Specific Performance of Contract
Since there was no affidavit made by Narayan Chandra in the deed. S.A. khatian has wrongly been recorded in the names of defendant Nos. 2-9. Tak- ing advantage of wrong recording in the record of right in order to grab the suit land. Rabeya Khatun vs Sheikh Ashraful Islam and others (Mohammad Fazlul Karim J) (Civil) 7 ADC 815
Specific performance of contract
Defendant No.2 earlier contracted to sell his one third share in the suit land for a consideration of Tk.3000/- on 05.06.1972 and executed an unregis- tered bainapatra (Exhibit-A) in favour of defendant Nos.5 and 6 on receipt of Tk.200/- and subsequently, defendant Nos.5 and 6 paid Tk.800/- to defendant No.2 on 19.05.1973. The trial Court also found that defendant Nos.4 to 6 could not prove the unregistered baina- patra by oral evidence and they could not prove any of their documents by oral evidence. The appellate Court came to a finding that the plaintiff consistently stated the manner of execu- tion, passing of consideration money and that defendant No.3 took Tk.8000/- from the plaintiff and went away to keep the money at his house and did not return. The appellate Court concurred with the finding of the trial Court that the plaintiff was able to prove the purchase of the suit land as well as possession therein.........(9) Came to a finding that defendant Nos. 1-3 proposed to sell the suit land to the plaintiff, who agreed to purchase the same and that the price was settled at Tk. 11,000/- in presence of the wit- nesses. The High Court Division hav- ing assessed the evidence of plaintiff's witness Nos.2 and 3 found that a sum of Tk.8000/- was paid to defendant Nos. 1 to 3 and that possession of the property was handed over to the plain- tiff the same day. The High Court Divi- sion also concurred with the findings arrived at by the trial Court as well as the appellate Court. Md. Abul Hossain vs. Ibrahim Ali (Syed Mahmud Hossain J) (Civil) 10 ADO 728
For specific performance of contract. suit land belonged to the defendant, who purchased the said land by a ka- bala deed, He entered into a contract, of the said land with the plaintiff at a consideration of Tk:14,000/- out of which the defendant received Tk. 10,000/- towards the earnest money. It was stipulated in the agree- ment that the defendant would receive the balance consideration within nine months and thereafter he would exe- cute and register the sale deed. Ultimately the defendant refused to perform his part of obligation. Fazar Ali vs. Mizanur Rahman (S.K. Sinha J) (Civil) 7 ADC 518
Petitioner as plaintiff instituted a suit for specific performance of contract against the respondent which was de- creed on contest. Against that a Title Appeal was preferred by the opposite party the learned appellate court al- lowed the appeal by judgment and de- cree. Md. Ahia vs. Md. Azimuddin and others (Md. Abdul Matin J) (Civil) 7 ADC 600
For specific performance of contract, the High Court Division erred in law in remanding the suit to the lower appel- late Court in order to enable the respondent to file an application for partition, if any, and dispose of the same in accordance with law, being outside the scope of suit for partition, which would change the nature and character of the suit......(5)
Prayer for declaring the decree dated 19.08.1990 passed in Other Class Suit No.81 of 1982 in respect of property is void, illegal, collusive and not binding upon the plaintiffs and such prayer comes under Sections 39 and 42 of the Specific Relief Act, and since the de- fendant claimed possession over the property so the suit is barred by Sec- tion 42 of the Specific Relief Act, that the decree of the defendants has clouded the title of the plaintiffs over the suit proper but to remove the cloud no prayer has been made for declara- tion of the title of the plaintiffs over the suit property; that the defendants challenged the possession of the plaintiffs so without a regular suit for declaration of title and recovery/confirmation of possession in the disputed land the plaintiffs cannot challenge the legality of the decree of the defendants, Dr. Md. Kamrul Ahsan Talukder vs. Nurun Nahar (Mohammad Fazlul Karim J) (Civil) 7 ADC 794
Decree for specific performance of
contract for sale of land.
Findings of criminal court, cannot be
considered by the Civil courts save and except the factum of conviction and sentence.
Abdul Mannan vs Tayeb Ali ors. (Md. Ruhul Amin J)(Civil) 3ADC 326
Defendant agreed to the plaintiff's
proposal and asked it to.
The plaintiff could not take delivery
of the contracted goods owing to this unreasonable and adamant attitude of the
defendant who forfeited the earnest money paid by the plaintiff and invited a
fresh tender adding further conditions. National Bank Ltd. vs Pragati
Industries Ltd. (Amirul Kabir Choudhury J)(Civil) 3ADC 743
Section 12
Specific performance of contract– Balance sale price– Specific performance of contract is an equitable relief. The fraudulent action of the plaintiffs in issuing a cheque for the balance consideration, with the knowledge that the funds in the account were not sufficient to honour the cheque and with the admitted intention not to put in funds to cover the cheque amount until after execution of the sale deed, is admission of fraud since the requirement of law is that demand for the execution of the sale deed must be accompanied by payment of the balance sale price. This act of fraud disqualifies the plaintiffs from getting the relief sought. ...Ambia Khatun(Most.) =VS= Sree Shuklal Turaha, (Civil), 2021(2) [11 LM (AD) 512]
Explanation-Breach of contract-Compensation-The explanation to section 12 of the Specific Relief Act raised a presumption that the breach of a contract to transfer movable property can be adequately relived by compensation unless and until the contrary is proved. [Bazlur Rahman Bhitiyan Vs. BSC 34 DLR (AD) 42]
Presumption under the section-Presumption under the section is that breach of contract for sale of immoveable property cannot be adequately compensated by money payment. This presumption is rebuttable and onus lies on the person who seeks to avoid it. Saru Meah Sowdagar Vs. Jahanara Begum 8 DLR 616)
Onus of proof is on the transferee who purchases while there is a subsisting contract between the vendor and the plaintiff to prove bonafide purchase. Saru Meah Sowdagar Vs. Jahanara Begum 8 DLR 616
Where the suit is brought within three years of the contract, the court is competent to award a decree for specific performance of the contract directing the legal representatives of the original vendor to execute a kabala in accordance with the terms of the original kabala and have the same registered. Hafer Ahmed Vs. Obedur Rahman 7 DLR 263
Specific Relief Act [I of 1877]
Section 12—Whether the bainapatra dated 16.01.2003 is a valid document and whether the document can be a contract to sale and whether a suit for Specific Performance of Contract can be filed.
The High Court Division has carefully examined the document submitted by the parties in the courts below which has been exhibited and the High Court Division found that the plaintiff has proved that there was a bainapatra given by the defendant in order to sale the suit land mentioned above after receiving a certain amount of money of the total consideration money. The learned Advocate for the petitioner submits that a forceful signature is a criminal offence and such signature does not create any contractual obligation but he informed to the High Court Division that the possession of the suit land was handed over to the plaintiff after amendment of the baina on 16.01.2003. Under the provision of Section 53A of the Transfer of the Property Act the present-plaintiff-opposite party can get a right and interest upon the suit land by operation of law, as such, the present-defendant-petitioner is under an obligation to execute a sale deed in favour of the plaintiff-opposite party after receiving remaining Taka 15,000/- (fifteen thousand) only pursuant to the baina dated 16.01.2003. After considering the evidence produced by the parties, the learned trial court decreed the suit and the appellate court dismissed the appeal by the impugned judgment and decree and thereby committed no error of law by passing the concurrent judgment. The High Court Division is therefore, not inclined to interfere into the impugned judgment and decree passed by the learned appellate court. In the result, the Rule is discharged. Md. Sohrab -Vs- Dr. A.K. Azad (Civil) 15 ALR (HCD) 184-186
সুনির্দিষ্ট প্রতিকার আইন, ১৮৭৭
ধারা ১২, ২১ক এবং ৪২: চুক্তির সুনির্দিষ্ট কার্য সম্পাদন ঘোষণা হিসাবে কোনো অবস্থাতেই বিবৃত ঘোষণাকে গণ্য করা কিংবা ব্যাখ্যা করা যায় না, কারণ এই ঘোষণা সুস্পষ্টভাবে সুনির্দিষ্ট প্রতিকার আইনের ৪২ ধারার বিধানাবলী আকর্ষণ করে। প্রথম ঘোষণাটির ব্যাপারে কিছুটা বিতর্কের অবকাশ রয়েছে, অর্থাৎ এটি সরাসরি সুনির্দিষ্ট প্রতিকার আইনের ১২ ধারাভুক্ত চুক্তির সুনির্দিষ্ট কার্য সম্পাদনের মামলার আওতাভুক্ত কিনা, নাকি ৪২ ধারার অসুবিধা আকর্ষণ করে, তা নিরূপণ করা যায় না। এই বিতর্কের নিষ্পত্তি কেবলমাত্র মামলার পূর্ণ শুনানির মাধ্যমে এবং বিচার চলাকালে পক্ষগণ কর্তৃক উপস্থাপিত প্রমাণের যথাযথ মূল্যায়নের মাধ্যমেই সম্ভব।
... কমপ্রিহেনসিভ হোল্ডিংস লিমিটেড বনাম এম.এইচ. খান মঞ্জু, [৩ এলএম (এডি) ১৯৮]
Sections 12–– Specific performance of contract– An alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document–– It is settled principle of law that giving a decree for specific performance is a matter of discretion of the Court. In exercising its discretionary power, the Court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief according to the case presented. In this case, there was no agreement for sale. In fact, the plaintiff came to the Court to enforce the terms and conditions of an alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document. In view of such facts and circumstances, the plaintiff is not entitled to get any relief. The appeal is dismissed. ...Kazi Fazlus Sobhan =VS= Government of Bangladesh, [6 LM (AD) 143]
১২ – চুক্তির নির্দিষ্ট কার্যক্রম সম্পাদন – অভিযোগকৃত অনিবন্ধিত অংশীদারিত্ব বিলুপ্তির দলিল, যা এখনও প্রকৃত দলিল হিসেবে প্রমাণিত হয়নি, সেই দলিলের মাধ্যমে তাদের অংশীদারিত্ব বিলুপ্ত করার জন্য আদালতের রায় কামনা করা হয়েছে। আইনের সুপ্রতিষ্ঠিত নীতি হলো, চুক্তির নির্দিষ্ট কার্যক্রম সম্পাদনের আদেশ দেওয়া আদালতের বিবেচনার বিষয়। এই বিবেচনামূলক ক্ষমতা প্রয়োগের ক্ষেত্রে আদালত সাধারণ ক্ষমতা প্রয়োগের চেয়ে অধিক স্বাধীনতা অবলম্বন করবে এবং উপস্থাপিত মামলার বিবরণ অনুযায়ী প্রতিকার মঞ্জুর করবে বা অস্বীকার করবে। এই মামলায়, বিক্রয়ের কোনো চুক্তি ছিল না। প্রকৃতপক্ষে, বাদী আদালতে এসেছে একটি অভিযোগকৃত অনিবন্ধিত অংশীদারিত্ব বিলুপ্তির দলিলের শর্তাবলী জোরদার করার জন্য, যা এখনও প্রকৃত দলিল হিসেবে প্রমাণিত হয়নি। এই সকল তথ্য ও পরিস্থিতি বিবেচনা করে, বাদী কোনো প্রতিকার পাওয়ার অধিকারী নয়। আপিল খারিজ করা হল।
... কাজী ফজলুস সোবহান =বনাম= বাংলাদেশ সরকার, [৬ এলএম (এডি) ১৪৩]
Section 12–– Specific performance of contract–– The High Court Division noted that subsequent payments of the consideration money were not proved in accordance with law. However, we find that this issue was not raised by D.W.1 in his evidence and payment of further sums was endorsed on the back of the deed of agreement for sale. Also, as noted above, this point was specifically dealt with by the trial Court and the appellate Court with reference to evidence. The observation of the High Court Division in this regard is patently contrary to the evidence on record.
