In the High Court at Calcutta

Civil Appellate Jurisdiction

Appellate Side

The Hon’ble Mr. Justice Sabyasachi Bhattacharyya

And

The Hon’ble Mr. Justice Supratim Bhattacharya

F.A.T. No. 209 of 2022

IA No: CAN 3 of 2025

Burhanur Rahaman and Others

-Versus-

Nurul Islam and others

For the appellants : Mr. Gopal Chandra Ghosh, Sr. Adv.,

Mr. Arnab Roy,

Mr. Satyam Mukherjee, ... Advs.

For the respondent nos.1 & 2 : Mr. Pralay Kar,

Ms. Debasree Dhamali,

Ms. Riya Ghosh,

Ms. Debolina Ghosh, … Advs.

For the

respondent nos.2(a) & 2(b) : Mr. Aniruddha Chatterjee, Sr. Adv.,

Mr. Abir Lal Chakraborty, ... Advs.

Heard on : 02.07.2026

Reserved on : 02.07.2026

Judgment on : 08.07.2026

2

Sabyasachi Bhattacharyya, J.:-

1. The present appeal has been filed at the behest of the plaintiffs in a suit for

specific performance of an unregistered agreement dated April 8, 2009,

against the dismissal of the said suit.

2. Learned senior counsel appearing for the appellants contends that although

the plaintiffs/appellants did not sign the agreement -in-question, such

omission does not vitiate the agreement, since it was duly signed by the

vendors/principal respondents and the appellants were all along ready and

willing to perform their part of the contract. Moreover, the appellants, by

filing the suit for specific performance, have also expressed their intention to

have the agreement performed.

3. Learned senior counsel further argues that although it was stipulated in

Clause (2) of the agreement that the purchase shall be completed within

three months from the date of execution of the agreement, the said Clause

was subject to the rider that a good and marketable title is made out and

the vendors make the property free from all encumbrances, claims and

demands. However, the vendors/principal respondents did not hand over to

the purchasers the title deeds, municipal bills and other papers necessary to

ascertain such marketable title. As such, the stipulated period of three

months was not treated by the principal respondents themselves to be the

outer limit of performing the agreement. By not performing their part of the

contract, it is argued, the principal respondents/vendors diluted the time-

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limit and, as such, it cannot be said that time was the essence of the

contract.

4. Moreover, in their letter dated May 4, 2010 (marked as Exhibit-2 in the suit)

written to the vendors/principal respondents, the appellants asserted that

although the appellants were always ready and willing to pay the balance

consideration amount, the principal respondents did not perform their part

of the contract by supplying the parcha of the present owner, existing

sanction plan and related deeds. No reply was given to the said letter by the

vendors/principal respondents, thereby admitting such allegations. As

such, it should be construed to be an admitted position that only due to the

principal respondents not performing their part of the contract, the deed

could not be executed within the stipulated period of three months pursuant

to the contract.

5. Learned senior counsel for the appellants next contends that Clause (2) of

the agreement contemplated receipts to be issued upon the deeds and other

documents, including municipal bills relating to the subject-property, being

handed over to the appellants. The principal respondents could not produce

any such receipt before the Trial Court. Rather, DW -1, in his cross-

examination, admitted that he had no document to show that the original

deed, khajna receipts, tax receipts and other connected papers relating to

the subject property were delivered to the plaintiffs/appellants.

6. Learned senior counsel further argues that the principal respondents, in

their written objection to the application filed by the plaintiffs/appellants for

amendment of the plaint, admitted that a meeting was held on July, 2010

4

between the plaintiffs, the principal defendants and the proforma defendant,

where the members of the said meeting requested the p rincipal

defendants/respondents to complete the registration of sale deed after

payment of balance consideration, but the principal defendants refused to

do so. Thus, it is evident from the records that an offer was made by the

plaintiffs even after the expiry of the stipulated period of three months and

that the principal defendants/respondents had agreed to a joint meeting to

resolve the issue. Accordingly, it is contended that time was never the

essence of the contract.

