IN THE HIGH COURT AT CALCUTTA

(CIVIL APPELLATE JURISDICTION)

APPELLATE SIDE

Present:

The Hon’ble Justice Sabyasachi Bhattacharyya

And

The Hon’ble Justice Supratim Bhattacharya

FA No. 102 of 2023

Sri Chandranath Dutta

Vs.

Smt. Dhira Mazumder and another

For the Appellant : Mr. A. C. Kar

Mr. Manoj Kumar Roy

Mr. Anirban Kar

Mr. Rohit Mahato

For the Respondent : Mr. Ayan Banerjee

No. 1 & 2 Mr. Suman Banerjee

Heard On : 16.07.2026

Reserved On : 16.07.2026

Judgment On : 29.07.2026

Supratim Bhattacharya, J.:

1. The present appeal has been preferred by the plaintiff /appellant being

aggrieved by the judgment dated 18.12.2021 passed by the learned Civil

Judge (Senior Divn.) 3

rd

Court Alipore in Title Suit No. 615 of 2016 (Sl.

No. 39 of 2003) through the said judgment the learned Court has been

pleased to dismiss the suit on contest against the defendant.

2. Factual matrix.

Before the Trial Court

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The plaintiff /appellant has filed a suit for specific performance of

contract alternatively for damages and recovery of part consideration and

further damages valued at Rs. 24,50,000/- before the learned Civil Judge

(Sr. Divn.) 3

rd

Court at Alipore, South-24-Parganas being Title Suit No.

39 of 2003 thereafter renumbered as 615 of 2016 praying for

a) Decree for specific performance of contract dated 15.05.2002 against

the defendant calling upon the defendant to execute and register the

deed of conveyance in favour of the plaintiff in respect of the suit

property on receipt of the balance consideration and failing which to get

the deed of conveyance executed and registered through court

according to law on deposit of balance consideration money,

b) Decree for recovery of vacant possession of the suit property,

c) Decree of permanent injunction restraining the defendant from

transferring , alienating and encumbering the suit property,

d) Alternatively a decree for damages and further damages for breach of

contract,

e) For cost,

f) For interim injunction,

g) For such other relief or reliefs which the plaintiff is entitled in law and

equity.

The defendant contested the said suit by filing written statement.

Through the written statement the defendant has controverted and

denied the contentions of the plaintiff made in the plaint.

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On the basis of the contentions raised by the parties to the suit the

following issues have been framed. Those are as follows:

ISSUES

1) Is the suit maintainable in its present form in law ?

2) Is there any cause of action to file the present suit ?

3) Is the agreement dated 15.05.2002 still subsisting ?

4) Is the plaintiff ready and willing to comply the terms of

said agreement?

5) Is the plaintiff entitled to the decree of specific

performance of contract as prayed for ?

6) To what other relief/reliefs the plaintiff is entitled to ?

The plaintiff himself namely Chandranath Dutta has adduced

evidence. He has been cross-examined at length.

On behalf of the plaintiff the following documents have been

exhibited :

I) Exhibit 1- Agreement for sale dated 15.05.2002.

II) Exhibit 2- Passbook in respect of a joint savings bank account of the

plaintiff (Chandranath Dutta) and his wife (Anindita Dutta) in the UCO

Bank Bowbazar branch, account No. 5983.

III) Exhibit 3- A letter dated 04.06.2003 issued by a learned Advocate

representing the defendant /respondent namely Sanchayita Chaudhuri

addressed to the plaintiff.

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IV) Exhibit 4- Photo Copy of a letter dated 16.06.2003 issued by Messrs

C. Kar the learned Advocate of the appellant.

On behalf of the defendants Amit Mazumder the constituted

attorney of the defendants /respondents has adduced evidence.

The witness has proved the following documents which are as

follows:

a) Exhibit A – General Power of Attorney dated 11.04.2016 issued

by Smt. Dhira Mazumder in favour of Amit Mazumder.

b) Exhibit B – General Power of Attorney dated 28.10.2015 issued

by Sri Abhra Mazumder in favour of Dhira Mazumder and Amit

Mazumder.

c) Exhibit C – Original Aadhar card of Dhira Mazumder, Abhra

Mazumder and Amit Mazumder.

d) Exhibit D – Cheque No. 211877 dated 15.05.2002 issued in the

name of Smritimoy Mazumdar amounting Rs. 2,00,000/- issued by

Indranath Dutta and Chandranath Dutta partners of Sani Trust.