It clearly appears that the High Court Division erred in not properly assessing the evidence and materials on record, and has erroneously reversed the concurrent findings of the Courts of fact. The appeal is allowed, without however, any order as to costs. The judgement and order of the High Court Division is hereby set aside. ...Serajul Islam =VS= Farookh Sobhan, [10 LM (AD) 96]
ধারা ১২ –– চুক্তির নির্দিষ্ট কার্যক্রম সম্পাদন –– হাইকোর্ট ডিভিশন উল্লেখ করেছেন যে পরবর্তী বিনিময় মূল্যের অর্থ প্রদান আইনসম্মতভাবে প্রমাণিত হয়নি। তবে, আমরা পর্যবেক্ষণ করছি যে এই বিষয়টি ডি.ডাব্লিউ.১ তার সাক্ষ্যে উত্থাপন করেননি এবং বিক্রয় চুক্তি দলিলের পেছনে আরও অর্থ প্রদানের অনুমোদন লিপিবদ্ধ রয়েছে। এছাড়াও, উল্লেখ্য যে, উপরে উল্লিখিত বিষয়টি বিচারিক আদালত এবং আপিল আদালত প্রমাণের সহায়তায় বিশেষভাবে বিবেচনা করেছেন। হাইকোর্ট ডিভিশনের এই বিষয়ে পর্যবেক্ষণ রেকর্ডভুক্ত প্রমাণের স্পষ্টতই বিরোধী।
উপরে উল্লিখিত কারণে, হাইকোর্ট ডিভিশন রেকর্ডভুক্ত প্রমাণ ও উপকরণ সঠিকভাবে মূল্যায়ন না করায় এবং বিচারিক ও আপীল আদালতের সহকরণী ফলাফল ভুলভাবে উল্টে দিয়েছে বলে সাব্যস্ত হয়েছে। আপিল মঞ্জুর করা হল, তবে, খরচ সম্পর্কে কোনো আদেশ দেওয়া হয়নি। হাইকোর্ট ডিভিশনের রায় ও আদেশ এতদ্বারা বাতিল করা হল। ...সেরাজুল ইসলাম =বনাম= ফারুক সোবহান, [১০ এলএম (এডি) ৯৬]
Section 12–– Specific performance of contract–– The appellate Court held that ‘the Salishnama does not contain any resolution,’ appears to have been due to totally ignoring the second page of the Salishnama. The petitioner has not annexed the second page of the Salishnama in the paper book before us. But we are prepared to accept the contents of the second page of the salishnama, as reproduced by the High Court Division in the impugned judgement. Thus, the judgement of the appellate Court apparently suffers from misreading of evidence. The High Court Division has correctly appreciated the evidence and materials on record and rightly reversed the judgement and decree of the appellate Court. This civil petition for leave to appeal is dismissed. ...Abdus Salam(Md.) =VS= Lutfun Nahar, [10 LM (AD) 281]
Sections 12–– Specific performance of contract and compensation–– It is admitted fact that the defendant No.1 had received taka 25,00,000/- from the plaintiffs. Considering the facts of unconscionable and unreasonable bargain of the plaintiffs, nature of agreement and alternative prayer made by the plaintiffs, we are of the view that justice would be best met if it is directed to the defendant No.1 to return the earnest money, that is, a sum of tk. 25,00,000/- which was received from the plaintiff No.1 and the solatium of tk.25,00,000/- since the aforesaid amount was received by the defendant No.1 in 2009, that is, said amount is lying with him for about 9 years.
The judgment and decrees of the High Court Division as well as these of the trial Court are set aside. Defendant No.1 petitioner in C.P. No.2050 of 2017 and respondent No.1 in C.P.No.2319 of 2017 is directed to pay sum of tk.50,00,000/- (25,00,000/- consideration + 25,00,000/- as solatium) to the plaintiffs within 4(four) months from the date of communication of this judgment and order to the trial Court, in default, the judgment and order of the High Court Division shall stand. …Kazi Rafiqul Islam =VS= Anwar Hossain Advocate(Md.), [7 LM (AD) 229]
Section 12–– Specific performance of contract–– A suit for specific performance of contract the duty of the Court is to see whether or not there was an agreement for sale and if there was any breach of such agreement, then to order or reject specific performance of contract. ...Nayeb Ali(Md.) =VS= Abdus Salam Khan(Md.), [9 LM (AD) 1]
Section 12–– Specific performance of contract– Giving a decree for specific performance is a matter of discretion of the Court–– It is settled principle of law that giving a decree for specific performance is a matter of discretion of the Court. In exercising its discretionary power, the Court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief according to the case presented. In this case, there was no agreement for sale. In fact, the plaintiff came to the Court to enforce the terms and conditions of an alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document. In view of such facts and circumstances, the plaintiff is not entitled to get any relief. …Kazi Fazlus Sobhan =VS= Government of Bangladesh, [7 LM (AD) 113]
Section 12–– The plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds–– A relief for specific performance being discretionary, the court is not bound to pass a decree even if the plaintiff proves the execution of the agreement for sale and payment of consideration unless and until the plaintiff comes in court with clean hands. Therefore, the plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds. .....RAJUK =VS=Manzur Ahmed & Others, [1 LM (AD) 1]
Section 12–– Specific performance of contract–– As regards, the argument of the learned Attorney General that the plaintiff had no cause of action to file the suit, we are of the view that since the original lessee entered into an agreement with the plaintiff to sell the suit property and in part performance of the contract, he was put into the possession of the suit property and admittedly he is in possession thereof and he paid good amount of money being taka 15,90,000.00 in 1978 and after the death of Syed Salamat Ali, his heirs did not execute and register the sale deed, he had every right to file the suit to pray for specific performance of contract. .....Bangladesh =VS= Hamid Ali Chowdhury, [3 LM (AD) 97]
Contract Act(IX of 1872)
Specific Relief Act (I of 1877)
Chapter 11
Sections 2, 10 and 12.
Contract coming under these sections are specifically enforceable. A breach of the contract cannot always be adequately compensated by money. From a combined reading of section 2 of the Contract Act read with the paragraphs of the preambles and the terms of 3(three) agreements, it is abundantly clear that defendant No.3 entered into an agreement with defendant Nos.1 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 'Heritage'. It is admitted that the flat in question fell to the share of the developer. So, defendant No. 2 did not commit any of illegality in entering into a contract with the plaintiff for sale of the suit flat. Section 10 of the Contract Act also comes in aid of the plaintiff. From the facts and circumstances of the case and the materials on record, it is evident 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. Therefore, the plea of defendant Nos. 4 and 5 that the predecessor of defendant No. 3 not being a signatory to the triparthe agreement, cannot be a enforced against them, is not legally sustainable.
Md. Atif Atiq -Vs- Nurun Nahar Begum 2 ALR (2013)(AD) 130
Limitation Act,1908 (IX of 1908)
Article 113 - The limitation prescribed for a suit for specific performance of contract, under Article 113 of the Limitation Act, is one year or if no such date is fixed, when the plaintiff has notice that performance is refused from where the cause of action accrues. Khan Mohammad Ameer -Vs.- AtiqurRahman 5 ALR (HCD)2015(1) 307
Limitation Act,1908 (IX of 1908)
Article 113
It is the settled principle of law that the cause of action for a suit for specific performance of a contract arises when the executant of agreement for sale refuses to act in accordance with the terms of the said agreement. The period of limitation for suit for specific performance of a contract is three years from the date of refusal. Haji Sheikh Ahmed Sowdagar -Vs.- Ahmed Nur 3 ALR(2014)(1) 453
President's Order No. 142 of 1972
Without impleading the Government no suit for specific performance of contract or declaration of title in the suit property is permissible. Jamuna Builders Limited -Vs.- The State 2 ALR (2013)(HCD) 167
The Specific Relief Act, 1963
Section 16(c) r/w
The Limitation Act, 1963
Article 54
Specific performance of agreement of sale– The High Court has wrongly observed that the plaintiff has not produced any evidence to prove that he demanded the performance of sale after the execution of the agreement of sale. The filing of a suit for specific performance of an agreement of sale is governed by Section 16(c) of the Specific Relief Act, 1963, read with Article 54 of the Schedule of the Limitation Act, 1963.
The plaintiff has specifically averred in his plaint that he was ready and willing to perform his part of the contract under the agreement of sale dated 20.04.1993. It was also specifically stated that the plaintiff had been demanding that the first defendant receive the balance consideration of Rs. 58,800/and execute a regular registered sale deed at his cost, but the first defendant had been avoiding the specific performance of the agreement of sale. In light of this, in our considered opinion, all the formalities which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled. Moreover, there cannot be any proof of oral demand. Be that as it may, we are satisfied from the evidence that the plaintiff had sufficient money to pay the balance consideration to the first defendant and was ready and willing to perform his part of the contract. In view of reasons, the impugned judgment of the High Court is liable to be set aside. Accordingly, the judgment and decree passed by the Trial Court stands restored. The appeals are allowed accordingly. .....Chennadi Jalapathi Reddy =VS= Baddam Pratapa Reddy, (Civil), 2022(1) [12 LM (SC) 28]
Registration Act,1908 (XIV of 1908)
Section 21A -Specific Performance of Contract.