7. Learned senior counsel appearing for the appellants further argues that the

plaintiffs/appellants were all along ready and willing to perform their part of

the contract. It is argued that as per the amended Section 16(c) of the

Specific Relief Act, 1963, there is no necessity to plead readiness and

willingness in the plaint. Thus, the said requirement has been diluted by

the Legislature.

8. Furthermore, from Exhibit-2, the notice issued by the plaintiffs on May 4,

2010, it would be evident that the plaintiffs/appellants were ready and

willing to pay the balance consideration amount to have the agreement

performed at all points of time. By choosing not to reply to the said letter,

the principal defendants/respondents tacitly consented to such position.

9. Furthermore, in the written objection to the application for amendment of

plaint, the principal respondents themselves admitted having held a joint

meeting with the plaintiffs for resolution of the dispute regarding

performance of the agreement, where the plaintiffs offered to pay the balance

5

consideration amount but the principal defendants/respondents refused to

accept the same.

10. Thus, the fact that the plaintiffs/appellants were ready and willing to

perform the agreement at all points of time cannot be disputed.

11. Learned senior counsel appearing for the appellants next submits that the

principal defendants/respondents admittedly did not inform the

plaintiffs/appellants about execution of the sale deed in favour of the added

respondents/subsequent purchasers till after execution of the same.

Moreover, in the deed executed by the principal respondents in favour of the

subsequent purchasers, the principal respondents falsely gave out that

there was no prior agreement in respect of the suit property, thereby

suppressing the existence of the subject agreement to the subsequent

purchasers. In the said deed, there is a clause which provides that the

subsequent purchasers may resile from the deed in the event it is found that

any material fact was suppressed or incorrectly stated therein. Thus, the

said transaction is itself vitiated by the aforementioned suppression.

12. That apart, the appellants argue, the subsequent purchasers were fully

aware of the prior agreement between the principal respondents and the

appellants, to cover up which the deed deliberately included the clause of

there being no prior agreement. Hence, by resorting to such falsehood, the

principal respondents and the added respondents now seek to make out a

case that the latter were unaware of the prior agreements, being thus bona

fide purchasers for value without notice, which is contrary to facts.

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Accordingly, it is submitted that the agreement is fully enforceable against

the subsequent purchasers/added respondents as well.

13. Lastly, learned senior counsel argues that merely because the proforma

respondent (one of the original intending purchasers) subsequently resiled

from the agreement, the agreement cannot be said to have been vitiated on

such count alone. The appellants submit that they had paid the share of

the consideration amount of the proforma responden t to him, which

tantamounts to the proforma respondent assigning his role as an intending

purchaser to the plaintiffs/appellants. It is pointed out that in the

description of parties in the subject agreement, “assigns” of the purchasers

were also included within the definition of “purchasers”. Hence, the learned

Trial Judge ought to have directed specific performance of the agreement in

favour of the appellants, both in their own capacity and in the capacity of

assignees of the proforma respondent.

14. In reply, learned counsel for the principal respondent nos. 1 and 2 argues

that the plaintiffs/appellants were not ready and willing to perform their

part of the contract, which is a sine qua non for grant of a decree of specific

performance, at any relevant point of time.

15. In his cross-examination, DW-1 admitted that he had no document to show

that the plaintiffs/appellants had the balance consideration amount of

Rs.25.50 lakh during the three months immediately following the execution

of the agreement. Thus, even at the relevant juncture, the appellants could

not have performed their part of the agreement by paying the balance

consideration amount as per the agreement. Accordingly, it is argued that

7

the lack of readiness and willingness on the part of the plaintiffs/appellants

debarred them from claiming specific performance of the contract.

16. Secondly, learned counsel for the principal respondents argues that the

agreement-in-question did not contain the signature of the intending

purchasers/appellants, thus rendering the same invalid in the eye of law.

