Argument of plaintiff on specific performance of Contract

       In The Court of 1^st Joint District Judge, Chittagong.

                                         Other suit no: 96/2013

                                        

 Md. Abdullah

                                       

 S/O: Late Abul Kalam

                                        

 331, Khatunganj, P.S: Kotwali, Chittagong.

........................................................... .........…….........................................   Plaintiff

                                                        

Vs.

                                          

Md. Ushain 

                                        

 S/O: Rahim Ali

                                         

 Babysuper Market, Mubarak villa, P.S:  panchlaish, Chittagong.

                                                                                          ..................................................................……………………………………Defendant                                    

 
ARGUMENTS ON BEHALF OF THE PLAINTIFF
 

Your honour, This is a other suit claiming specific performance of contract, the plaintiff’s case in short is that the plaintiff and the defendant were neighboring shop owner’s at Khatungonj, Chittagong. As fellow traders they had a sound relationship with each other. Meanwhile the defendant was facing a financial crisis and as a gesture of their friendship the plaintiff lent the defendant Tk- 1, 00,000/-(one lac) on 08/03/2013. On 09/04/2013 defendant issued bearer cheque no: 1212 in the name of the plaintiff to be enchased in UCBL, Khatungonj, and Chittagong. On   09/04/2013 the plaintiff placed the cheque in the above mentioned bank. But surprisingly the cheque was dishonored by the bank for insufficient fund. The plaintiff sent a legal notice to the defendant on 15/04/2013 to take back the cheque and refund the money. After repeated requests the defendant refund Tk= 50,000/-(Fifty thousand) in cash on 20/04/2013 and rest Tk= 50,000/-(Fifty thousand) unpaid.

On 29/04/2013 defendant proposed the plaintiff to purchase the schedule land given below which belongs to his land. The Plaintiff agreed to purchase the land and the land was valued of Tk= 10, 00,000/-(Ten Lac) and Tk= 500,000/-(Five Lac) was paid to the defendant as earnest money. In pursuance of which a registered contract for sale deed no: 1000, was executed between the plaintiff and defendant on 08/05/2013. It was also agreed that plaintiff would pay the balance of consideration money within six month from the date of above contract and the defendant agreed to execute a registered sale deed on receipt of the same in favour of the plaintiff. At the same time he handed over the plaintiff a true copy f the purchase deed of the land in his name and non encumbrance certificate regarding the schedule land. That the time limitation of six month has been elapsed. But the defendant refused to do so over phone 22/08/2013.

Your honour the defendant’s case in short is that the plaintiff and defendant were neighboring shop owner at Khatungonj and they had a friendly relationship with each other. On 08/03/2013 the plaintiff came to the defendant shop and invested Tk= 100,000/-(one lac) to include him in the construction business of the defendant. At first the defendant refused the request of the plaintiff but after repeated request by the plaintiff the defendant agreed to include him in order to give him an opportunity to gather experience. At the time of investing money the clever plaintiff took two blank stamps signed by the defendant. In those blank stamps the plaintiff created false contract for sale. Due to the malpractice of the blank stamps the defendant filed a GD no: 40 in the nearest panchlish police station on 05/05/2013.

                                                               Corroboration

Your honour, the plaintiff at the time of examination –in-chief and cross examination has admitted that there was a friendly relationship between the plaintiff and the defendant when they were engaged in business in adjacent shops at khatunganj which was stated in para-3 of the written statement.

Your honour, the plaintiff denied the statement made in para-4 of the written statement that plaintiff did not invest Tk= 100,000/-(One lac) on defendant’s construction business, rather the defendant borrowed an amount of Tk= 100,000/-(One lac) from the plaintiff to overcome his financial crisis. The defendant issued a bearer cheque for the payment of the above money. On 09/04/2013 the plaintiff deposited that cheque in the UCBL khatunganj, Chittagong. I have submitted the photocopy of the said cheque as exhibit no: 1.