The suit is filed without depositing the balance amount of consideration of the contract in the Court. Provision of section 21A is merely directory and not mandatory since there is no legal mandate to stop or dismiss the suit if balance amount of consideration of the contract is not deposited in the Court at the time of filing of the suit for Specific Performance of Contract. So, no difficulty in holding that, if a litigant for any reason after taking permission from the Court filed the suit and later on he made the deposit of the balance amount of consideration of the contract in the Court as per order of the Court, in such case it cannot be said that the suit is barred by section 21A of the Specific Performance of Contract. Md. Darul Islam -Vs.- Md. Tamijul Islam 5 ALR (HCD)2015(1) 346
Specific Relief Act (I of 1877)
Addition of a party
In a suit for specific performance of contract for sale of an immovable property the real question for determination is whether there was a genuine agreement between the contending parties and if the plaintiff is entitled to get a decree in the suit. When a third party applicant setup an independent claim of title to the suit property, he cannot be added as a party for the determination of his claim will turn the suit for specific performance of a contract into a title suit. The determination of title in the suit property is beyond the scope of a suit for specific performance of a contract. Ibrahim Khalil -Vs.- Mujibir Rahman 2 ALR (2013)(AD) 28
A relief for specific performance being discretionary, the court is not bound to pass a decree even if the plaintiff proves the execution of the agreement for sale and payment of consideration unless and until the plaintiff comes in court with clean hands. The plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds— The Appellate Division observed that a relief for specific performance being discretio-nary, the court is not bound to pass a decree even if the plaintiff proves the execu-tion of the agreement for sale and payment of consideration unless and until the plain-tiff comes in court with clean hands. Since from the very execution of the power of attorney is doubtful, and from the admis-sion of the plaintiff that the defendant died at least at the initial stage of the suit, and if this admission is taken into consideration with the documents filed by the govern-ment, there is no doubt that Mrs. Inge Flatz died long before the execution of the agreement for sale. Therefore, the plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds. The High Court Division erred, therefore, in decreeing the suit for specific performance.
Chairman, Rajdhani Unnayan Karti-pakkha (RAJUK), Dhaka -Vs.- Manzur Ahmed @ Manzoor Ahmed and others (Civil) 8 ALR (AD) 1-21
If a specific remedy is provided in the Constitution for remedy then that specific remedy shall be availed of by the aggrieved person—The Appellate Division observed that since the service Rules do not provide any provision of promotion as Assistant Foreman from the driver who has been working as work charged employee, rather the Rules provides that the post of Assistant Foreman should be filled up by way of promotion from Mechanics/ Electrician having 5 years service experience in the feeder post, the High Court Division has committed error of law in making the Rule absolute.
The Secretary, Ministry of Communication and others. -Vs.- Md. Iqbal Hossain (Civil) 8 ALR (AD) 186-191
Without rebutting trial Court’s those findings and decision; adverting evidence reversed the judgment and decree of the trial court by appellate court as a whole; which is an apparent illegality on the face of the records—The High Court Division held that the order-sheets as cited by the learned courts below is very much material and important in a suit for specific performance of contract and it has also been properly addressed and apprised by the learned trial court, but the learned appellate court has totally failed to appreciate that, rather; without rebutting those findings and decision; adverting evidence reversed the judgment and decree of the trial court as a whole; which is an apparent illegality on the face of the records.
Md. Abul Kalam Azad -Vs- Md. Majibur Rahman and others (Civil) 12 ALR (HCD) 375-383
Abandoned Buildings (Supplementary Provisions) Ordinance [LIV of 1985]
Section 5—In a suit for specific performance of contract the only issue to be decided whether the contract was genuine or not and as such, though the Government is made a party to a suit for specific performance of contract as a requirement of law it is not bound by the decree.
The Appellate Division held that not only the suit for specific performance of contract was decreed but also the disputed property was declared to be not an abandoned property. Such a declaration in a suit for specific performance of contract is beyond the scope of the suit and such declaration has no legal value at all. For argument sake even if the decree was obtained legally the Government is not bound by the decree passed in a suit for specific performance of contract. Government of Ban¬gladesh, represented by the Secretary, Ministry of Works. -Vs.- Abdul Man¬nan and oth¬ers. (Civil) 16 ALR (AD) 98-103
Section 12 - The basic ingredient of the deed of agreement.
The High Court Division helds that in a suit for Specific Performance of Contract the onus of proof is on the transferee who purchase, and where there is a subsisting contract between the vendor and vendee, the plaintiff is to prove his bonafide purchase and after proof the land is vested in the purchaser; who is entitled to obtain a decree for Specific Performance of Contract and thereby the vendee become the owner of the land. The pertinent question is as to whether the contract was eventually made between the parties and there was any part payment of consideration and thirdly, whether possession was delivered in favour of the purchaser of the land. The basic ingredients of the deed of agreement which are on the genuinity of the deed, payment of consideration money between the parties and delivery of possession are required to be judged before arrival at a decision and it is the incumbent duty upon the court to assess and address the ingredients as mentioned.[চুক্তির মৌলিক উপাদানগুলোর কারণে আসল দলিল হিসেবে বিবেচিত হয়। ]Halima Khatun -Vs.- Md. Arshad Ali (Soumendra Sarker J) 6 ALR - 2015(2)162
Section 12
Specific performance of contract– Angikarnama (Ext.6) is the continuation of the oral agreement for sale which was executed on 31.12.1997 and execution of Angikarnama is admitted by the respondent– The Appellate Court below being the last Court of fact rightly appreciated these matters of fact in the light of true perspective of the case– That such finding of the High Court Division being based on perverse, misreading of evidence and non-consideration of materials on record– Appellate Division has found that Angikarnama (Ext.6) is the continuation of the oral agreement for sale which was executed on 31.12.1997 and execution of Angikarnama is admitted by the respondent. Thus, the aforesaid argument of the learned Advocate appearing on behalf of the respondent has no leg to stand upon. It also appears that the defendant refused to execute kabala on 12.02.1998 and the suit being instituted on 05.03.1998 is very much within the period of 3 years limitation. Thus, This Division holds the view that the suit is not at all barred by limitation. The Appellate Court below being the last Court of fact rightly appreciated these matters of fact in the light of true perspective of the case. This Division finds no misreading or non-consideration of the evidence on record which would allow the revisional Court to set aside the judgments of the Courts below and would entitle the plaintiff to get decree in the suit. This Division holds that there is infirmity and illegality in the impugned judgment. Having considered all the materials on record, This Division has no other alternative but to allow the appeal without any order as to costs. .....Abu Naser =VS= Ali Karim, (Civil), 2022(1) [12 LM (AD) 660]
Section 12
Specific performance of contract– With a view to prove a bainanama in a suit for specific performance of contract, there should be evidence as to the fact of existence of a bainanama executed by the party, passing of consideration money and delivery of possession of the suit land, if any. .....Abdul Quddus(Md.) =VS= Md. Mahbubul Haque, (Civil), 2022(1) [12 LM (AD) 690]
Section 12
The civil Court is competent to pass a decree for specific performance and to direct the vendor to execute and register the sale deed after obtaining sale permission from the authority concerned and redemption of the mortgage from the bank within a specified time failing which the plaintiff will be entitled to get the sale deed executed and registered through Court, and in that event the pro-forma defendants will be bound to accord necessary permission for sale and to redeem the mortgage property in compliance with the decree. Explanation to section 12 of the Specific Relief Act provides that the breach of contract to transfer immovable property cannot be adequately compensated by money. Bohumukhi Samabaya Samity Ltd. -Vs.- Md. Nazrul Islam 5 ALR (HCD)2015(1) 41
Specific Relief Act (I of 1877)
Section 12
Contract Act (IX of 1872)
Section 55
Although it was stipulated in the agreement that the contract for sale should be completed within a period of one year, the breach of such condition was sanctioned by the payment of liquida ted damage. Therefore, time was definitely not the essence of the contract. The vendor's acceptance of Tk. 15,00,000.00 of the consideration money on 15.02.1994 has negated the aspect of time as the essence of the contract. According to section 55 of the Contract Act, if it was the intention of the parties that the time should not be the essence then the contract does not become voidable, but the promisee becomes entitled to receive compe-nsation for the delay in performance of the agreement. The seller is entitled to receive taka two crore by way of compensation. Mahua Khair -Vs- Amena Begum Ali Ispahani 1 ALR (AD) 169
Sections 12 and 22
The defendant No. 1 filed written statement in the suit for specific performance of contract admitting the deed of agreement for sale in between the plaintiff and the defendant No. 1 for which it brings the suit within the purview of Order XII, rule 1 of the Code as a result of which the plaintiff was at liberty to invoke the Rule 6 of Order XII, for a decree on admission by the defendant No. 1. There was no legal impediment in obtaining a decree on admission because in July 1991 necessity for Income Tax Clearance Certificate for registration was withdrawn. Despite such a position the plaintiff impleaded defendant Nos. 3 to 7 and 8, who are in no way necessary parties when the added defendants took several adjournments contributing to the delay of disposal which appears to be hidden desire of the plaintiff because he was neither ready nor willing to perform his part of the contract. The plaintiff has not come with clean hand. The High Court Division was pleased to direct the defendant No. 1 to refund the earnest money to the plaintiff within six months from the date of drawing up of the decree together with an interest @10% per annum till filing of the written statement failing which the suit shall stand decreed. Abul Muhshin Chowdhury -Vs- Syeda Abul Kalam Azad (Civil) 1 ALR (HCD)63
Section 12–– Specific performance for contract–– Legally entitled to set back the consideration money with solatium–– Both the parties came to an agreement that the defendant No.2 would pay a sum of tk.50,00,000/- (fifty lacs) to the plaintiff A.K.M. Zakir Hussain. In such circumstances, on 19.02.2018 we directed the defendant No.2 to pay the said amount. In view of the direction, the defendant No.2 paid a sum of tk.50,00,000/-(fifty lacs) through a pay order to the plaintiff petitioner. Thereafter, this Court on 04.03.2018 passed the following order. "According to our order dated 19.02.2018, the leave petitioner has furnished a pay order bearing No.0098584 dated 26.02.2018 drawn in the name of A.K.M. Zakir Hossain issued by the Al-Falah Bank Ltd. The pay order is handed over to Dr. Muna Hossain, daughter of plaintiff-petitioner A.K.M. Zakir Hossain today." The leave petition is disposed of. The impugned judgment and decree of the High Court Division is modified accordingly. .....A.K.M. Zakir Hussain =VS= Roshanally Mohammad Hiriji, [4 LM (AD) 36]
Section 12–– Specific performance of contract– Bainapatra–– Appellate Court the last Court of fact–– The appellate Court discussed the evidence on record in detail and came to a definite finding that the plaintiff had been able to prove the bainapatra and the High Court Division did not commit any illegality in concurring with the findings and decision arrived at by the appellate Court, the last Court of fact. We do not find any substance in this appeal. Accordingly, this civil appeal is dismissed without any order as to costs. .....Maron Chandra Shil =VS= Fatema Begum, [5 LM (AD) 340]
Section 12–– Specific performance of contract–– Giving a decree for specific performance is a matter of discretion of the Court–– It is settled principle of law that giving a decree for specific performance is a matter of discretion of the Court. In exercising its discretionary power, the Court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief according to the case presented. In this case, there was no agreement for sale. In fact, the plaintiff came to the Court to enforce the terms and conditions of an alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document. In view of such facts and circumstances, the plaintiff is not entitled to get any relief. …Kazi Fazlus Sobhan =VS= Government of Bangladesh, [7 LM (AD) 113]
Abandoned Buildings (Supplimentary Provision) Ordinance
[LIV of 1985]
Section 5 —The Appellate Division ob-served that it is now settled that a decree passed in a suit for specific performance of contract does not cover under any clauses of the proviso to section 5 of Ordinance No. LIV of 1985. It is not a decree declar-ing the title of the claimant since in such a decree the Court does not declare that the building is not an abandoned property or that the property has not been vested in the government under P.O.16 of 1972. In a de-cree for specific performance of contract the main issue is whether the owner of the property entered into a contract for sale of the property. There is no scope for deciding the title of the plaintiff in such a suit.