17. Thirdly, in view of the proforma respondent (one the original intending

purchasers) having withdrawn from the agreement, the said agreement, in

its original form, was rendered void and inexecutable. In the event specific

performance was to be granted by the learned Trial Judge, the court would

have to re-write the contract and direct performance of a new contract

without the proforma respondent, which is not permissible in law.

18. That apart, the learned Trial Judge, in the impugned judgment and decree,

directed the earnest money to be returned by the principal respondents to

all the intending purchasers, including the proforma respondent, thus

indicating that the alleged assignment of the rights of the proforma

respondent to the appellants was never recognised by the learned Trial

Judge.

19. In support of his contenting relating to readiness and willingness, learned

counsel for the principal respondents cites Mohammed Khaleel (D) Through

LRs & Ors. Vs. Jayamma [Civil Appeal No. 2187 of 2011], where the Hon’ble

Supreme Court reiterated the principle of readiness and willingness and

observed that the relief of specific performance is one based on equity for

enforcing contractual obligation undertaken by the parties and Section 16(c)

of the Specific Relief Act required the person seeking specific performance to

8

specifically aver and prove his continuous readiness and willingness to

perform his obligations. A failure to satisfy these requirements would

ultimately make him disentitled for the relief of specific performance. The

term ‘readiness’, it was held, refers to the financial capacity, and the term

‘willingness’ reflects the conduct and intention of the party seeking the relief

to perform the contract, and both these conditions cumulatively have to be

seen for making out a case of specific performance. In the present case,

since the appellants failed on both counts, the relief of specific performance

could not be granted in their favour.

20. Learned senior counsel for the added respondents/subsequent purchasers,

while adopting the arguments of the principal respondents, adds that

Section 19(b) of the Specific Relief Act specifically excludes bona fide

purchasers for value without notice from the purview of specific performance

of contracts. It would be evident from the purchase deed of the added

respondents that the principal respondents (vendors therein) clearly stated

in the deed that there was no prior agreement in respect of the subject-

property. Not a single document has been produced by the appellants to

prove that the added respondents had any knowledge of the prior agreement

between the parties. Thus, the relief of specific performance cannot be

granted against the subsequent purchasers. Any prior knowledge of the

agreement on the part of the added respondents has also been denied in

Paragraph No. 9 of the written statement of the added respondent nos.2(a)

and 2(b), it is submitted.

9

21. In support of his contentions, learned senior counsel appearing for the

added respondents cites Maharaj Singh and others v. Karan Singh (dead)

Through Legal Representatives and others, reported at (2024) 8 SCC 83,

where the principle embodied in Section 19(b) was reiterated.

22. Upon hearing learned counsel for the parties, the following issues come up

for consideration in the present appeal:

(i) Whether the subject-agreement was vitiated due to absence of the

signatures of the intending purchasers/appellants;

(ii) Whether time was the essence of the contract; if so, whether the same

debars the claim for specific performance;

(iii) Whether the appellants could prove their readiness and willingness to

perform their part of the contract;

(iv) Whether the unwillingness of the proforma respondent to act in terms of

the agreement operates as a bar to specific performan ce of the

agreement;

(v) Whether the relief of specific performance can be granted in view of

subsequent sale of the subject -property to the added

respondents/subsequent purchasers.

23. The above issues are decided as follows:

10

(i) Whether the subject-agreement was vitiated due to absence of

the signatures of the intending purchasers/appellants

24. From the Agreement dated April 8, 2009 (Exhibit-9), it is evident that the

same contains only the signatures of the intending vendors/principal

respondents; the signatures of the intending purchasers/appellants are

conspicuous by their absence. However, such fact, per se, does not vitiate

the agreement. No law mandates that an agreement, to be binding on one of

the parties thereto, has to mandatorily contain the signature of the other

party. It would suffice that the execution of the agreement is not disputed by

any of the parties and is duly proved by evidence. The question which arises

in the present case is whether the agreement was enforceable against the

intending vendors. Since the same contained the signatures of the principal

respondents/vendors, the agreement is binding on the principal

respondents and, as such, they cannot raise any objection to the binding

effect of the same merely due to absence of the appellants’ signature. In any

event, since the appellants have, although at a belated stage, written to the

principal respondents on May 4, 2010 (Exhibit-2) indicating their intention

to purchase the property and have also filed the suit for specific

performance of the same, by their conduct they have relied on the

agreement. Thus, mere absence of the signature of the appellants on the

agreement does not render the same void, nor vitiated in any manner.