After taking into consideration both oral and documentary

evidence relied upon by both the parties the learned Trial Court has

dismissed the suit on contest which is the bone of contention in the

present first appeal.

Submissions of the Ld. Counsels

3. Mr. Kar, learned Senior counsel for the appellant during his

exhaustive argument has placed the following:

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i. That earnest money of Rs. 2,00,000/- have been paid by the

plaintiff/appellant which has been mentioned in the agreement for

sale under the heading “Memo. of consideration” wherein it has

been mentioned that the vendor namely Smritimoy Mazumder has

received Rs. 2,00,000/- from the within named purchaser being

the part payment of the consideration money in the following

manner that is by a cheque of the Standard Chartered Bank

account No. 211877 dated 15.05.2002.

ii. He has further submitted that through the agreement for sale it

has been admitted that the vendor agrees to sale and the

purchaser agrees to purchase all that the land with the building

being premises No. 154C, Rashbehari Avenue, P.S. Lake, Kolkata

more fully and particularly described in the schedule free from all

encumbrances subject to the approval of title by the vendor’s

advocate for the price of Rs. 19,50,000/-.

iii. Ld. Senior Counsel has placed before the Court Section 54 of the

Transfer of Property Act and has highlighted that the sale is a

transfer of ownership in exchange for a price paid or promised or

part paid and part promised.

iv. He has also brought to the notice of the Court Section 49 of the

Registration Act, 1908 and has submitted that no document

required by Section 17 of the said act or by any provision of the

Transfer of Property Act, 1882 to be registered shall affect any

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immovable property comprised therein or confer any power to

adopt or be received as evidence of any transaction affecting such

property or conferring such power, unless it has been registered

provided that an unregistered document affecting immovable

property and required by this act or the Transfer of Property Act,

1882 to be registered may be received as evidence of a contract in

a suit for specific performance under Chapter II of the Specific

Relief Act, 1877 or as evidence of any collateral transaction not

required to be effected by registered instrument. Thus pressing

upon the issue that though the present agreement for sale being

unregistered can be taken into consideration under the Specific

Relief Act.

v. The Ld. Senior Counsel has further submitted that though the

agreement for sale is an unstamped one but it can be taken into

consideration and has stressed upon the issue that the said

document has been marked exhibit without any objection.

vi. The Ld. Senior Counsel has brought to the notice of the Court the

averment made by the defendant through his written statement

that the defendant has entered into an agreement on 15.05.2002

for the sale of premises No. 154C, Rashbehari Avenue, Kolkata -

700029 for a total consideration of Rs. 19,50,000/- only to the

plaintiff.

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vii. He has further relied upon the contention that before the

execution of the agreement it was agreed between the parties that

the plaintiff would pay a sum of Rs. 2,00,000/- as earnest money

and the plaintiff had handed over an account payee cheque of

Rs. 2,00,000/- at the time of execution of the agreement.

viii. The Ld. Counsel during his argument has relied upon a judgment

of this Court in the case between A.E.G. Carapiet Vs. A.Y.

Derderian published in 1960 SCC Online Calcutta 44 and

has relied upon Paragraph 9 of the said judgment. The Ld. Senior

Counsel has stressed upon the issue that wherever the opponent

has declined to avail himself of the opportunity to put his

essential and material case in cross -examination, it must follow

that he believed that the testimony could not be disputed at all.

He has further submitted that no suggestion was placed before

the prosecution witness as regard to the issue of request not to

encash the cheque and instead bank draft is to be paid. Relying

upon the said judgment the Ld. Senior Counsel has emphasised

that the respondent did not cross-examine the prosecution

witness during his deposition as regards to the issuance of the

cheque of Rs. 2,00,000/- as earnest money by the Sani Trust, so

it signifies that the defendants/respondents have accepted the

same as there has not been any cross-examination of the PW1 on

this aspect.

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ix. The Ld. Counsel has further placed before the Court the letter

dated 16.06.2003 issued by Messrs C. Kar Solicitors and

Advocates on behalf of the appellant/plaintiff and has emphasised

on the point that the appellant/plaintiff was always ready and

willing to pay the amount agreed to be paid under the agreement

and has thus stressed upon the point that the appellant /plaintiff

was always ready and willing to pay the remaining consideration

amount.