Mrs. Amena Khatun -Vs.- The Chair-man, Court of Settlement and others. (Civil) 11 ALR (AD) 96-99
Order VI Rule 17 —Amendment in the plaint
Specific performance of contract.
The facts alleged in the plaint indicated that payment was made by cheque as well as by cash, and the amendment simply named the person, who had issued the cheque. Such an amendment in our view does not change the nature and character of the suit.
The Appellate Division has considered the submissions of the learned Advocates appearing for the parties concerned, perused the impugned judgement of the High Court Division and other connected papers on record. The High Court Division observed that the view of the trial Court was that the amendment would change the narration of the occurrence in respect of the mode of payment. The High Court Division held that such view was erroneous since the proposed amendment was in fact explanatory and elucidative of facts already asserted in the plaint. The facts of the decision referred by the learned Advocate for the appellants, though they relate to the issuance of a cheque, are quite dissimilar, inasmuch as in the decided case the signatory of the cheque was being introduced as the plaintiff’s agent, since she was continuously living in Calcutta. In that way the plaintiff was claiming that the agreement was not with herself, but with her accredited agent. Thus, in the decided case, effectively the parties to the alleged agreement of sale were being changed, which is not the same in the case before Appellate Division. In the facts and circumstances described above, we do not find that the decision referred by the learned Advocate for the appellants is applicable in the facts and circumstances of the instant case. In the instant case the facts alleged in the plaint indicated that payment was made by cheque as well as by cash, and the amendment simply named the person, who had issued the cheque. Such an amendment in Appellate Division view does not change the nature and character of the suit.
Sree Nilu Banerjee and another -Vs.- Swapan Sarker and others. (Civil) 10 ALR (AD) 310-312
Order VII, rule 11 read with section 15
Transfer of Property Act [IV of 1882]
Section 54A read with Specific Relief Act [I of 1877]
Section 21A read with
Registration Act [XVI of 1908]
Section 17A —Since the plaintiff had no registered deed of agreement in sup-port of his claim over the two apartments and two car parking spaces along with undivided and undemarcated share of the land in question, his claim was not legally maintainable.
The Appellate Division observed that it appears that the High Court Division al-lowed the appeal on the finding, inter alia, that “It has been decided by all the Court of this subcontinent that the plaint was to be rejected within the four corners of the plaint. On a reading of the plaint it appears that plaintiff nowhere stated that there was an agreement or the agreement was registered or not. It is a plain case that plaintiff was given assurance for two apartments but later on, dispute arose. Defendant cancelled it. The Plaintiff, through this suit, questioned the action of developer to the effect that allotment of two apartments in the name of plaintiff being cancelled by the impugned letter with the signature of principal-defendant after taking booking money. The booking money is wit the defendants and suit instituted for not per-forming of contract. Appellate Division finds that the plaint cannot be rejected un-der any of the provision of Order VI sub-rule (a) and (b) of the said order. Law, as has been applied, was applied wrongly without applying judicial mind.
Comprehensive Holdings Limited and another -Vs.- MH Khan Monju and others. (Civil) 11 ALR (AD) 136-144
Sections 12, 21A and 42 —The Appellate Division held that by no imagination, the declaration can be treated or construed as one for specific performance of contract and such declaration clearly at-tracts the provisions of section 42 of the Act. So far as the first declaration is concerned, it appears to us a bit debatable, i.e. straightway, it cannot be said either it comes within the periphery of a suit for specific performance of contract as pro-vided in section 12 of the Act or attracts the mischief of section 42 thereof and this debate can only be resolved on a full scale hearing of the suit and on assessment of the evidence to be produced by the parties at the trial.
Comprehensive Holdings Limited and another -Vs.- MH Khan Monju and others. (Civil) 11 ALR (AD) 136-144
Section 12 —A suit for specific performance of contract relating to immovable property, time is not the essence of the contract, nor hardship of the defendant is a ground to refuse relief.
The High Court Division held that when a vendor executes a deed of sale but it re-mains unregistered and the vendee sues for specific performance of the original con-tract, the question is to be considered whether there is a subsisting contract for sale or not and if the contract be subsisting, the vendee has a statutory right to have the contract performed.
Md. Abul Kalam Azad -Vs- Md. Majibur Rahman and others (Civil) 12 ALR (HCD) 375-383
Section 18 - Lease property
It recognizes as enforceable at law the right of a person contracting to purchase or to take in lease property from a person who at the time of the contract does not own it but subsequently acquired it. Abdul Motaleb -Vs.- Md. Waziuddin 3 ALR(2014)(1) 289
Section 21A(b) —No contract for sale of any immovable property can be specifically enforced unless the balance amount of consideration of the contract is deposited in the Court at the time of filing the suit.
The High Court Division held that at the time of filing of the suit for Specific Performance of Contract, the balance consideration money, if any, must be deposited in the Court. In the instant case the suit was filed without depositing the balance consideration of money taking a plea or ground that in the meantime the defendant No. 1 i.e. the seller of the land had taken the rest amount of taka 9,00,000/- (nine lacs). The contract for sale was registered on 29.12.2011 and Taka 1,00,000/- (one lac) was handed over in favour of the vendor in black and white at that time. Had there been any transaction for the rest amount of the said contract that also should have been taken place in black and white. However, from the impugned order of the trial Court it appears to the High Court Division that he without applying his judicial mind passed an order which has no any legal basis at all. Since the law is very much clear that the depositing of the balance consideration is must at the time of filing of a suit for Specific Performance of Contract there was no scope for the trial Court to avoid it. The trial Court ignoring the codified law cannot render justice or adjudicate any matter like the trial by ordeal. Thus, the High Court Division finds that the impugned order has been suffering from gross illegality.
Md. Habiz Uddin Habiz -Vs.- Musam-mat Kayrun Nahar Talukder. (Civil) 14 ALR (HCD) 87-89
Section 21 A(b):
Provides for mandatory deposit of balance consideration money at the time of filing the suit for specific performance of contract
Deposit of balance consideration money at the time of filing the suit is mandatory requirement of law notwithstanding the contract made prior to the amendment came into effect and in the event of failure to make such deposit the plaint of the suit shall be liable to be rejected as provided under Order 7 rule 11 (d) of the Code of Civil Procedure. [Alimuddin Bepari (Md.) Vs. Somola Khatoon and others 251-256, 14 MLR 2009]
Specific performance was refused on the ground of hardship of the respondent, a widow of the late defendant, and if solatium or compensation is paid only in consideration of the present market value of the land, then the purpose of refusing specific performance on the ground of hardship will be defeated. [Abdus Sobhan vs Md Altsanullah (Civil) 801, 14 BLC 2009]
Suit for specific performance of contract
The appellate court below found that the plaintiffs were able to prove the execution of the bainapatra, passing of the consideration and delivery of possession of the suit land and decreed the suit. The subsequent purchasers who with prior knowledge of the contract purchased the suit land are directed to join the execution of the sale deed in favour of the plaintiffs. [Shahjahan Ali Fakir (Md.) and others Vs. Md. Bappi Gazi and others 497, 14 MLR 2009]
Contract of sale cannot be enforced in favour of a vendor when he knew that he had no title to the land to be sold-A third party can in such a case be added as a party when he claims the land to be in his possession. [Bajrang Lal Vs. Akshed Ali 35 DLR 110]
Dispute of title in a suit for specific performance-there is no scope for deciding the question of title of the defendant No. 1 in this suit for specific performance of contract by the buyer or to declare that defendant Nos. 2 and 3 have no title in the suit-property. Specific performance being an equitable relief Court is not bound to grant the same merely because the contract between the plaintiff and defendant No. 1 has been proved. (Silver Estate Ltd Vs. Abdul Hakim Mia 43 DLR 360)
Since title of the suit property is under dispute and the defendants have proved that the disputed property was under possession of Taher Ali and then the defendants 14 and 15 have been owning and possessing the suit land by mutating their names in the SA and RS Khatians, discretional power cannot be exercised to give equitable relief in a suit for specific performance of contract. (Shamsul Haque (Md) Vs. Munsur Ali and others 5 BLC 519)
Dispute of title in a suit for specific performance, there is no scope for deciding the question of title of the defendant No. 1 in this suit for specific performance of contract by the buyer or to declare that defendant Nos. 2 and 3 have no title in the suit-property. Specific performance being an equitable relief Court is not bound to grant the same merely because the contract between the plaintiff and defendant No. 1 has been proved. (Silver Estate Ltd Vs. Abdul Hakim Mia 43 DLR 360)
Since title of the suit property is under dispute and the defendants have proved that the disputed property was under possession of Taher Ali and then the defendants 14 and 15 have been owning and possessing the suit land by mutating their names in the SA and RS Khatians, discretional power cannot be exercised to give equitable relief in a suit for specific performance of contract. [Shamsul Haque (Md) Vs. Mansur Ali and others 5 BLC 519)
The plaintiff brought the said suit against the defendant Nos. 1-3 for specific performance of contract evidenced by the bainanama Ext 1 dated 15-11-1956. The title acquired by the defendant Nos. 2 and 3 by virtue of Exts C&D having arisen subsequent to the aforesaid bainnnama, the plaintiff could have enforced the agreement for sale against defendant Nos. 2 and 3 were not transferees for value or did not pay their money in good faith or that they had notice of the prior contract for sale.
At the moment when the said suit OS No. 9 of 1959 was brought i.e. on 11-2-1959, defendant No. 1 had no subsisting interest in the disputed land as he had disposed of his right and interest in the disputed land in favour of defendants 2 and 3 and any enforcement of the contract dated 15-11-1956 against him alone and execution and registration of kabala through Court on his behalf would not create any title in favour of the plaintiff, and therefore, the plaintiff rightly impleaded the said defendant Nos. 2 and 3 along with defendant No. I for specific performance of contract as is contemplated in section 27 of the Specific Relief Act. [Abdul Khaleque Sowdagar Vs. Mohammad Fazlul Huq, 26 DLR 247]
Onus of proof-Quantum of onus-Where in a suit for specific performance against a person who claims title from the vendor under a registered deed, executed after the contract sued upon, the said person claims to be a bonafide purchaser for value without notice of the pervious contract, the onus lies upon him to prove that he had no notice of the earlier contract so as to bring himself within the exception provided by clause (b) of section 27 of the Act. With regard to the question as to what should be the quantum of proof that the person claiming to have purchased the property in good faith without notice would offer, it seems that since the onus is to disprove notice, the burden is a light one and may even be shifted by a mere denial of the factum of the notice on oath. [Dula Mia Vs. Haji Md Ibrahim 8 DLR 616]
Doctrine of lispendens-In a case of specific performance of contract conveyance in favour of the subsequent transferee, executed before but registered after the institution of the suit-Not hit by the doctrine of lispendens.