25. Accordingly, this issue is decided in favour of the appellants.

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(ii) Whether time was the essence of the contract; if so, whether the

same debars the claim for specific performance

26. Clause (2) of the agreement for sale dated April 8, 2009, clearly stipulates

that the purchase shall be completed within months from the d ate of

execution of the agreement, provided a good marketing title is made out and

the vendors and the vendors make the property free from all encumbrances,

claims and demands whatsoever.

27. The appellants have not been able to establish, nor have pleaded that the

principal respondents/intending vendors did not have a good and

marketable title and that the property was not free from encumbrances,

claims and demands. Thus, the stipulation of three months cannot be

diluted on such count. In Clause (3) of the agreement, it is specifically

stipulated that time for the said performance would be deemed to be the

essence of the contract. Hence, the parties intended the stipulated period of

three months to be the essence of the contract.

28. The appellants argue that due to the non-handing over of the deeds and

other papers, including municipal bills, relating to the property by the

respondent nos.1 and 2 to the appellants, which was to be done

simultaneously with the execution of the agreement, the period of three

months stood extended, as the appellants could not ascertain the

marketable title within such period.

29. However, it is to be noted that during the said three months, not a single

communication made by the appellants to the principal respondents has

been brought on record to indicate that the appellants ever raised such

12

objection or intimated the same to the principal respondents during the

stipulated period of three months.

30. In his cross-examination, DW-1 merely admitted that he had no document

to show that the title deeds and other papers relating to the property were

handed over to the appellants. Undoubtedly, Clause (2) of the agreement

envisages accountable receipts for delivery of the deeds and other related

papers, and the principal respondents have failed to produce any such

receipts. However, mere absence of receipts cannot automatically give rise

to the conclusion that the documents were not handed over in reality. In

fact, by their own conduct, the appellants have belied their objection on

such score, since no such objection was raised contemporaneously in that

regard at all. It remains unexplained as to what prevented the appellants

from demanding such documents in the event those were not handed over,

during the stipulated three months from the execution of the agreement.

31. Although Clause (2) of the agreement stipulates that such deeds and other

papers relating to the property were to be delivered by the vendors to the

appellants simultaneously with the execution of the agreement, there was

no default clause, diluting the mandatory period of three months for the

execution of the deed in pursuance of the agreement in the event such

documents were not handed over.

32. The appellants further argue that since the principal respondents did not

reply to the notice dated May 4, 2010 (Exhibit-2), issued by the plaintiffs

alleging that the principal respondents were silent during the relevant period

as to the performance of their part of the agreement, it cannot be overlooked

13

that such post facto notice, issued one year after the expiry of the stipulated

three months from the execution of the agreement dated April 8, 2009,

cannot ipso facto validate the inaction of the appellants during such period.

33. Mere absence of any reply to the said notice by the principal respondents

cannot automatically imply any admission on the part of the principal

respondents as to the contents of the same. The said letter was neither any

affidavit nor any pleadings in a litigation, that the doctrine of non-traverse

would be applicable thereto.

34. The contents of the written objection of the respondent nos. 1 and 2 to the

application for amendment of plaint filed by the appellants do not indicate in

any manner that time was no t the essence of the contract. As per the

averments made therein, much subsequent to the stipulated mandatory

period of three months and even after execution of the sale deed in respect

of the property in favour of the added respondents, a meeting was convened

by well-wishers of the parties. However, such averments do not amount to

an admission that the stipulated time limit for performance of the agreement

was extended; rather, it is categorically averred in the said written objection

that the earnest money was sought to be returned by the principal

respondents after such period, which was refused by the appellants, and

that the principal respondents denied to perform the agreement between the

parties at that juncture. Such post facto developments cannot be construed

to have diluted or extended the mandatory period of three months from the

date of execution of the agreement.

