Shri Biswajit Chatterjee v. Shri Sanjiv Kumar Mukherjee Alias Sanjib Kumar Mukerjee

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** SAT/6/2023 IA No.CAN/1/2023 Shri Biswajit Chatterjee Vs.

Shri Sajiv Kumar Mukherjee @ Sanjib Kumar Mukerjee Mr. KMB Jayapal ... for the appellant September 20, 2023 [SR] Item No.12 The concurrent finding of facts returned by the Court below is assailed in the instant appeal filed under section 100 of the Code of Civil Procedure.

The facts as unfurled from the respective judgment delivered in the instant matter indicate that an agreement for sale was entered into between the parties in the instant proceeding on 24.03.2007 for purchase of the property described in the schedule appended thereto.

The plaintiff/appellant filed a suit for a specific performance of the said agreement, which was registered as Other Suit No.5 of 2011. According to the plaintiff/appellant, they were all along ready and willing to perform their part of an obligation under the said agreement and the vendor/respondents have failed to perform their part of the obligation.

The plaint further proceeds that in pursuance of the said agreement for sale, the possession of the schedule premises was handed over to the plaintiff/appellant and, therefore, such possession being protected under the law cannot be disturbed. The vendor/defendant contested the said suit taking a plea that the plaintiff/appellant was not ready and willing to perform his part of the obligation under the said agreement as there has been a complete default in committing the promise reflected in the said agreement.

However, the defendant/respondent accepted the contention of the plaintiff that the possession was handed over in pursuance of the said agreement and since the agreement

has fallen through he is entitled to recover the possession therefor and for such relief a counter claim was filed along with the written statement.

The Trial Court dismissed the suit filed by the appellant and allowed the counter claim. It appears that only one appeal was filed against the dismissal of the suit and allowing the counter claim. Though the defendant/respondent has not taken a plea that the single appeal is not maintainable but we feel that we must indicate the position of law in this regard. Order 8 Rule 6A of the Code of Civil Procedure incorporated subsequently by an amendment in the year 1976 recognizes the additional right of the defendant to make a counter claim despite the existence of a right to set off. Sub-rule 2 of Rule 6A of Order 8 postulates that such counter claim shall have the same effect as a cross suit so as to enable the Court to pronounce a final judgment in the same suit both on the original claim and the counter claim.

The intention of the legislature is clear to the sense that the plaintiff was give a right to file a written statement to the counter claim for the simple reason that the said counter claim has a trapping of the cross suit.

Sub-rule 4 of Rule 6A of the Order 8 of CPC indicates that the counter claim shall be treated as a plaint and governed by the rules applicable to the plaint.

The only restriction which was put, as would be evident from the sub-rule 1 thereof that any right or claim made through a counter claim must be in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defense or time limited for filing the defense has expired and such counter claim should not exceed pecuniary limit of the jurisdiction of the Court. It is thus manifest from the aforesaid provision that the counter claim has a flavour of a plaint and is governed by the rules applicable to the plaint and not by the rules applicable to the written statement.

Rule 6D of Order 8 of CPC can also be seen in this regard which envisage that even when the suit is stayed, discontinued or dismissed, the counter claim may nevertheless be proceed with obviously for the reason that the said counter claim has a trapping of a plaint and, therefore, the discontinuous or dismissal of the suit in which the said counter claim is filed shall not defeat or automatically render the said counter claim ineffective.

Rule 6E of Order 8 of CPC can also be seen in this regard providing that in the event the plaintiff makes a default in

putting a reply to a counter claim by filing the written statement, the court may pronounce the judgment against the plaintiff in relation to the counter claim.

Rule 6G of Order 8 of CPC further provides that the written statement to the counter claim shall be governed by the rules applicable to the written statement though the same is filed by the plaintiff.

The conjoint reading of the aforesaid provision leaves no ambiguity in the mind that the counter claim is in the nature of the cross suit and the Rules applicable to the plaint has been extended to the said counter claim. It further envisages that the written statement filed by the plaintiff to the counter claim in his suit shall be governed by the Rules applicable to the written statement and therefore, it is treated as a cross suit and, the judgment is required to be delivered by the Court over to the counter claim.

