Mohammad Riaj uddin
LL.B(Hon's)
18th Batch
Department of Law
Southern University Bangladesh
In the Court of
1st Joint District Judge, Chittagong
Other Suit No-
96/2013
Md.Rezaul
karim
S/o:
Md.Rafique
331,
Khatunganj, Kotwali, Chittagong
…..………………………………………………….plaintiff
Vs
Md.
Ushain
S/o Rahim
Ali
Babysuper
Market, Mubarok Vhila, P.S: Panchlish,Chittagong
………………………………………………..Defendant
Argument on behalf of the defendant
Your
honour, the defendant’s case in short is that the defendant and plaintiff were
engaged in business in shops side-by-side at Khatunganj, Chittagong. There was
a friendly relationship between them. On 08-04-2013 the plaintiff came to the
defendant shop and invested 1, 00,000/- Tk. to include him in the construction
business of the defendant. At first defendant refused the request of the
plaintiff but after repeated requests 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. Fearing to the malpractice of the blank stamps the defendant filed a G.D.
No. 40/2013 in the nearest Panchlish Police Station on 05-05-2013. The
defendant further came to know that the plaintiff had converted a blank stamp
into forged contract for sale deed.
Your
Honor, on the other hand plaintiff’s case in short is that the defendant
borrowed money of 10, 0000/= lakh from the plaintiff and for paying above money
defendant issued a bearer cheque of 1 lakh. But that cheque No.1212 was dishonored
in the United Commercial Bank Ltd. at Khatunganj on 09.04.13 for insufficient
balance. Later on the plaintiff requested to the defendant to pay 10, 00, 00
lac Tk. In response paid 50,000/- Tk. in cash and the rest fifty thousand taka
remained unpaid. The defendant proposed the plaintiff to buy the scheduled land
which was owned by defendant’s father. Subsequently, the plaintiff agreed to
purchase it and the suit land was valued at the 10, 00000/= lac. The defendant denied
the contract for sale deed after expiration of six month. The plaintiff
requested the defendant in several times to receive the rest five lakh taka and
to execute a registered sale deed of the schedule land in the name of the
plaintiff. But defendant did not pay heed to the request.
Corroboration
Your
honor, the defendant said that at the time of examination-in-chief there was a
friendly relationship between the plaintiff and defendant when they were engaged
in business at Khatunganj and it was strongly corroborated with written
statement and D.W.2
Your
honor, the defendant in his examination-in-chief said that the defendant was
engaged in construction business and it was corroborated by D.W.2, D.W.3 and
D.W.4
Your
honor, the defendant said in his examination-in-chief that the plaintiff
proposed to the defendant to include him in the construction business and it
was strongly corroborated by D.W.2, D.W.3 and D.W.4.
Your
honor, the defendant said that the plaintiff lent an amount of taka one lac to
the defendant on 08.03.13 and out of this one lac defendant refunded taka fifty
thousand in cash on 08.04.13 and it was strongly corroborated by D.w.2, D.w.3
and D.W.4
Your
honor, the defendant said that at the time of lending the taka one lac, the
plaintiff received two blank stamps signed by the defendant and it was
corroborated by D.W.2, D.W.3 and D.W.4.
Your
honor, the defendant said that the plaintiff made a forged agreement for sale
regarding the suit land by using one of the two blank stamps on 25.06.13 and it
was strongly corroborated by D.W.2, D.W.3 and D.W.4.
Your
honor, at the time of examination-in-chief and cross examination the defendant
admitted that the schedule land of the suit purchased by his father and R.S
Khatian and B.S Khatian and Title deed of the schedule land was stated in his
father’s name.
Contradiction
Your
honor, it is an important matter that in cross examination P.W. 2
told that the defendant proposed the plaintiff to sale the schedule land at 2
pm at the plaintiff’s shop. But the plaintiff told that the defendant proposed
the plaintiff to sale the schedule land at plaintiff’s house at 11 am which is
fully contradictory with the plaintiff’s statement and P.W.2.
Your
honor, it is an important matter that in-cross examination P.W.3 told that a
registered contract for sale was executed on 08.05.13 at 5pm in the absence of
the Registrar. But the plaintiff told that in Examination-in-chief a registered
contract for sale deed was executed on 08.05.13 at 2pm in the presence of
Registrar which is also contradiction between P.W.3 and plaintiff.
Your
honor, in cross examination P.W.3 told that a Registered contract for sale deed
no. 1000/13 was signed and executed on 09.05.13. But in examination-in-chief
the plaintiff said that the registered contract for sale deed was signed and executed
on 08.05.2013. There was a contradiction between the statement of P.W.3 and plaintiff.
Your
honor, in examination-in-chief the plaintiff told that the owner of the
schedule land of the contract is the defendant himself but in cross-examination
the plaintiff told that the schedule land of the contract is defendant’s father
which is strongly contradictory with his statement and the plain.
Your
honor, in examination-in-chief the plaintiff told that the defendant gave a
cheque being No.1212 on Tuesday on 09.04.13. But in cross-examination the P.W.2
told that the defendant gave that cheque on Monday on 09.04.13 which is strongly
contradictory with the plaintiff and P.W.2.
Your
honor, in examination-in-chief and cross-examination the plaintiff told that
the plaintiff sent the legal notice on 08.08.13 by post but that day was closed
by Eid-ul-fitar as a public holyday which is strongly contradict with his
statement and P.W.4
Your
honor, in examination-in-chief and cross-examination the plaintiff told that
the schedule land situated at Khatunganj Muja but in cross-examination P.W. 4
told that it situated at Andarkillah Muja which fully contradict with plaintiff
and P.W.4.
I
have already produced and exhibited all the relevant evidence before the
learned court.
These
are …………………
1.
Copy of G.D
2.
Copy of R.S khatian
3.
Copy of B.S khatian
4.
Copy of Title deed
5.
Certified copy of purchase deed
As
exhibited No: 1(a), 1(b), 1(c) and 1(d), 1(e)
Your
honour, section 53-C under Transfer of Property Act implies that- no immoveable
property shall be sold by a person unless his name, if he is the owner of the
property otherwise than by inheritance or his name or the name of his
predecessor, if he is the owner of the property by inheritance appears in
respect of the property in the latest Khatian prepared under the State
Acquisition and Tenancy Act 1950 and any sale made otherwise shall be void.
Your
Honour, Section 21 (d) under Specific Relief Act implies that-
If
a contract is naturally revocable it cannot be specifically enforced. I would
like to draw a precedent case in this regard.
In Editor and Publisher
and others
Vs.
Dhaka Sanghbadpotra
Howkers Bahumukhi Samabaya Somittee Ltd.1
BLC 433:
It
was held that- A contract cannot be specifically enforced which is in its
nature revocable.
Your
honor, section- 25 under Specific Relief Act implies that-
A
contract for the sale or letting of property whether moveable or immoveable
cannot be specifically enforced in favor of a vendor or lessor if he has no
title to the property.
I
would like to draw a precedent case in this regard.
In Bajrang Lal vs. Akshed Ali 35 DLR 110
It was held that – Contract for sale cannot be enforced in favour of a vendor when he knew that he had no title to the land to be sold.
The leading case reference of section- 42 of Specific Relief Act is
Prasanna Kumar VS. Mathura Nath 8 DLR Ap. 26 WR 447
A suit for a declaration that the execution of a registered document has been obtained fraudulently by putting the executant under duress that it is not genuine and is invalid and inoperative is maintainable.
The
leading case reference of section 39 is 1
story’s eq. 694:
The form of specific
relief provided in section 39 of the Act is founded on the administration of a
protective justice for fear either that the instrument may be vexatiously or
injuriously used against defendant by making fraud the court may cancel the
document.
The
leading case reference of section-22 of Specific Relief Act is
Tajul
Islam vs Siraj miah 3 BLC 393
It
was held that- the court is not bound to grant a decree even if the contract is
proved if it is found that the plaintiff has not come to the court with clean
hands.
Your
honour, the plaintiff is not entitled to get remedy because he failed to prove
genuinety of the contract for sale deed. That’s why the plaintiff will not get
any remedy which are stated in para-10 of the plaint.
Your
honour, In my opinion I firmly believe that I have successfully proved the suit
on behalf of the defendant by giving all types of oral evidence and documentary
evidence which are relevant.
Considering
all facts, circumstances and witnesses, your honour would be gracious to
dismiss the suit with cost and for which act of kindness this defendant shall
ever pray.
That’s all your honor.
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