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35. Hence, this Court comes to the conclusion that as per the terms of the

agreement, time was the essence of the contract and there is nothing on

record to indicate that the parties resiled from such position.

36. Accordingly, the claim for specific performance of the agreement is debarred

on such count alone.

(iii) Whether the appellants could prove their readiness and

willingness to perform their part of the contract

37. The argument of the appellants that post-amendment of Section 16 (c) of the

Specific Relief Act, 1963, no averment is required to be made in respect of

readiness and willingness, does not come to the aid of the appellants. We

say so because even the amended Section 16(c) mandates that the plaintiffs

in a suit for specific performance have to prove their readiness and

willingness. Only the requirement of an averment being made to that effect

in the plaint has been deleted from the statute, but not the necessity to

prove such fact.

38. Coming to the facts of the instant case, PW-1, in his cross-examination,

categorically admitted that he did not have any document to prove that the

appellants were in possession of the balance consideration amount of

Rs.2.50 lakh within the three months following the execution of the

agreement. Thus, the readiness and willingness of the plaintiffs/appellants

at the relevant juncture, when it was most required, was not only not proved

by the appellants, but disproved by such admission of PW-1 in his cross-

examination.

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39. Learned senior counsel appearing for the appellants submits that the

balance consideration was deposited by the appellants. However, admittedly,

such deposit was made much later, only pursuant to the direction of this

court in connection with the appeal, and nowhere near the relevant period

when it was to be paid.

40. The so-called readiness and willingness of the appellants cannot be said to

be vindicated by the notice dated May 4, 2010 (Exhibit-2), issued about

more than one year after execution of the agreement, and/or the subsequent

attempts at reconciliation under the intervention of common well-wishers of

the parties. Such post facto attempts cannot justify the appellants’ plea that

they have established their readiness and willingness at all material points

of time.

41. As reiterated in Mohammed Khaleel (D) Through LRs (supra)

1

, proof of

readiness and willingness has to be continuous, from the execution of the

agreement till the suit for specific performance is disposed of. ‘Readiness’, as

explained in the said decision, refers primarily to the financial capacity of

the intending purchasers, which was disproved by the evidence of PW 1 and

not established by any cogent evidence whatsoever by the appellants. Even

on ‘willingness’, during the stipulated three months, or even much

thereafter, not a single correspondence or other material evidence has been

brought on record to indicate that the plaintiffs/appellants were even willing

to perform their part of the agreement during the relevant period, when it

1

Mohammed Kh aleel (D) Through LRs & Ors. Vs. Jayamma [Civil Appeal No. 2187 of

2011]

16

mattered most. Exhibit A-series in the suit indicates that the principal

defendants/respondents cancelled the agreement by their letter to the

appellants dated April 15, 2009, after waiting for the stipulated three

months’ period, which was proved to have been served on the appellants.

Even thereafter, the appellants waited till as late as May 4, 2010 to give a

notice to the principal respondents as to their intention to honour the

agreement.

42. Thus, in absence of any contemporaneous proof to show the readiness an d

willingness of the appellants at all points of time, the suit for specific

performance was rightly dismissed on such ground as well by the learned

Trial Judge.

43. This issue, thus, is decided against the appellants.

(iv) Whether the unwillingness of the profor ma respondent to act in

terms of the agreement operates as a bar to specific

performance of the agreement

44. The proforma respondent, one of the original intending purchasers,

subsequently resiled from the said agreement. Thus, the principal

respondents are justified in arguing that the agreement, in its present form,

could not be performed, since a decree for a deed to be executed after the

abstention of the proforma respondent would necessarily mean that the

court would have to re-write the agreement, by directing a sale deed to be

executed by the principal respondents only in respect of the

17

plaintiffs/appellants, without the proforma respondent being a party

thereto.