In a case of specific performance of contract, conveyance in favour of the subsequent transferee is not affected for want of its registration provided the transferee has paid the purchase money in good faith without notice of the original contract. In such case the conveyance is not hit by the doctrine of lis pendens though it is registered after the institution of the suit. Transfer in such case is protected by the exception of section 27(b) of the Act. [Mamtazul Karim Vs. Abul Hossain 22 DLR 146.]
In a suit for specific performance of contract where the courts below directed the subsequent purchasers to execute kabala in favour of the plaintiff although they were not parties to contract but the proper form of decree would be to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff and this view is being followed in our Courts for a long time which is strengthened by the judgments of the Supreme Court of India. [Ezaher Meah and others Vs. Shaher Banu and others 2 BLC (AD) 301]
Although the conduct of the defendants appears to be shady in spite of that the defendant Nos. 2 and 3 cannot be hauled up in the absence of a specific case made out by the plaintiff within the ambit of section 27 of the Specific Relief Act, so as to make the subsequent transferees, the defendant Nos. 2 and 3 bound by the subsisting contract. [Naru Gopal Roy Vs. Parimal Rani Roy and others 6 BLC 323]
Amendment of plaint and addition of parties-addition of subsequent transferees in a suit for Specific Performance of Contract for sale of property-Nature and character of the suit is not changed-amendment and addition of party necessary for passing an effective decree.
On perusal of the plaint, written statement and the petitions for amendment of the plaint we do not find that the amendment will convert the suit into a suit for declaration of title and the entire nature and character of the suit would be changed. The learned judges, it appears, did not at all considered whether in the absence of subsequent transferees any effective decree could be made in the suits. Addition of subsequent transferees is necessary for proper adjudication of the question whether the plaintiff's case of alleged contract was genuine. If the contract is found genuine then the subsequent transfer will be subject to the decision in the suits. [City Ice and Cold Storage Limited Vs. Nitai Chandra Shaha and others, 4 BSCD 195]
Enemy Property-A contract for sale of property whether can be enforced against the Custodian of Enemy Property-The Custodian of Enemy Property stepped into the shows of the owner with the power of transfer can execute the kabala in favour of the plaintiff who got decree for specific performance of contract for sale. [Rahima Aktar and others Vs. Asim Kumar Bose and others, 5 BSCD 263]
Whether in a suit for specific performance of contract for sale of property, prayer for amendment of plaint by inclusion of a proper prayer for execution and registration of the sale deed also by the purchaser subsequent to the contract with the plaintiff should be allowed-Contract was executed on 22-1-1981 on which date the purchaser defendant was not in the scene and he had no interest in the disputed properties, the contract related to properties which then solely belonged to defendant No. 1-The defendant No. 2 came into the picture nearly 8 months after Unless he can claim ownership of the properties on and beginning from this date how can he be compelled to execute the sale deed on the basis of such contract-Since defendant No. 2 has already been impleaded in the suit he being subsequently transferee will be bound by the decree in the suit-The prayer for declaration that subsequent deed was void and fraudulent if allowed the plaintiff will have no ground for more grievance-Rejection of prayer for amendment of plaint by the Court's below approved. [Nurul Amin and others Vs. Md Fazlul Huq and others, 6 BSCD 2731]
Non-substitution of heirs of a deceased defendant Abatement of suit Whether the suit abated as a whole-Plaintiff may obtain a decree for specific performance of contract without the deceased defendant and it will not be inconsistent with the interest of the deceased defendant or his heirs-For non-substitution of the heirs of the deceased defendant the suit abated as against the heirs only. [Ibne Jafar Shafi Ahmed Chowdhury and another Vs. Shafiul Alam Nizame and others, 8 BSCD 210]
Doctrine of Part Performance-Under this section. a party may sue for specific performance of contract in writing to sell or lease out immoveable property even though it is unregistered, if he has acted in part performance of the contract. The section incorporates active equity as in England, sufficient to support independent action brought as a plaintiff-The transferee's remedy is by filing a suit for specific performance of contract for sale-The law does not give him any right to have a decree against the transferor in any other manner. [Asstt. Custodian, Enemy Property (L&B), Dacca & another Vs. Abdul Karim & ors, 2 BSCD 161]
Scope of these sections of the two statutes compared and contrasted with reference to the Doctrine of Part Performance-scope of section 27A of Transfer of Property Act is much wider than section 53A of the Transfer of Property Act. Section 27A is sufficient to support independent act for specific performance and gives a right to both transferor and transferee to enforce specifically the contract by compelling registration where there is a part performance. Section 53A of the Transfer of Property Act by itself does not provide any right to ask for a decree against the owner or his successor-in-interest but gives a statutory right to retain possession. Section 27A was enacted to prevent fraud on the part of either party where there has been a part performance on the unregistered agreement for sale. [Asstt. Custodian Enenty Property (L& B) Dacca & another Vs. Abdul Karim and others, 2 BSCD 161.]
Inadequacy of price-Mere inadequacy of price will not bring a case within the ambit of this sub-section. To attract this sub-section, an *inadequate' price must be an evidence of fraud or of undue advantage taken by the plaintiff. [Quazi Din Mohammad Vs. Al-haj Arzan Ali and another 47 DLR (AD) 48]
In such matters circumstantial evidence as to subsequent dealing will be relevant. [Shahabuddin Vs. Saijuddin, 36 DLR 3371]
The Specific Relief Act, 1877 (Act No I of 1877)
has been amended by Act ( XXVII of 2004)
incorporating a new section
Section 21A.
Under section 21A of the Specific Relief Act, the registration of an agreement for sale of any immovable property has been made compulsory. It has also been incorporated in section 21A of the Act that the plaintiff shall have to deposit in the Court the balance of the consideration on the date of filing of the suit for specific performance of the contract. Faquir Ashraf -Vs- Mrs. Bilkis Banu 2 ALR (2013)(HCD) 21
Code of Civil Procedure [V of 1908]
Order VII, Rule 11 read with
Registration (Amendment) Act, 2004
Section 17A read with
Specific Relief Act [ I of 1877]
Section 21A
The suit was filed with two prayers. Firstly, for a direction upon defendant No. 1 to execute a deed in respect of the land described in the schedule, failing which a direction that the property is liable to be registered; and secondly, seeking a direction that the registered heba-bil-awaz No. 5168 dated 10.07.2006 is inoperative. The trial Court observed that the two claims of the plaintiff cannot be decided without taking evidence.
The Appellate Division finds that the trial Court has identified two claims made by the plaintiff in the plaint of the suit. Having gone through the order of the trial Court, the Appellate Division is of the view that the application under Order VII, Rule 11 of the Code was rightly rejected and no illegality has been committed by the High Court Division in upholding the order of the trial Court. In view of the above, the Appellate Division does not find any merit in the civil petition for leave to appeal, which is accordingly dismissed. Saifuddin Ahmed -Vs.- Dr. Hosne Ara Begum alias Golap and others (Civil) 23 ALR (AD) 24
Section 22 (I) —Specific Performance of Contract.
Party seeking the relief of specific performance must come with clean hands.
The High Court Division held that it is clearly evident that the courts below considered the evidence of d.w-1, but inadvertently it was not marked as exhibit, the appellate court discussed about legal notice and consider the same, which clearly proved that the plaintiffs are not ready and willing to pay the balance consideration money. In stating the facts that the plaintiff are ready and willing to perform their part of contract, it must be taken that they are ready and willing to pay Taka 26,000/- (Twenty six thousand) only on 20.06.1982 which was balance amount payable ac-cording to them under exhibit-2 and not that they are ready and willing to pay Taka 46,000/- (Forty six thousand) which are due and payable by the plaintiffs as per findings of the courts below. Unless the readiness and willingness of the plaintiffs was to pay the entire balance consideration money Taka 46,000/- (Forty six thousand) they are not entitled to get a decree for Specific Performance. Thus irrespective of any other facts, the averments in the plaint and tender of balance consideration money on 20.06.1982, it is sufficient to hold that they are not ready and willing to perform their part of the obligation under exhibit-1. That apart, the plaintiffs who seeks equita-ble remedy of specific performance must come with clean hands. Pulin Gain and others. -Vs.- Moham-mad Hanif Howlader and others. (Civil) 10 ALR (HCD) 118-122
Section 22
The pleas of hardship- taken in time and well proved- refused enforcement of the contracts and allowed instead compensation to the Plaintiffs–– It is true that the Court of law has to follow the provisions of law and interpretation but at the same time it should be responsive to the relief sought for and in the case in hand which is equitable in nature. This Court in numerous occasions exercised its jurisdiction in granting equitable relief depending on case to case basis. Although the facts and circumstances of the case reported in 39 DLR AD 242 as referred to above is not applicable in the present case in hand but the principle as laid down by their lordships can be followed in an appropriate case as and when required. ––The leave petition is disposed of. The Judgement and order dated 29.11.2017 passed by the High Court Division is set aside. The suit is dismissed. However, the defendant is directed to pay solatium of taka 60,00,000/- (sixty lac) to the plaintiff including consideration money already paid by the plaintiff within 6(six) months from date, in default, the suit shall stand decreed and the judgment and decree of the trial court shall be restored. .....Md. Alamgir Hossain =VS= Md. Samsul Haque, (Civil), 2023(2) [15 LM (AD) 241]
Section 22 (II)
Specific performance of contract–– Court allowed the defendant's appeal, refused specific performance of the contract and allowed compensation–– Admittedly, the property in question is the only property of the vendor defendant. The father who is no more in the world entered into an agreement to sell the property to the plaintiffs for want of money. The deed of agreement for sale clearly shows that the sale was caused to settle the loan and to use the remaining money for well being of the children and some other issues but the same was not materialized. On the other hand, the plaintiffs who are bonafide proposed purchasers awaited years long to get the benefit of their agreement.