Your honour, the plaintiff also admitted his examination-in-chief that on 09/04/2013 the cheque was dishonored by the above bank for insufficient balance. On 15/04/2013 the plaintiff sent a legal notice for paying above money. I have submitted the photocopy of that legal notice before the learned court as exhibit no: 2.

Your honour, the plaintiff has also admitted examination-in-chief that after receiving the legal notice defendant paid Tk= 50,000/-(Fifty thousand) and rest Tk= 50,000/- (Fifty thousand) remained unpaid.

                                                                   

                                             Contradiction

Your honour, at the time of examination-in-chief and cross examination the plaintiff admitted that, on 29/04/2013 the defendant proposed the plaintiff to buy the schedule land as given below purchase by the defendant and the plaintiff agreed to purchase it. On 08/05/2013 a registered contract for sale deed no: 1000 was executed between the plaintiff and the defendant. Where suit land was valued at Tk= 10, 00,000/-(Ten lac) out of which Tk= 500,000/-(Five lac) was paid to the defendant by the plaintiff as earnest money. At the same time the defendant handed over to the plaintiff RS Khatian and BS Khatian and non-encumbrance certificate of the schedule land in the name of the defendant.

I have submitted the photocopy of the contract for sale deed as exhibit no: 3 and the photocopy of RS Khatian and BS Khatian and non-encumbrances certificate as exhibit no: 4, 5 and 6.                                                                                                                    

Your honour, at the time of examination-in-chief and cross-examination the plaintiff admitted that, on 15/04/2013 had sent a legal notice to the defendant to execute a registered sale deed. But the defendant refused to do so over phone call on 22/08/2013.

Your honour, I have submitted the photocopy of the legal notice to the defendant as exhibit no:7.

Your honour, at the time of examination –in-chief and cross examination of the pw2, pw3 and pw4 corroborated the statement of the plaintiff.

Your honour, It is an important matter that in cross-examination DW2 told that on 08/02/2013 the clever plaintiff technically took signatures of the defendant on two blank stamps while depositing Tk= 100,000/-(One lac) to the construction firm of the defendant. But the defendant told in his statement that 08/03/2013 the plaintiff intentionally deposited Tk= 100,000/-(One lac) to include him in construction firm of the defendant. There is a contradiction between the statement of DW2 and the defendant.

Your honour, it is an important matter that DW3 is not acquainted with the facts of the case at all which is clear from his statement about the filing of GD on 05/05/2013. There is a contradiction between the statement of DW3 and the defendant.

Your honour, section 54A transfer of property Act 1882 implies that, contract for sale of any immovable property can be made only by an instrument in writing executed by the parties there to and must be registered. All these requirements are complied with the plaintiff.

Under section 12 of the specific Relief Act 1877 the plaintiff is entitled to specific performance of this contract because non-compliance of which will result irreparable to the plaintiff.

Your honour, as the contract was duly registered, now I would like to state some case decision in this regard.

In Md. Manjur Ahmed vs. Engr. Flatz 11 BLC 280.

It appears that the plaintiff has done his part as per the agreement and is also willing to repay the balance of consideration money with a view to getting the sale deed registered. In this circumstance the defendant is duly bound to perform his part as per section 12 of the Specific Relief Act 1877.

In Tajul Islam vs. Siraj Miah 3BLC 393.

In a suit for Specific performance of contract under section 22 of the Specific Relief Act 1877 the court was persuaded to pass a decree for Specific Performance of contract where the plaintiff came to the court with clean hand.

You honour, I have successfully produced all witness and submitted all relevant documents for consideration before the learned court under this circumstances I believe that plaintiff of this suit is entitled to get remedy of:

v A decree may kindly be passed directing the defendant to execute a registered sale deed in favour of the plaintiff in accordance with the contract for sale on 08/05/2013.

v A registered purchase deeds of the land though the Honorable Court on the defendant failure to company with court’s decree.

v That a decree be passed directing the defendant to pay compensation three times the contract money of the schedule.

v The cost of the suit to be decreed against the defendant.

v To grant such relief or relives as the learned Court thinks fit and proper in law and equity.

                                                            That’s all your honor.