45. The appellants vociferously argue that the proforma respondent assigned his

part of the agreement to the plaintiffs/appellants, thus bringing the

appellants within the purview of “assigns” which is included in the definition

of “purchasers” in the agreement.

46. However, no material evidence has been brought on record to establish the

fact that the appellants have actually paid the proforma respondent’s share

of the consideration amount/earnest money to him and/or any agreement

between the appellants and the proforma respondent regarding assignment.

In the absence of any proof as to such assignment, fact remains that the

agreement, as it originally stood, could not be performed after the proforma

respondent backed out from the same. Hence, the unwillingness of the

proforma respondents, one of the intending purchasers, to act on the

agreement debars the relief of specific performance of such agreement as it

originally stood.

(v) Whether the relief of specific performance can be granted in

view of subsequent sale of the subject -property to the added

respondents/subsequent purchasers

47. Section 19(b) of the Specific Relief Act, 1963 provides that specific

performance of a contract may be enforced against any other person (than a

party to the agreement) claiming under the parties to the agreement by a

title arising subsequently to the contract. However, the said provision

18

carves out an exception to the same in respect of a transferee for value who

has paid his money in good faith and without notice of the original contract.

48. In the present case, not an iota of evidence has been brought on record by

the appellants to establish that the added respondents/subsequent

purchasers had any knowledge of the prior agreement between the

appellants and the principal respondents at the time of purchase. On the

contrary, in the sale deeds executed in favour of the subsequent purchasers

on September 8, 2010, which has been brought in evidence by the principal

defendants/respondents (Exhibits-C and D), it would be evident that it was

stated in the sale deeds that the subject-property of the sale was not

encumbered by any prior agreement for sale in favour of any third party and

it was denied therein that any earnest money was received by the vendors

(principal respondents) from any third party. Thus, from the very contents

of the transfer deed executed in favour of the added respo ndents, it is

clinched that the subsequent purchasers/added respondent nos.2(a) and

2(b) did not have any knowledge of the prior agreement between the

plaintiffs/appellants and the principal defendants/respondents.

49. The agreement-in-question dated April 8, 2009 is admittedly an unregistered

agreement. Thus, it cannot also be said that the subsequent purchasers had

deemed notice of the same in view of its registration.

50. Accordingly, not only have the appellants failed to prove any prior knowledge

of the subsequent purchasers in respect of the subject-agreement dated

April 8, 2009, such prior knowledge has been disproved by the contents of

the deed executed in favour of the subsequent purchasers.

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51. As reiterated in Maharaj Singh (supra)

2

, Section 19(b) specifically excludes

the enforcement of contracts by specific performance against bona fide

purchasers for value paid in good faith and without notice of the original

contract. Since the subsequent purchasers/added respondents squarely fall

within such exempted category, the subject-agreement is not specifically

enforceable against them. As the subsequent purchasers are the current

owners of the property, no effective decree can thus be passed in the

appellants’ suit for specific performance of the agreement dated April 8,

2009.

52. Hence, this issue is also held in favour of the respondents and against the

appellants.

CONCLUSION

53. In view of the above findings, this Court does not find any error of law or

fact in the impugned judgment and decree, whereby the learned Trial Judge

refused to grant specific performance of the Agreement dated April 8, 2009,

in favour of the plaintiffs/appellants. For the sake of completeness, we also

take note of the fact that, at best, the remedy of the plaintiffs/appellants

might have lay in damages against the principal respondents for the latter

having transferred the subject-property in favour of the third parties/added

respondents by suppressing the existence of the prior agreement for sale.