The aforesaid notion will get further impetus to the fact that discontinuous or dismissal of the suit in which the counter claim is filed shall not ipso facto render the discontinuous or dismissal of the counter claim as it is in the nature of a cross suit and having a trapping of a plaint and therefore the court is required to proceed with the determination of the issues raised in the counter claim irrespective of the fact that the suit filed by the plaintiff is discontinued or dismissed.

Order 14 rule 1 of the CPC can also be pressed in the service in this regard which makes it imperative to frame an issue inviting the parties to the evidence and to deliver a judgment thereupon.

The language employed under Order 14 Rule 1 of the Code leads to an inexplicable conclusion that the issue arises when a material proposition of fact or law is affirmed by one and denied by other. Since the counter claim has trapping of plaint and the plaintiff in his suit is required to file written statement to deal with the statement of facts as well as law in the counter claim, it is obligatory on the part of the court to frame an issue in relation to a counter claim together with the issues in relation to a main proceedings.

The Order 14 Rule 2 cast duty upon the Court to pronounce judgment on all issues except to the extent of an exception carved out therein.

It is, thus, obligatory on the part of the court to pronounce judgment on the issues framed in relation to a main

suit and also the issues framed in relation to a counter claim and since the counter claim has the trapping of plaint, as a cross suit, a decree is required to be drawn up upon pronouncement of the judgment in terms of the Order 20 Rule 6 of the Code of Civil Procedure.

In the instant case, the matter can be viewed from another angle as well. By virtue of a counter claim, the defendant/respondent prayed for recovery of possession of an immovable property and, therefore, in view of the Order 20 Rule 9 of the Civil Procedure Code upon pronouncement of the judgment along with the counter claim, the decree must contain a specific description of the property sufficient to identify the same, if possible, with the boundaries or by the numbers. In such view of the matter, when two separate decrees are passed in a suit, section 96 of the Civil Procedure Code has to be understood in such perspective providing a right of an appeal from every decree passed by any court exercising original jurisdiction.

The expression "every decree" has to be understood to mean a decree passed in a competent proceeding by a court of original jurisdiction and in view of the fact that a decree for counter claim is also required to be prepared on the basis of the judgment pronounced by the court on the issues raised therein, the right to appeal against the said decree allowing the counter claim has to be understood in such manner. Any other interpretation to the aforesaid expression "every decree" would lead to an absurdity and the purpose of using the word "every" before the decree shall be rendered meaningless.

The legislature does not make any distinction between the two decrees passed in a one suit, or a single decree passed in a suit while the using the expression "every decree" followed by the sentence "any Court exercising the original jurisdiction". In view of the above, a single appeal against the decree passed in a counter claim, is not competent and may at times, be treated to have been filed against either of the decree which may invite a further anomalous situation and may at times impair the appellant to sustain the said appeal on the legal parameters.

Reverting to the core issues, two points are raised before us by Mr. Jayapal, learned advocate appearing for the appellant.

Firstly, both the Courts below have misinterpreted and misconstrued the relevant terms and conditions embodied in the said unregistered agreement for sale which mandates the obligation of the defendant/respondent to be discharged first before the plaintiff/appellant proceeds to discharge his part of an obligation; secondly, the relief for recovery of possession

through a counter claim is not tenable in view of section 49 of the Registration Act read with Section 53 (A) of the Transfer of Property Act.

There is no hesitation in our mind that interpretation of a document in a manner, which is contrary to the intention of the parties, is a substantial question of law and the Court may admit the appeal under section 100 of the Code of Civil Procedure.

In the instant case, the unregistered agreement for sale entered into on 24th March, 2007 contained the respective and/or reciprocal obligation of the parties thereto. In order to ascertain the intention of the parties, the first and foremost recourse is to read the agreement as a whole and not in a piecemeal; more particularly, when it contains respective obligation or the reciprocal obligation of the parties thereto. The terms and conditions would reveal that the plaintiff/appellant agreed to liquidate the entire loan amount standing in the name of the defendant/respondent with the United Bank of India as a consideration for sale of the said immovable property.

