for sale. Thus, the appellant/plaintiff has accepted part of the consideration amount beyond the specified period of three months. So, when there is an acceptance of part of the consideration amount on a date beyond three months specified in the agreement for sale then it can be held that the vendor/intending seller had waived the period for execution of the contract and in such circumstance time does not remain as the essence of the contract. In this context this Court refers to the judgment passed by the Hon'ble Apex Court in the case between Divyagnakumari Harisinh Parmar and Others Versus Union of India and Others reported in

2025 SCC OnLine SC 2064 in Paragraph 53 of the said judgment the following has been laid:

"53. The decision of this Court in Shri Lalchoo Mal (supra) directly addresses this point of waiver vis-à-vis public policy, while considering whether the tenant therein could claim the benefit of Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. The Court held that where a statute is enacted to protect public interest, the benefit or protection conferred thereby cannot ordinarily be waived by an individual, since the larger public purpose underlying the enactment would stand defeated. The relevant portions are extracted hereinbelow:

"6. The general principle is that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. ..." ...

23.

Article 54 also lays down that for specific performance of a contract three years can be taken into consideration from the time when the plaintiff has noticed that performance is refused. In this present case the respondent/defendant came to know about the denial of giving effect to the said agreement for sale by the appellant/plaintiff during the year 2018 and the counter claim has

been preferred during the year 2019 dated 29.08.2019 and prior to that a legal notice was sent to the appellant/plaintiff on 18.01.2018.

24.

From the aforementioned discussion it is apparent that the respondent/defendant is not barred under the provisions of the Limitation Act, 1963 praying for specific performance of the contract as the respondent /defendant has taken legal step within the period of limitation stating that he was and is ready and willing to perform his part as mentioned in the contract. 25.

Once there has been acceptance of further sum of money by the intending seller so the period of limitation extinguishes and there remains no bar to the specific performance of the contract. 26.

From the Exhibit-4 it transpires that the said legal notice was issued on 18.01.2018 to the appellant/ plaintiff and through the said notice it has been stated that recently the respondent/ defendant has come to know that the appellant /plaintiff is negotiating with others to sale the said plot of land and the respondent/defendant is ready and willing to complete his part performance and is ready and willing to pay the consideration amount. So the counter claim praying for specific performance of the contract by the respondent defendant filed on 29.08.2019 is in accordance with law.

27.

The judgment passed by the Hon'ble Apex court in the case between Urvashiben Vs. Krishnakant Manuprasad Trivedi and reported in AIR OnLine 2018 SC 955 has been relied upon by the

appellant. In the said case Article 54 of the Limitation Act, 1963 has been dealt in connection with Order VII Rule 11 of the Code of Civil Procedure, that is rejection of plaint. Therein the Hon'ble Judges of the Hon'ble Apex Court has stressed upon the point that there are two limbs under Article 54 of the said Limitation Act. One being three years from the date when it is fixed for performance and the other being the case where no time for performance was fixed and the court had to find the date on which the plaintiff had noticed that the performance was refused and on finding that date to see whether the suit was filed within three years thereof. Through the said judgment the Hon'ble Apex Court has laid down lucidly Article 54 of the Limitation Act which has been dealt with in this present lis also. The said judgment cited is not in favour of the appellant.

28.

The judgment relied upon by the appellant passed by the Hon'ble Apex court in Special Leave Petition (C) No. 13917 of 2009 in the case between Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana and Anr. has dealt with an issue which is not at all related in this present case. In the said case the issue of genuine and not genuine transactions have been dealt with. Transfer of right, title and interest through sale agreement/ general power of attorney / Will made to evade stamp duty has been the issue in the said case. In Paragraph-19 of the said judgment it has been categorically stated :

"We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions." ... So the said judgment relied upon by the appellant is of no help to the appellant.

29.

The judgment passed by the Hon'ble Apex Court in the Civil Appeal No. 6075 of 2023, in the case between Sabbir (Dead) through LRS Vs. Anjuman (since deceased) through LRS, therein there was a gap of five and a half years between the date of execution of the agreement of sale and the willingness to perform the obligation. In this present case the appellant himself has received a part of the consideration amount beyond the time specified for giving effect to the agreement for sale, that is three months from the date of execution of the agreement for sale. So the intending seller himself has not abided by the clause mentioned in the agreement for sale and by accepting further consideration amount he himself has violated the clause set out in the agreement for sale and thus limitation of three years from the date of expiry of the period fixed for giving effect to the agreement for sale does not come into play in the present appeal. The fact considered in the judgment referred is not similar to the one being considered herein so the judgment cited is not in favour of the appellant.

30.

From the aforementioned discussion this Court is of the view that the contending parties are to give effect to the said agreement for sale.

31.

Thus, this Court finds that no interference is required in respect of the impugned judgment.

32.

The agreement for sale dated 20.12.2010 between Ashok Dung Dung and P.K. Deepak Kumar be given effect to within three months from this date.

33.

The appeal being No. SA 1 of 2024 stands dismissed. 34.

Parties shall be entitled to act on the basis of the server copy of the judgment and order placed on the official website of the Court. 35.

Urgent certified photo copies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities. (Supratim Bhattacharya, J.)