The Judgment and decrees passed by the Courts below are hereby set-aside. The suit is dismissed. The defendant-petitioners are directed to pay solatium of Taka 50,00,000 (fifty lac) to the plaintiff-respondent along with the amount treated by him of a sum of Taka 4,52,849.54 (four lac fifty two thousand eight hundred forty nine and fifty four paisa) within 6(six) months from date in default both these petitions shall be treated as dismissed. After payment being made in the manner as stated through a pay order to the respondent No. 1, the possession of the flat which was earlier handed over to the plaintiff-respondent should be returned to the defendants. .....Jahangir Ahmed (Md) =VS= Sayyid Obaidullah, (Civil), 2023(2) [15 LM (AD) 402]
Specific Relief Act, 1877
Section 22 r/w 53-A
Specific performance of contract–– An agreement for loan can not be any away termed as agreement to sell–– It appears that the plaintiff has admitted that the defendant appellant had taken loan of a sum of tk. 1,00,000/-from his brother, the plaintiff. It has been stated that the defendant No. 1 mortgaged the scheduled property against that loan amount. It was further stated that in case of failure of payment of loan, the defendant No. 1 would execute sale deed in favour of the plaintiff An agreement for loan can not be any away termed as agreement to sell since the defendant No. I had no intention to sell his property. It further appears that there is no statement in the said agreement regarding the fixation of consideration of the scheduled property and payment of the earnest money. It cannot be taken to be an agreement to sell within the meaning of section 53-A spelling out the terms of an agreement for sale. In order to pass a decree in a suit for specific performance of contract following matters should be looked into: (i) the express terms of the agreement; (ii) nature of the property; (iii) surrounding circumstances; (iv) intention of the parties and (v) reciprocal promise of executing sale deed. There is no averment in the pleading as to the offer and acceptance or refusal to accept the consideration which are the criteria to get a decree for specific performance of contract, the High Court Division most illegally treated the alleged agreement as an agreement for sale and, thereby, erroneously set aside the judgment and decree of the courts of facts below. This was not a fit case in which specific performance of contract should be enforced by the Court. .....Md. Ali Akram Hossain (Bachchu) =VS= Md. Mostafizur Rahman, (Civil), 2023(2) [15 LM (AD) 461]
Section 22
Specific performance of contract–– A contract cannot be enforced against a bonafide transferee for value who has paid his money in good faith and without notice of the original contract–– In the case of Jagan Nath Vs. Jagdish Rai and others [AIR 1998 SC 2028] it was held that plaintiff would not be entitled to relief of specific performance against subsequent purchaser when there was evidence on record establishing that the subsequent purchaser was bonafide purchaser for value without notice of earlier agreement with plaintiff. It is also well settled proposition of law that a person cannot transfer more than he has.
It appears from the judgment and decree of the last Court of facts that it upon appreciation of the evidence on record, came to the conclusion that the contesting defendants had no knowledge about the alleged agreement for sale of the plaintiff. In Second Appeal, the High Court Division disbelieved the ‘bainanama’ and held that the contesting defendants are the bonafide purchaser without knowledge of alleged ‘bainanama’. Since the last Court of facts and the High Court Division upon proper appreciation of the evidence on record held that the contesting defendants are bonafide purchasers without notice of alleged agreement for sale, Appellate Division is of the view that the suit has been dismissed rightly. .....Habiba Banu =VS= Aftabullah, (Civil), 2023(2) [15 LM (AD) 478]
Section 22
Specific performance of contract–– The genuineness of the “bainanama” is highly doubtful–– It is the duty of the plaintiff to prove that he has been and is still ready and willing to specifically perform his part of the agreement–– The plaintiffs also failed to prove their readiness and willingness of payment of rest consideration which are essential requirements to get the decree for specific performance of contract. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he asked the defendant No.1 specifically to perform the agreement pleaded by him but the defendant did not do so. It is the duty of the plaintiff to prove that he has been and is still ready and willing to specifically perform his part of the agreement. It was the legal obligation to the plaintiff that he was, since the date of the agreement for sale, continuously ready and willing to perform his part of the agreement. If he fails to do so, his claim for specific performance must fail (Ardeshir Mama V. Flora Sassoon, 1928 SCC online PC 43). P.W.1 (plaintiff) in his evidence did not say that he offered at any time to the defendant No.1 the alleged rest amount of consideration. ––Accordingly, the appeal is allowed. The judgment and decree dated 02-11-2010 passed by the High Court Division in First Appeal No.519 of 1999 is hereby set aside. .....Laxmi Narayan Chowdhury =VS= Md. Harun Fakir, (Civil), 2023(2) [15 LM (AD) 604]
Section 22
Specific performance of contract– A decree for specific performance of contract is discretionary. Even if the plaintiff is able to prove the execution of the agreement and payment of advance money towards the consideration, the court is not bound to pass a decree. Court is required to look into other factors, such as, the bonafide of the plaintiff and his eagerness in performing his part of obligation; the hardship of the defendants, if a third party purchases the property in the mean time without notice to the previous contract. If any of the said conditions is found against the plaintiff, he will not get any decree for specific performance. .....Rajdhani Unnayan Katripakka (RAJUK) =VS= Khan Mohammad Ameer, (Civil), 2022(2) [13 LM (AD) 233]
Section 22
In the absence of corroboration by independent witnesses, the assertion is not proved and hence the suit is barred by limitation– Specific performance of contract– With regard to the claim of PW 1 that defendant No.1 last refused to accept the balance of the consideration money on 14-9-1998. several independent witnesses including SM Nazrul, Manik Mia, Advocate Motiur Rahman, Yousuf Mia, Harunur Rashid. Shahjahan Mia-Chairman were present. Of these named persons Shahjahan Mia deposed as PW 3 and Yousuf Mia deposed as PW 5, but neither of them supported the claim of PW 1 that on 14-9-1998 defendant No.1 refused to execute the deed. This date was merely stated by the plaintiffs to avoid the bar of limitation. In the absence of corroboration by independent witnesses, the assertion is not proved and hence the suit is barred by limitation.
The High Court Division also elaborately discussed the circumstances surrounding Title Suit No.84 of 1992 and came to the conclusion that the deed of gift in favour of defendant No.l. being a registered document established the title of the defendant, particularly, since the plaintiffs of the present suit were the successors of the plaintiff of Title Suit No.84 of 1992 but did not take any further step in that suit and allowed it to be dismissed for default. Appellate Division does not find any illegality or impropriety in the impugned judgment of the High Court Division, which in their opinion does not call for any interference. .....Akteruzzaman Zakir =VS= Md Enamul Kabir Khokan @Bazlur Rahman, (Civil), 2022(1) [12 LM (AD) 253]
Section 22 - Specific performance of contract, the plaintiff did not approach the court with clean hand and tried to delay in disposal of the suit designed to frustrate the very purpose of the contract for sale.
Though the contract was found lawful yet the plaintiff was not at all ready and willing to pay the balance amount of Taka 44 (forty four) lacs within a reasonable time rather he adopted various techniques to delay the payment of the balance consideration. Therefore, he did not approach the court with clean hand rather attempted to cause unnecessary harassment to the defendant No.1 particularly in view of the delay in disposal of the suit designed to frustrate the very purpose of the contract for sale. In other words the purpose for which the sale was entered into was negatived by such intentional delay in payment of the balance amount of consideration by the plaintiff and a contract which was entered into on 01.03.1989 and its performance in the year 2007 ( when the balance was paid by the plaintiff before the court on 12.03.07) is no doubt highly unjustified. Abul Mohsin Chowdhury -Vs.- Syed Abul Kalam Azad 3 ALR(2014)(1) 272
Section 27
The maxim of law has settled many more years ago holding that specific performance of the contract can be enforced against either party or against any other party who claims title under the original party– The High Court Division passed the impugned judgment and order against the settled principles of law without appreciating the case of the plaintiff that alternative prayer was withdrawn by the plaintiff amending the plaint on 19.06.1984 vide, order No.9l which was not challenged by the contesting defendants in the Higher Court and, as such, the impugned judgment and order of the High Court Division cannot be sustained in law. .....Ahsanullah @Ahlullah(Md.) =VS= Mohammad Ali @Kuti Miah, (Civil), 2022(1) [12 LM (AD) 30]
Section 27 —Discretionary power of the court cannot be exercised arbitrarily and must be exercised judiciously.
The High Court Division held that con-duct of the defendants has played a signifi-cant role to disbelieve their case and be-lieve the case of the plaintiff, which has been ignored by the court of appeal below. Apart from this, the learned Additional District Judge, Chandpur at the time of de-ciding the merit of the appeal failed to ap-preciate the actual proposition of law and being guided by surmise and conjecture without adverting and analyzing the evi-dence on records in its true perspective ar-rived at an erroneous decision as to the fate of the appeals and thereby committed an error of law. Furthermore, non-considera-tion of material facts and evidence on records by the learned appellate court has resulted an error in the decision occasion-ing failure of justice, for which the im-pugned judgment and decree is not sustain-able in law as well as in facts. Md. Abul Kalam Azad -Vs- Md. Majibur Rahman and others (Civil) 12 ALR (HCD) 375-383
Code of Civil Procedure [V of 1908]
Order IX Rule 13
A defendant against whom an ex parte
decree has been passed can either file an appeal against the decree, or file an
application for review or pray for restoration of the suit under Order IX Rule
13. These remedies are all concurrent and independent. An application under
Order IX Rule 13 of the Code of Civil Procedure can be heard notwithstanding
the pendency of the appeal arising out of the same decree. It makes no
difference that the application is made by one defendant and the appeal has
been filed by another defendant.
President Order No. 142 of 1972 in
unequivocal terms stated in Article 6 that no person shall, without joining the
Government which shall be a necessary party, file or proceed with any suit for
specific performance of contract relating to transfer of immoveable property or
for declaration of title to, or assertion of ownership of any such
property.
The Appellate Division observed that
where the ex parte decree has been confirmed or otherwise disposed of on
appeal, the Court passing the decree ceases to have jurisdiction to hear the
application for restoration even though the application was filed before the
appeal was filed as its decree merged in the appellate decree. The same principle
will hold good even if the appeal has been preferred by a party other than the
defendant against whom the decree was passed ex parte.(emphasis supplied) In
this connection reliance may be placed on the case of Md. Wasiq Khan Vs. Md.
Sakib Khan and others (1979) 31 DLR (AD) 57, it has been held in paragraph-18
as under: 18. On a review of the decisions and the discussion on the question
set out, the following propositions seem to be well settled: Where a defendant
against whom an exparte decree is passed applies under Order 9, rule 13 of the
Code of Civil Procedure to set it aside and at the same time prefers an appeal
from it, the Calcutta High Court has held that notwithstanding the pendency of
appeal the original court may proceed with the application. Da¬modar vs. Sarat
Chandra 13 CWN 846 and Kumud Nath vs. Jathindra Nath, 38 Calcutta 394. The
Allaha¬bad High Court has also taken the same view. Mathura vs. Ram Charan, 37
Allahabad, 208; Gaja¬raj vs. Swaminath, 39 Allahabad, 13: Humani vs. Azizuddin,
39 Allahabad, 143. The extreme position taken by Madras High Court in Sankar
vs. Subdrajan, 30 Madras, 535 has not been followed by other High Courts. Where
the exparte decree has been confirmed or otherwise disposed of on appeal the
court which passed the exparte decree has no longer any power to entertain an
application to set it aside, even though the application was made before the
appeal was filed. Mathura vs. Ram Charan.37 Alla¬habad, 208. The same principle
will hold good even if the appeal has been preferred by a party other
than the defendant against whom the decree was passed exparte provided the
decree was one and indivisible. Dhonai Sikder vs. Tarak Nath, 12 CLJ 53. But it
will not affect the case of the defendant against whom exparte decree was passed
and whose claim was not subject matter of appeal although he might be made
party as respondent in the appeal. Abdul Jalil Bhuiyan vs. Majibar.12 DLR 581.
