Smt. Sulagna Bose v. Biswanath Banik & Ors.

Sanjib Banerjee, J.:— The petition arises out of the refusal by the trial court to reject the plaint in a suit relating to an immovable property seeking a declaration in respect of the protection envisaged by Section 53A of the Transfer of Property Act against the owners along with a prayer for specific performance of the relevant agreement.

2. Paragraph 4 of the plaint pertaining to the suit filed in the year 2010 alleges as follows:

“That in accordance with the agreement and concurrence of the defendant as well as a letter issued to the plaintiffs dated 5.4.2004 on the basis of the defendant's letter, the plaintiffs purchased stamp paper of Rs. 45,000/- on 25.4.2004 and also the deed was prepared on the engrossed stamp paper and was completed and only execution of documents was left but surprisingly the aforesaid defendant deliberately avoided the execution illegally with ill motive to cause prejudice to the right of the plaintiffs and with intent to get excess consideration.”

3. It is submitted on behalf of the opposite party nos. 1 and 2, the plaintiffs, that the relevant averments do not imply that specific performance of the agreement was refused either on April 5, 2004 or on April 24, 2004. It is submitted on behalf of the plaintiffs that the dates given pertain to the letter written by the plaintiffs and when the stamp-papers were purchased, but no specific date is attributed to the avoidance of the execution of the relevant deed by the petitioner herein.

4. To begin with, the words “deliberately avoided the execution illegally with ill-motive” are a long-winded way of saying “refused”. Since the cause of action to sue for specific performance arises on the date of refusal to perform, the suit had to be instituted within three years thereafter. The suit was instituted in the year 2010 though the deliberate avoidance of the execution of the deed of conveyance appears to have been in the year 2004.

5. More importantly, that the deliberate avoidance of the execution of the deed of conveyance pertaining to the immovable property happened in the year 2004 or within reasonable time of the plaintiffs purchasing the stamp-papers is evident from the use of the word “thereafter” in the opening sentence of the following paragraph.

6. In view of it being evident from the plaint that the relief for specific performance had not been pursued within three years of the cause of action arising and since a declaration simpliciter under Section 53A of the Transfer of Property Act is not maintainable as against the actual owner, the plaint was liable to be rejected.

7. The order impugned dated March 28, 2017 passed in Title Suit No. 166 of 2010 by the Civil Judge (Senior Division) at Sealdah is set aside and the petitioner's application under Order VII Rule 11 of the Code is allowed by rejecting the plaint pertaining to Title Suit No. 166 of 2010.

8. CO 1417 of 2017 is allowed as above, but without any order as to costs.

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