However, the said relief is a non -starter, since, in the plaint, the

2

Maharaj Singh and others v. Karan Singh (dead) Through Legal Representatives

and others, reported at (2024) 8 SCC 83

20

plaintiffs/appellants have only claimed made an alternative claim of refund

of their earnest money. Neither any prayer nor any pleading or basis of

claim regarding damages finds place in the plaint. Thus, no relief can be

granted to the plaintiffs/appellants which has not been prayed for by them

in the suit.

54. Even otherwise, it is doubtful as to whether, after expiry of the stipulated

period of three months from the execution of the Agreement dated April 8,

2009, the plaintiffs could have a claim even of damages against the

defendants/respondents as the said agreement no longer operated as an

encumbrance/actionable claim on the subject-property or as a fetter to the

transfer of the same in favour of third parties.

55. Insofar as the suppression of the existence of the prior agreement by the

principal respondents to the subsequent purchasers in the latter’s deed is

concerned, the same, at best, gives rise to a cause of action inter se the

parties to such deed. The appellants cannot, in any manner, claim any

benefit in that regard. The terms of the sale deed in favour of the

subsequent purchasers included an option of the said purchasers to cancel

the deed in the event any suppression by the ir vendors (the principal

respondents) was discovered. As the subsequent purchasers/added

respondents chose to waive such right and went ahead with the transfer in

their favour, it is not for the appellants to claim any advantage on the basis

of the said terms. Also, the appellants would be hit by the doctrine of privity

of contract, not being a party to the transfer deed executed by the principal

respondents in favour of the subsequent purchasers.

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56. Thus, the only relief which could be granted to the appellants is the refund

of earnest money, as already granted in the impugned judgment and decree.

57. Although not argued by the appellants, we make it abundantly clear that the

appellants could not even claim any interest on the earnest money, from the

initial date of payment of the same, since the appellants have not claimed

any such interest, nor is there any justification to saddle the principal

defendants/respondents with the liability to pay interest for the period from

expiry of three months from the agreement till payment, as they were not at

fault in any manner in refusing to execute the deed in terms of the subject-

agreement after expiry of the stipulated period of three months. The

subsequent purchasers/principal respondents, in any event, cannot be held

liable at all in that regard.

58. The learned Trial Judge, rightly in our opinion, refused the decree of specific

performance and directed refund of the earnest money of Rs.5,00,000/ -

simpliciter, within the period stipulated in the said decree; if not paid within

such period, the same would carry interest at the rate of 7% per annum.

59. However, since the matter was sub-judice in the present appeal, the date of

such refund, if not already paid, is required to be extended.

60. Accordingly, F.A.T. No.209 of 2022 is dismissed on contest, thereby

affirming the impugned judgment and decree dated July 22, 2022 passed by

the learned Civil Judge (Senior Division), First Court at Barasat, District –

North 24 Parganas in Title Suit No.619 of 2010.

61. However, in view of the pendency of the appeal till date, the time for refund

of the earnest money of Rs.5,00,000/ - by the principal

22

defendants/respondents to the plaintiffs/appellants and proforma

defendant/proforma respondent is extended for a period of 60 days from

date, if not already paid.

62. In the event of non-payment of such amount within the said period, the

principal defendants/respondents shall be liable to pay interest at the rate

of 7% per annum on the earnest money to the plaintiffs/appellants and

proforma defendants/proforma respondents , calculated on such amount

from the first day after expiry of 60 days from this date till the date of such

payment.

63. There will be no order as to costs.

64. Accordingly, IA No: CAN 3 of 2025 is also disposed of.

65. Interim orders, if any, stand vacated.

66. A formal decree be drawn up accordingly.

(Sabyasachi Bhattacharyya, J.)

I agree.

(Supratim Bhattacharya, J.)

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Later:

After the above judgment is passed, it is pointed out by learned

counsel appearing for the appellants that pursuant to an interim order of

this Court, the balance consideration amount had been deposited by the

appellants.

The appellants are permitted to withdraw such amount, subject to

deduction of statutory expenses.

(Supratim Bhattacharya, J.) (Sabyasachi Bhattacharyya, J.)