The remedy un¬der Order IX Rule 13 of the Code of Civil Procedure is not
available if the appeal is disposed of prior the¬reto. But before disposal of
the appeal trial Court which passed the ex-parte decree against defendant Nos.
2 to 5 is competent to hear and dispose of an application filed under Order IX
Rule 13 of the Code of Civil Procedure. President Order No. 142 of 1972 in
unequivocal terms stated in Article 6 that no per¬son shall, without joining
the Government which shall be a necessary party, file or proceed with any suit
for specific performance of contract relating to transfer of immoveable
property or for declaration of title to, or assertion of ownership of any such
prop¬erty. In the case in hand, defendant No. 1, Govern¬ment of Bangladesh,
represented by the Deputy Commissioner, Gazipur was impleaded in the suit as
proforma-defendant No. 2 in violation of President’s Order No. 142 of 1972. In
the light of the findings made before, the Appellate Division does not find any
substance in this appeal. Accordingly, this civil appeal is dismissed without
any order as to costs. Jamuna Builders Ltd. -Vs.-Bangladesh and others.
(Civil) 21 ALR (AD) 01-06
Code of Civil Procedure [V
of 1908]
Order 26 Rule 9 read with
Evidence Act [I of 1872]
Section 45 and 73—The hand writing
expert
In a suit for Specific Performance of
Contract where the existence of the bainanama itself is under challenge
therefore any finding at this stage on the veracity of the report of the hand
writing expert shall have a direct bearing during the trial of the suit and
which is not at all desirable for appropriate and lawful dispensation of
justice.
The High Court Division is of the
considered opinion that it is true that in a suit for Specific Performance of
Contract where the genunity or Veracity of the bainanama is under challenge the
issue obviously extends to the question of the existence of the contract
itself, hence arriving upon a finding or decision as to the genunity of the
signature prior to commencement of trial would tantamount to concluding the
suit itself. In its order dated 25.10.2016 learned Court below correctly
observed that in the event of arriving at a finding on the genunity of the
report of the handwriting expert in that event there shall not remain any scope
to examine witnesses and depositions made by them and shall give rise to
further legal complications in conducting the proceedings. The High Court
Division is also of the considered view that in a suit for Specific Performance
of Contract where the existence of the bainanama itself is under challenge
therefore any finding at this stage on the veracity of the report of the hand
writing expert shall have a direct bearing during the trial of the suit and
which is not at all desirable for appropriate and lawful dispensation of
justice. Motaher Ali -Vs.-Yakubia Shamol Prokolpa Private Limited and others
(Civil) 16 ALR (HCD)381-384
Adverse possession.
Mere possession, however long or
continued may be, does not necessarily mean that it is adverse to the true
owner. Adverse possession means a hostile possession which expressly or
impliedly in denial to the title of the true owner.
In the instant case, the Appellate
Division finds that defendant Nos. 1-5 have got no claim of valid title and
their possession is not notorious and hostile to the true owner. Thus, the
Appellate Division is not in a position to hold that defendant Nos. 1-5
acquired statutory title by way of adverse possession. Over and above, a
monthly tenant cannot claim adverse possession for his rented premises for completing
twelve years continuous possession and his possession cannot be treated as
hostile and notorious. The Appellate Court being the last Court of fact arrived
at a decision that defendant Nos. 1-5 were the monthly tenants under defendant
Nos. 6-8. The learned Advocate appearing on behalf of the plaintiff-respondents
argued that the last Court of fact has seen defendant Nos. 1-5 as tenants under
defendant Nos. 6-8 and these findings of the Appellate Court had not been
shaken in any way as it appears from the facts, the circumstances and the
evidence on record and as such, there is no scope to interfere with such
finding. The Appellate Division also hold the view that possession of a monthly
Varatia (tenant) cannot be constituted as acquisition of adverse possession.
Defendant Nos. 1-5 have neither filed any suit in respect of acquisition of
adverse possession nor any suit for specific performance. It is settled
proposition that time is the essence of contract. But after expiry of long
time, defendant Nos. 1-5 made no attempt to obtain a decree for specific
performance. Thus, defendant Nos. 1-5 are being in possession of the suit
premises without having any title. The Appellate Court termed it as a monthly
tenant as has been alleged by the appellant and the Appellate Division also
hold the view that on the basis of such type of possession, there is no scope
to acquire the statutory title like adverse possession. Having considered all
those facts, the circumstances and the evidence on record, the Appellate
Division finds that there is no substance in the argument ad¬vanced by the learned
Advocate appearing on behalf of the defendant-appellants. In the light of the
facts and circumstances discussed above, the Appellate Division does not find
any illegality or infirmity in the impugned judgment, which in the Appellate Division
view does not call for any interference. Accordingly, the appeal is dismissed.
Mohammad Ab¬dul Ha¬que Chowdhury and others -Vs.-Mohammad Abed Ali Khan and
others (Civil) 18 ALR (AD) 173-180
Discretionary power and ordinary
powers.
It is settled principle of law that
giving a decree for specific performance is a matter of discretion of the
Court. In exercising its discretionary power, the Court will act with
more freedom than when exercising its ordinary powers, and will grant or
withhold relief according to the case presented.
The Appellate Division observed
that in this case, there was no agreement for sale. In fact, the plaintiff came
to the Court to enforce the terms and condi¬tions of an alleged unregistered
deed of dissolution of partnership to dissolve their partnership deed which has
not even been proved to be a genuine document. In view of such facts and
circumstances, the plaintiff is not entitled to get any relief. Accor¬dingly,
the Appellate Division does not find any substance in the appeal. Thus, the
appeal is dis¬missed. Kazi Fazlus Sobhan being dead his heirs: Kazi Fazle Rabbi
and others -Vs.- Government of Bangladesh and others (Civil) 16 ALR (AD) 46-48
In a suit for specific performance of
contract the duty of the Court is to see whether or not there was an agreement
for sale and if there was any breach of such agreement, then to order or reject
specific performance of contract.
The Appellate Division observed that
there is no allegation that the bainanama has been interpolated. There is no
evidence in the deposition of defendant No. 1 that the quantum of land
mentioned in the bainanama has been changed either by interpolation or
insertion. There is also no denial that defendant No. 1 executed that the
bainanama on 16.09.1999. On perusal of exhibit-1 the Appellate Division does
not find any sign of interpolation or insertion with regard to the quantum of
land. Defendant No. 1 did not deny execution of the bainanama dated 16.09.1999
or his signature therein. He, therefore, cannot now challenge the contents of
the bainanama, which clearly does not bear any sign of interpolation or
subsequent inser¬tion. Moreover, defendant No. 1 did not take any steps to
prove that the transfer of land to his wife by way of heba-bil-ewaz was
effective and not a mere paper transaction. In the light of the above
discus¬sion the Appellate Division is of the view that the judgement of the
trial Court was correct and that the impugned judgement and order of the High
Court Division does not suffer from any illegality or impropriety. However, the
order of cancellation of the registered heba-bil-ewaz deed No. 18423 dated
19.10.1998 as void, inoperative and not acted upon is beyond the pleadings.
There was no prayer in the plaint for cancellation of the registered deed of
heba-bil-ewaz. Accordingly the sentence “the registered Heba-bil-awaz deed
being No. 18423, dated 19.10.98 is hereby cancelled, void and inoperative and
not acted upon.” is expunged. Suffice it to say that in a suit for specific
performance of contract the duty of the Court is to see whether or not there
was an agreement for sale and if there was any breach of such agreement, then
to order or reject specific performance of contract. In view of the above
discus¬sion, the Appellate Division finds that the High Court Division was
correct in upholding the judge¬ment and decree of the trial Court. Accordingly,
the appeal is dismissed. Md. Nayeb Ali -Vs.- Md. Mahafu¬jur Rahman and others
(Civil) 21 ALR (AD) 7-9
Specific Performance of contract
The plaintiff failed to pay the balance
consideration within the stipulated time despite service of notice in that
regard and that finding no other alternative, the defendant No. 5 sold the
property with a view to repay the loan.
The parties intended the time mentioned
in the agreement to be the essence of the contract.
The Appellate Division observed that
the High Court Division on consideration of the materials on record held that
the plaintiff did not perform his part of obligation and make payment of Tk.
25,00,000/- only, that the defendant No. 4 entered into the agreement to sell
the property in order to repay the debt of Tk. 9,14,00,000/- and knowing full
well about the debt, the plaintiff failed to pay the balance consideration
within the stipulated time despite service of notice in that regard and that
finding no other alternative, the defendant No. 5 sold the property with a view
to repay the loan. On consideration of the materials on record The Appellate
Division is satisfied that in this case the parties intended the time mentioned
in the agreement to be the essence of the contract. Accordingly, the Appellate
Division finds no substance in the contention of Mr. M. Amirul Islam. The High
Court Division upon correct assessment of the materials on record arrived at a
correct decision and dismissed the appeal on assigning proper reasons. The
Appellate Division, therefore, finds no reason to interfere with the same. The
petition is accordingly dismissed. Globe Druges Ltd. -Vs.- Arab Bangladesh Bank
Ltd. and others (Civil) 22 ALR (AD) 193
Specific Performance of Contract.
In the suit for Specific Performance of
Contract the plaintiff is to require to prove the existence of lawful contract
and due execution of agreement and payment of consideration.
The High Court Division held that the
plaintiff has also proved the contract and execution of agreement and payment
of consideration by examining the independent and neutral witnesses. On perusal
of the judgment of the courts below it appears to the High Court Division that
the learned Judge of the courts below considered the evidence and other
materials on record concurrently found that the plaintiff has been proved the
genuineness of Bainapatra, consideration and due execution of agreement and
therefore the High Court Division cannot interfere with the concurrent finding
of facts in revisional jurisdiction. Abdul Aziz -Vs.- Md. Jalal Uddin.
(Civil) 18 ALR (HCD) 197-199
The suit for specific performance of
contract
Since the requirement of law is that
demand for the execution of the sale deed must be accompanied by payment of the
balance sale price. This act of fraud disqualifies the plaintiffs from getting
the relief sought.
The Appellate Division held that
specific performance of contract is an equitable relief. The fraudu¬lent action
of the plaintiffs in issuing a cheque for the balance consideration, with the
knowledge that the funds in the account were not sufficient to honour the
cheque and with the admitted intention not to put in funds to cover the cheque
amount until after execution of the sale deed, is admission of fraud since the
requirement of law is that demand for the execution of the sale deed must be
accompanied by payment of the balance sale price. This act of fraud
disqualifies the plaintiffs from getting the relief sought. Most. Ambia Khatun
and others -Vs.- Sree Shuklal Turaha and others (Civil) 20 ALR (AD) 5-10
Specific performance of contract
When the plaintiff asserted that he
paid the balance amount of the consideration of the contract and that there was
no outstanding on the date when the suit was filed, there was no requirement of
depositing the balance amount of consideration of the contract to file a suit
for specific performance of contract. Panasonic Power Division -Vs.- Chemico
Bangladesh Limited and others (Civil) 15 ALR (AD)108-111
The Appellate Division observed that
record reveals that the TCB opened L/C in favour of the respondent for
importation of Masur Dal as specified in the contract entered between the parties
on 19.09.2010. The duration of L/C was to expire on 05.12.2010 and
sub¬sequently, at the request of the respondent, the duration was extended up
to 13.12.2010 and lastly time was extended up to 20.01.2011. Admittedly, the
respondent imported Masur Dal from Nepal under L/C and sup-plied 1000/- Metric
Tons Red Lentils to the TCB in its first shipment. However, the respondent
supplied Masur Dal which was not in accordance with the specification of the
contract and could not supply half of the total quantity of the contracted
goods within specified period. In the case in hand, the leave-petitioner did
not terminate the contract. The leave-petitioner was adequately compensated for
loses it had suffered by paying Tk. 78/- per K.G. Since the leave-petitioner
has been compensated by paying a lesser price for 10% of Masur Dal, it is not
entitled to forfeit the performance guarantee. Trading Corporation of
Bangladesh -Vs-M/S Trio Hologram Industries Ltd. (Civil) 15 ALR (AD)111-114
Specific performance of contract
In a suit for specific performance of
contract where the agreement for sale is not reduced to writing, the burden is
heavily upon the plaintiff to prove by oral evidence that there was such an
agreement; that consideration money was paid and any unpaid portion of the
consideration was offered; and that in spite of the offer of the remainder of
the consideration amount and request to execute and register the deed of sale,
the defendant refused. It is equally important that any evidence in respect of
the above is corroborated by credible independent evidence. Akteruzzaman Zakir
and others -Vs.-Md. Enamul Kabir and another (Civil) 25 ALR (AD) 54
Suit for specific performance of
contract
Code of Civil Procedure [V of
1908]
Order XLI Rule 31
The appellate Court below without
adverting to the points upon which the trial court dismissed the suit reversed
the same which is certainly not a proper reversal of judgment and decree on the
part of the appellate Court.
The Appellate Division held that the
object of Rule is to ensure that the appellate Court does not act mechanically
and that it comes to the decision upon independent consideration of the
materials on record of course in keeping with the Rule. The cases of Rustam Ali
vs. Abdur Rahman 1994 BLD (AD) 229, Azizul Huq vs. Purna Chandra Das 9 BLC (AD)
218, Nazir Ahmed vs. Abdul Kader 1995 BLD 463 and Kalyan Krishna Goswami vs.
Madhyapara High School 1995 BLD 509 are some authorities on the point.
Therefore, the impugned judgment and Order of the High Court Division as well
as the judgment and decree of the lower appellate court passed by the
Additional District Judge, Kushtia in Title Appeal No. 171 of 1989 are set
aside and the case is sent back on remand to the lower appellate court to pass
a proper judgment in consonance with the provisions of Order XLI Rule 31 as
expeditiously as possible preferably within 6 (six) months on receipt of this
judgment in accordance with Law. With the above observations and directions
this civil petition for leave to appeal is disposed of. The parties are
directed to maintain status-quo in respect of possession and position of the
suit land till disposal of the appeal. Most. Shahera Khatoon -Vs.- Hoshne-ara
Banu and others (Civil) 27 ALR (AD) 282
Code of Civil Procedure [V of 1908]
Section 115(1) read with
Specific Relief Act [I of 1877]
Section 22
Specific performance of contract
Subsequent payments of the
consideration money were not proved in accordance with law. However, the
Appellate Division finds that this issue was not raised by D.W.1 in his
evidence and payment of further sums was endorsed on the back of the deed of
agreement for sale. Also, as noted above, this point was specifically dealt
with by the trial Court and the appellate Court with reference to evidence. The
observation of the High Court Division in this regard is patently contrary to
the evidence on record.
The Appellate Division opined that the
High Court Division in exercising its revisional jurisdiction reversed the
concurrent finding of the trial Court and the appellate Court. The High Court
Division put the blame on the plaintiff for not obtaining stamp paper for the
purpose of executing deed of sale nor paying gain tax. However, the
Appellate Division note that the trial Court found that there is nothing in the
agreement for sale to show that the plaintiff agreed to procure income tax and
gain tax clearance certificate. The High Court Division observed that defendant
No. 1 sold out the property to 3rd parties after the compromise decree with the
plaintiff. This clearly is not supported by the evidence on record, from which
the Appellate Division finds that the earlier compromise decree was set aside
by the Appellate Division in the year 1999, and defendant No. 1 sold the
properties to 3rd parties in the year 2002 and 2003, which is supported by the
evidence of D.W.1. Hence, the basis for reversing the concurrent findings of
the Courts below was palpably erroneous. The High Court Division also noted
that subsequent payments of the consideration money were not proved in
accordance with law. However, the Appellate Division finds that this issue was
not raised by D.W.1 in his evidence and payment of further sums was endorsed on
the back of the deed of agreement for sale. Also, as noted above, this point
was specifically dealt with by the trial Court and the appellate Courtwith reference
to evidence. The observation of the High Court Division in this regard is
patently contrary to the evidence on record. In view of the above discussion,
it clearly appears that the High Court Division erred in not properly assessing
the evidence and materials on record, and has erroneously reversed the
concurrent findings of the Courts of fact. Accordingly, the Appellate Division
finds merit in the appeal, which is allowed. Mosammat Rokeya Begum -Vs.-
Farookh Sobhan and another (Civil) 27 ALR (AD) 62
Article 113
Suit for Specific Performance of
Contract.
Three moths time was given to execute
and register the sale deed vide agreement dated 10.12.2000 and thereafter
although notice was given on 24.12.2002 but if the time limit starts from
10.12.2000, a date of execution the bainanama three years time will end in the
year 2004 but the instant suit was filed within that period of limitation on
14.09.2003 that means the suit was filed well within time as per Article 113 of
the Law of Limitation. Thus the suit cannot be said to be barred by limitation.
A hardship alone cannot be a ground to
refuse a suit for specific performance of contract.
The High Court Division upon going
through the deposition of the defendant viz D.W. 1 and 2 together with his
written statements it will appear nowhere defendant has succeed to prove his
hardships for which it can be said that the bainanama is not executable.
Moreover a hardship alone cannot be a ground to refuse a suit for specific
performance of contract. Keeping the High Court Division’s anxious, regard
being had to the above law, fact and circumstances of this case, the High Court
Division is constraint to hold the view that the learned Joint District Judge
committed no illegality in decreeing the suit. The High Court Division thus
find no merits in this appeal. In the result, the appeal is dismissed without
any order as to cost and the judgment and decree passed by the trial court is
hereby affirmed and the suit is decreed. Motiur Rahman Khan -Vs.-
Hasan-Ul-Kamar and another (Civil) 27 ALR (HCD) 229
Suit for specific performance of
contract
An agreement for loan cannot be any
away termed as agreement to sell since the defendant No. 1 had no intention to
sell his property. It further appears that there is no statement in the said
agreement regarding the fixation of consideration of the scheduled property and
payment of the earnest money. It cannot be taken to be an agreement to
sell within the meaning of section 53-A spelling out the terms of an agreement
for sale.
The Appellate Division held that in
order to pass a decree in a suit for specific performance of contract following
matters should be looked into: (i) the express terms of the agreement; (ii)
nature of the property; (iii) surrounding circumstances; (iv) intention of the
parties and (v) reciprocal promise of executing sale deed. There is no
averment in the pleading as to the offer and acceptance or refusal to accept
the consideration which are the criteria to get a decree for specific
performance of contract, the High Court Division most illegally treated
the alleged agreement as an agreement for sale and, thereby, erroneously set
aside the judgment and decree of the courts of facts below. This was not a fit
case in which specific performance of contract should be enforced by the Court.
Considering the aforesaid facts and circumstances, the Appellate Division finds
substance in the appeal. Accordingly, the appeal is allowed. Md. Ali Akram
Hossain (Bachchu) -Vs.-Md. Mostafizur Rahman and others 28 ALR (AD) 98
Specific performance of contract in respect
of a deed of reconveyance....(2) With an oral agreement to reconvey the same to
him on refund of the consideration money of Tk. 14,000/-....(2) In view of
entries in the written document any evidence contrary thereto can- not be
legally acceptable under the pro- vision of Sections 91/92 of the Evidence Act.
Moreso it appears that except P.W.2 Abdus Salam, brother of the plaintiffs,
they could not produce any other neutral witness to support the claim of oral
con- tract of the defendant No.1 to convey the suit property. Md. Shamsur
Rahman @Labul and others vs. Md. Sadek Ali @ Lessua Mia (Amirul Kabir Chowdhury
J) (Civil) 4ADC 469
Specific Performance of Contract
That the appellant was inducted into
possession by the respondent in pursuance of the contract and as the appellant
is willing to perform his part of the contract, the respondent cannot rescind
the contract and the appellant is entitled to get a decree for specific
performance of contract. Amir Hossain vs Md. Amir Ali (Md. Hamidul Haque J)
(Civil) 2 ADC 38
Specific Performance of contract
in respect of an agreement for sale
High Court Division committed grave
illegality in striking out the names of the petitioners of civil revision and
trans- posing the respondents as the petitioners who are not parties to the
suit itself nor assignees in the same and allowing them to proceed with the revisional
application. Jahanara Begum ors. vs Hazera Khatun ors. (Mohammad Fazlul Karim
J)(Civil) 3ADC 137
Specific Performance of contract
Executing Court having stayed the
Execution Case at the instance of third party and it violated the very maxim that
the execution Court cannot go behind the decree. Mozharul Islam Chowdhury Vs
Dilip Kumar Roy (Syed J. R. Mudassir Husain C J)(Civil) 3ADC 291
Specific Performance of contract
The impugned judgment cannot stand in
the eye of law as the High Court Division failed to notice that only issue to
be decided in the matter is whether the unregistered deed of sale dated
01.03.1976 in favour of the plaintiff appellants is a genuine document or not.
A. Jabbar Rari Vs Sultan Hossain Matbar (Amirul Kabir Chowdhury J)(Civil) 3ADC
273
Specific Performance of contract
In order to convert proposal into a
promise the acceptance must be absolute and unqualified. Until accepted the
stage of negotiations has not been passed and no legal obligation is imposed.
Bangladesh Moktijoddah vs Kamal Trading Agency (A. T. M. Afzal CJ)(Civil) 3ADC
638
Specific Performance of Contract- In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved. Hafizur Rahman vs Abdur Rahman Miah, 68 DLR 110
Contract void under section 20-If compensation payable under section 56.
Section 56, Contract Act, requiring compensation to be paid to the promisee for the failure of performance of a contract, on account of its impossibility or unlawful nature, which impossibility or unlawful nature was known or might, with reasonable diligence have been known to the promisor applied only where an agreement otherwise valid was rendered void by such impossibility of performance. Sheikh Brothers Lid vs Arnold Julus Ochsner. PLD 1957 PC 95.