Banking upon the aforementioned submission the Ld. Counsel

has emphasised time and again that the appellant/plaintiff was

always ready and willing to perform his part as such the

impugned judgment of dismissal of the prayer of specific

performance of contract is ought to be reversed and the present

appeal is to be allowed.

4. Per contra, Mr. Banerjee the learned Counsel representing the

respondents/defendants has controverted the submission made on

behalf of the appellant by submitting the following:

i. The learned counsel has submitted that the agreement for sale

was between two persons that is Smritimoy Mazumdar the

vendor on the one part and Mr. Chandranath Dutta the

intending purchaser on the other.

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ii. He has thereafter submitted that the cheque for earnest money

was issued by two partners (Indranath Dutta and

Chandranath Dutta ) of a partnership firm namely Sani Trust.

iii. He has also submitted that the defendant/respondent/ vendor

had never entered into an agreement with a trust or

partnership firm instead had entered into an agreement with a

person namely Chandranath Dutta. So the issuance of cheque

for earnest money by the two partners is nothing but utter

violation of the agreement for sale.

iv. The learned counsel has further submitted that Section 17 of

the Registration Act, 1908 clearly states in detail that non-

testamentary instrument which purport or operate to create,

declare, assign, limit or extinguish whether in present or in

future any right, title or interest whether vested or contingent,

of the value of one hundred rupees or upwards, to or in

immovable property shall be registered. He has further

submitted that the present agreement for sale is an

unregistered and unstamped agreement (on a stamp paper of

Rs. 10/-) for sale as such the same cannot be relied upon and

cannot be made a basis for specific performance of contract.

v. The Ld. Counsel has further submitted that the plaintiff

appellant/ purchaser was never ever ready and willing to play

his part to give effect to the agreement for sale. In this regard

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the Ld. Counsel has placed before the court the savings bank

account in the name of the appellant/plaintiff and his wife

and has brought to the notice of the court that during the entire

period between the agreement for sale till the filing of the suit or

thereafter that is till 20.02.2004 the plaintiff /appellant did not

have the requisite amount of money which was required for the

payment of consideration amount. So the Ld. Counsel has

submitted that the intending purchaser /appellant was never

ever ready and willing to give effect to the agreement for sale.

vi. As regards to the issue of willingness to give effect to the

agreement for sale the learned advocate has further submitted

that the intending purchaser was never willing to give effect to

the agreement for sale. He has submitted that in the agreement

for sale it has been mentioned that the balance consideration

money will be paid within eight months from the date of

execution of the agreement and/or at the time of the execution

and registration for the necessary conveyance for sale and the

vendor will be bound to effect registration of the deed of

conveyance at the cost of the purchaser immediately after the

execution of the deed of conveyance within such time of eight

months.

vii. The Ld. Counsel has placed the letter issued by the Ld.

Advocate representing the intending purchaser and submitted

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that the said letter has been issued on 16.06.2003 that is after

more than a year from the date of agreement for sale dated

15.05.2002. Stressing upon this point the Ld Counsel has

reiterated that the intending purchaser was never ready and

willing to perform his role as regards to the performance of

contract. In this regard the Ld. Counsel has relied upon a

judgment of the Hon’ble Apex Court in the case between

Mohammed Khaleel (D) Through Lrs and Others Vs.

Jayamma reported in 2026 SCC Online SC 1191 and has

relied upon Paragraphs No. 30 and 35 of the said judgment. He

has submitted that the term ‘readiness’ refers to the financial

capacity and the term ‘willingness’ reflects the conduct and

intention of the party seeking the relief to perform the contract.

He has further submitted that financial readiness should be

during the relevant period that is from the date of the

agreement till the filing of the suit.

viii. The Ld. Counsel has further submitted that though it is not

mentioned in the agreement for sale that time is not the

essence of the contract but it is fact that in the said agreement

for sale eight months had been mentioned, it signifies that time

was the essence of contract.

Banking upon the aforementioned submission the Ld. Counsel

has reiterated that the intending purchaser/appellant had

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never been ready and willing to perform his part of the contract

and as such the appellant/plaintiff is not at all entitled to the

prayer sought for by him as regards to specific performance of

the contract. Thus the Ld. Counsel has submitted that the

impugned judgment dismissing the prayer for specific

performance of the contract passed by the Trial Court is correct

and is not to be interfered with.

5. From the submission of the Ld. Counsels it transpires that the

following points are required to be considered which are as follows:

i) Whether the agreement for sale dated 15.05.2002 though being

not properly stamped and unregistered can be taken into

consideration for the purpose of specific performance of contract?

ii) Whether the plaintiff /appellant is entitled to have a decree of

specific performance of contract ?

Analysis

6. Regarding point No.1:

Whether the agreement for sale dated 15.05.2002 though being not

properly stamped and unregistered can be taken into consideration

for the purpose of specific performance of contract?

As regards to the first point, it is fact that Section 54 of the Transfer of

Property Act lays down the definition which is as follows:

“54. “Sale” defined.—

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"Sale” is a transfer of ownership in exchange for a price paid

or promised or part-paid and part-promised.

It also lays down how sale can be made.—Such transfer, in

the case of tangible immoveable property of the value of one

hundred rupees and upwards, or in the case of a reversion or

other intangible thing, can be made only by a registered

instrument. In the case of tangible immoveable property of a

value less than one hundred rupees, such transfer may be

made either by a registered instrument or by delivery of the

property. Delivery of tangible immoveable property takes place

when the seller places the buyer, or such person as he directs,

in possession of the property.

As regards to contract for sale it has been laid down.—A

contract for the sale of immoveable property is a contract that

a sale of such property shall take place on terms settled

between the parties. It does not, of itself, create any interest in

or charge on such property.”

To have a clear picture as regards to registration of a document the two

sections that is Section 17 and Section 49 of the Registration Act are to be read

conjointly.

Section 17(1) of the Registration Act, 1908 states the following:

“17. Documents of which registration is compulsory.

(1)The following documents shall be registered, if the property to

which they relate is situate in a district in which, and if they have been

executed on or after the date on which, Act XVI of 1864, or the Indian

Registration Act, 1866, or the Indian Registration Act, 1871, or the

Indian Registration Act, 1877, or this Act came or comes into force,

namely,

(a)instruments of gift of immovable property

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(b)other non-testamentary instruments which purport or operate to

create, declare, assign, limit or extinguish, whether in present or in

future, any right, title or interest, whether vested or contingent, of the

value of one hundred rupees and upwards, to or in immovable

property;

(c)non-testamentary instruments which acknowledge the receipt or

payment of any consideration on account of the creation, declaration,

assignment, limitation or extinction of any such right, title or interest;

and

(d)leases of immovable property from year to year, or for any term

exceeding one year, or reserving a yearly rent;

(e)[non-testamentary instruments transferring or assigning any decree

or order of a Court or any award when such decree or order or award

purports or operates to create, declare, assign, limit or extinguish,

whether in present or in future, any right, title or interest, whether

vested or contingent, of the value of one hundred rupees and upwards,

to or in immovable property:] ”

Section 49 of the Registration Act, 1908 lays down as follows:

“49. Effect of non-registration of documents required to

be registered.

- No document required by section 17 [or by any provision of the

Transfer of Property Act, 1882] to be registered shall

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such

property or conferring such power, unless it has been

registered:

[Provided that an unregistered document affecting immovable

property and required by this Act, or the Transfer of Property

Act, 1882, to be registered may be received as evidence of a

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contract in a suit for specific performance under Chapter II of

the [Specific Relief Act, 1877], or as evidence of any collateral

transaction not required to be effected by registered

instrument.]”

Thus, as per Section 49 of the Registration Act, 1908 unregistered

agreement for sale can be received as evidence of a contract in a suit for

specific performance.

Insofar as the issue of the agreement being insufficiently stamped

is concerned, despite the defendants having not raised any specific

objection in that regard at the time of exhibiting the same, it was the

duty of the Court to ensure that proper stamp duty is paid before

passing a decree on the basis of the agreement.

However, this deficiency could be cured by the Court by directing

impoundment of the agreement before passing the final decree. Thus,

mere insufficiency of stamp could not be an insurmountable

impediment in passing a decree of specific performance of the

agreement.

So the agreement for sale dated 15.05.2002 can be taken into

consideration in this present lis though being an unregistered and

insufficiently stamped one.

7. Regarding point No.2:

Whether the plaintiff /appellant is entitled to have a decree of specific

performance of contract ?

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From the said agreement for sale it transpires that the total

consideration amount for sale of the suit property was agreed at

Rs. 19,50,000/- and for the sake of argument if it is taken into

consideration that Rs. 2,00,000/- had been paid as earnest money so

the remaining amount of Rs. 17,50,000/- ought to have been paid by the

intending purchaser/appellant. From the Exhibit-2 that is the statement

of accounts in respect of the joint savings bank account, in the name of

Chandranath Dutta (appellant) and his wife (Anindita Dutta), in the UCO

Bank Bowbazar branch, it transpires that since the date of agreement

for sale that is 15.05.2002 till 20.02.2004, that is beyond the date of

institution of the suit filed during the year 2003, the appellant /plaintiff

did not ever have sufficient amount that is Rs. 17,50,000/- in the bank

account. The appellant himself has produced this bank account and has

proved and exhibited the same, apart from this the appellant has not

proved any other bank account.

On behalf of the appellant it has also not been argued that the appellant

had been arranging for any loan from any bank or any institution.

So it transpires that the appellant was not ready to pay the balance

consideration amount of Rs. 17,50,000/- to the vendor during the entire

period extending from the date of execution of agreement for sale till the

institution of the suit.

If a person is not having sufficient fund at his disposal then in spite of

his willingness the said person cannot perform the act which he intends

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to perform. In this case the appellant /plaintiff even for the sake of

argument if it is taken into consideration that he had the willingness to

purchase the property he did not possess the capacity to purchase the

same as such the issue of readiness goes against the intending

purchaser herein the appellant/plaintiff .

As regards to the issue of willingness, in this present case the intending

purchaser/appellant/plaintiff issued a letter through his Ld. Advocate

which has been dated 16.06.2003 stating that the appellant /plaintiff is

ready and willing to pay the amount agreed to be paid under the

agreement but in view of the attitude displayed by the respondent

/defendant the appellant/plaintiff has been advised to file the suit for

specific performance of the contract. So during the entire period of eight

months since the execution of the agreement for sale the

appellant/intending purchaser never showed his willingness to perform

his part of the contract. On the contrary it is through the letter dated

16.06.2003 the appellant has expressed about his willingness to pay the

agreed amount and in addition to that has stated that the appellant has

been advised to file a suit for specific performance of the contract.

So since the date of agreement for sale till eight months thereafter or

thereafter the appellant/intending purchaser was neither ready nor

willing to play his part to give effect to the fulfilment of the agreement for

sale. In this context this Court relies upon Paragraphs 29, 30 and 37 of

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the judgment of the Hon’ble Apex Court passed in the case of

Mohammed Khaleel (supra) which states as follows:

“The Statutory mandate of ‘readiness and willingness’

and its continuing nature

29. The relief of specific performance is one based on

equity for enforcing contractual obligations undertaken by the

parties. Section 16(c) of the Specific Relief Act, 1963 (as it

stood prior to the amendment dated 01.10.2018) required the

person seeking specific performance to 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.

30. The term ‘readiness’ refers to the financial capacity, and

the term ‘willingness’ reflects the conduct and intention of the

party seeking the relief to perform the contract. Thus, both

these conditions cumulatively have to be seen for making out a

case of specific performance.

37. In the present case, there is no material whatsoever to

show that the appellant/plaintiff had the balance sale

consideration available either at the time of execution of the

agreement, within the stipulated period of four months for

performance of the contract, or even at the time of filing of the

suit in the year 1993. Thus, in our view, the High Court has

rightly observed that the availability of funds must be proved

with reference to the relevant point of time and not by relying

upon financial documents generated long after the filing of

the suit.”

So this point of readiness and willingness as regards to the performance

of the contract for sale goes against the appellant as from his statement

of accounts it is apparent that he did not possess the consideration

amount during the relevant period and it is also not the case of the

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appellant that he had made arrangement for any financial assistance

from any bank or any financial institution.

8. Conclusion

In view of the above findings this Court does not find any error as

regards to the inference reached at in the impugned judgment and decree

whereby the Ld. Trial Judge has dismissed the suit on contest thereby

refusing to grant specific performance of the agreement dated

15.05.2002.

Accordingly FA 102 of 2023 is dismissed on contest thereby

affirming the impugned judgment and decree dated 18.12.2021 passed

by the Ld. Civil Judge (Sr. Divn.) 3

rd

Court, Alipore, South-24 Parganas

in Title Suit No. 615 of 2016 ( Sl. No. 39 of 2003).

There will be no order as to costs.

I Agree,

(Sabyasachi Bhattacharyya, J.)

(Supratim Bhattacharya, J.)