All the preceding terms and conditions are the evident of the fact that the plaintiff/appellant has taken of the responsibility of liquidating the loan amount of the defendant/respondent together with the interest, if there be any accrued thereupon, by paying to the Bank. However, the only point which has been raised by the plaintiff/appellant is that one of the terms and conditions creates an obligation on the defendant/respondent to pay an amount of Rs.3.00 lakhs either to his loan account or to the purchaser as per preference of the purchaser being part of the loan amount which would obviously be treated as the integral part of the total consideration amount agreed by the parties.

Mr. Japayal vociferously submits that the expression "as per preference" has to be read in perspective of the first obligations created upon the defendant/respondent and upon discharge of the same, the obligations created upon the plaintiff/appellant shall be discharged.

Before we proceed to interpret the aforesaid clause, it would be profitable to Court the same in verbatim which runs thus.

"That the vendor agreed to pay Rs.3.00 lakhs either to his loan account or to the purchaser as per preference of the purchaser, which is a part from the loan amount. As such, total loan amount along with Rs.3.00 lakhs (Rupees three lakhs only) is the total consideration of the scheduled property."

The meaningful reading of the above quoted clause leads no ambiguity that the expression "as per preference of the purchaser" does not create a first obligation to be performed by the defendant/respondent before the other obligation of the plaintiff/appellant is duly performed.

The language does not suggest that unless the said amount of Rs.3.00 lakhs is paid, either in his loan account or to the purchaser, the obligation of the purchaser i.e. the plaintiff/appellant shall not reckon. The intention of the parties as it would gather from the language used therein that the defendant/respondent has agreed to pay a sum of Rs.3.00 lakhs which would be treated as a part of the total consideration and the preference as used therein at the behest of the purchaser is the mode of the aforesaid payment unrelated and unconnected with the prior obligation or the first obligation.

It is a plain and simple language which is used in the above quoted clause that in the event the purchaser i.e. the appellant herein intended that the said amount to be paid in the loan account or to him, such preference shall be honoured by the defendant/respondent without raising any demur in this regard.

We thus do not find the stand of the appellant that unless the said amount of Rs.3.00 lakhs is not paid or deposited in the loan account, the appellant is not obliged to liquidate the loan in terms of the preceding clauses.

So far as the second point is concerned, admittedly the agreement for sale is an unregistered document and the possession of the suit property has been given in part performance thereof. The said agreement was entered into on 24.03.2007. Section 53A of the Transfer of Property Act has undergone sea-change by way of amendment having brought in the year 2001.

The amended provision as is stand now indicates that where any person contracts to transfer the immovable property for consideration, by writing signed by him or in his behalf, has parted with the possession of the property in part performance of the said contract with the intending purchaser then notwithstanding that the transfer has not been completed in the manner provide therefor by law, the transferor or any person claiming under himself shall be debarred from enforcing against the transferee or a person claiming under him any right in respect of a property of which transferee has taken or continued in possession other than the right expressly provided by the terms of the contract.

It is, therefore, evident from the aforesaid provision that a transferee obtaining a possession in part performance of an agreement for sale of the immovable property, acquires the protected right which can be used as a shield and not as a sword.

Corresponding to such amendment having made in Section 53A of the Transfer of Property Act, sub-section 1A of the Section 17 of the Registration Act has also been amended. The aforesaid sub-section was incorporated creating an embargo in protecting the possession obtained in part performance of an agreement for sale if the said agreement is unregistered though compulsory registerable under section 17 of the said Act. The said sub-section provides thus "17.

Direction for accumulation - (1) Where the terms of a transfer of property direct that the income arising from the property shall be accumulated either wholly or in part during a period longer than - (a) the life of the transferor, or (b) a period of eighteen years from the date of the transfer, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the longer of the aforesaid periods, and at the end of such last-mentioned period the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed."

The aforesaid subsection subsequently inserted by way of amendment Act postulates that if the possession is taken in part performance of an agreement for sale which is unregistered, the said document shall not be treated to have created a protected umbrella in relation to the possession for the purpose of section 53A of the Transfer of Property Act. The cumulative effect of the reading of section 53A of the Transfer of Property Act and Section 17 1A of the Registration Act, any possession taken by transferee in part of the performance of an agreement for sale which is unregistered, is not protected nor can be used as shield far to speak of sword in judicial proceeding.

Both the points fail as we do not find the involvement of substantial questions of law.

The appeal is thus dismissed under order 41 Rule 11 of the Code of Civil Procedure.

Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.

( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )