FMA/65/2025 of SUBHABRATA PAUL CHOUDHURY Vs IMRAN HOSSAIN BISWAS on 29 July 2026

1. CAN 4 of 2026, is an application for recalling of the order dated July 22, 2026 passed in FMA 65 of 2025 and CAN 1 of 2025. The operative portion of the order is quoted below:- “1. The office is directed to return the demand draft deposited in this case to the learned Advocate-on-record for the respondent within this week on the strength of this order.

2. The respondent will transfer the amount of Rs. 50 lakhs to the account of the appellant within days thereafter.

3. List this matter on 29th July, 2026 at 10.30 a.m.”

2. The matter has a chequered history. Aggrieved by an order of temporary injunction in the nature of status quo dated February 10, 2025, passed by the learned trial Judge in Title Suit No. 98 of 2024, the appeal has been filed. The suit was filed for specific performance of an agreement for sale of landed property. An injunction application was moved, which was disposed of by the learned trial Judge on contest, thereby, directing the parties to maintain status quo with regard to the land in question.

3. The appellant urged that the respondent did not have any inclination to honour the contract. The money that was advanced was refunded to the respondent. The respondent was supposed to take certain steps and pay the consideration money at certain intervals, which he has failed to do. On such grounds, it was alleged that the order of injunction was harsh and caused irreparable loss and injury to the appellant. The appellant could not deal with the land, although the money that was received from the respondent had been returned. The appellant being a senior citizen and aged about 76 years, wanted to sell the property to third parties.

4. At the first instance, while deciding the application for injunction, a co-ordinate Bench wanted to test the bona fide of the respondent. The appellant had alleged that the respondent had all along proceeded in a mala fide manner and committed several breaches.

5. Accordingly, their Lordships directed that a demand draft of Rs. 50 lakhs should be drawn in favour of the appellant and deposited before the Registry of this Bench. Demand drafts worth Rs. 50 lakhs were deposited, but the said demand drafts were not prepared by the respondent. According to the appellant, such demand drafts were not prepared in compliance with the order of the co-ordinate Bench and as such prayer was made that the order of status quo should be immediately vacated. When we heard the matter on the last occasion, we were of the view that appellant‟s contention was correct. It would cause various difficulties if the appellant was asked to receive money worth Rs. 50 lakhs in their account, from some third parties, who were not parties to the agreement.

6. We heard the learned advocate for the respondent who submitted that the respondent was ready and willing to pay the money. The respondent offered to take back the demand drafts and transfer the amount to the account of the appellant from his own bank account. We permitted so.

7. Prior to our order, talks of compromise was going on and terms of compromise was filed in Court. An order was passed by another co-ordinate Bench. Thereafter, the respondent prayed for recalling of the order by which the appeal was directed to be disposed of on compromise. The said recalling application was allowed by yet another co-ordinate Bench vide order dated June 8, 2026. The respondent‟s contention before the learned co-ordinate Bench was that the appellant did not respond to the request of the respondent to take the demand drafts which were offered. In paragraph 8 of the order, Their Lordship recorded that the parties were ad idem that the appeal should be heard. Their Lordships also recorded that both parties admitted that an amount of Rs. 32 lakhs had been paid by the respondent to the appellant, which was lying with the appellant. Moreover, Their Lordships also recorded that Rs. 50 lakhs in total had been deposited with the Registry by way of demand drafts furnished by the respondent. The Division Bench in the order dated June 8, 2026 recorded that the respondent had sufficiently demonstrated willingness to go along with the contract.

8. The matter appeared before us. It was urged by the appellant that the demand drafts that were deposited, were issued by the third parties and as such those could not be accepted by the appellant. We permitted the respondent to take back the demand drafts and transfer the money from his personal account to the appellant.

9. It now appears that the appellant has blocked his account. The account is inoperative and our order has been frustrated. The bank‟s information is before us. It appears that five demand drafts were returned to the appellant by the Registry as per our direction. The respondent had sought to transfer the amount of Rs. 50 lakhs by RTGS from his own account, but the said amount could not be transferred because the beneficiary account (account of the appellant) was inactive and/or blocked as per information given by the bank. In an appeal from an order of injunction, the Division sought to balance the equities. Thus, the respondent was directed by us to transfer a further sum of Rs. 50 lakhs to the account of the appellant, over and above the amount of Rs. 32 lakhs which the appellant was already holding. Such order is sought to be recalled by filing CAN 4 of 2026.

10. CAN 4 of 2026 is dismissed, as we are not convinced that our order is required to be recalled. We proceed to hear the appeal on its own merits.

11. The appeal arises out of an order of injunction dated February 10, 2025, passed in Title Suit No. 98 of 2024, by the learned Civil Judge (Senior Division), Siliguri. An agreement for sale was entered into between the parties on October 9, 2023. The suit property, more fully described in Schedule A of the plaint, was agreed to be transferred by the appellant to the respondent on certain terms and conditions. Schedule A is quoted below:- “SCHEDULE OF LAND All that piece or parcel of land measuring about measuring 53.25 Decimals, included in and forming part of L.R. Khatian No.203 & 208, L.R. Plot No. 463, within Mouza Rajpouri, J.L No. 24, P.S. Matigara, Dist. Darjeeling, Sub-division Siliguri, Addl. Sub- registry office Siliguri II at Bagdogra, District Darjeeling.

THE land is butted and bounded by the following boundaries:- By the North: Land of Plot No.433, By the South: Land of Pusonath Singh, By the West: Land of Seller, BY the East: 30 ft. wide Anchal Road”

12. The plaint case is that, upon execution of the agreement a sum of Rs.10,05,000/- out of the total consideration amount of Rs.1, 25,00,000/- was paid by the respondent/plaintiff. Thereafter, intermittent payments were made by the respondent totaling to a sum of Rs.43 lakhs towards the consideration amount. Although the agreement provided that all the chain deeds and other documents of title and possession of the appellant would be provided to the respondent, the same were not provided and, as such, the time schedule for payment of the remaining amount of consideration money could not be adhered to.

13. The respondent alleged non- compliance and/or breach of the provisions of the contract. According to the respondent until and unless those documents were supplied by the appellant/defendant, clauses 10 and 11 of the agreement could not be invoked. Those clauses were subject to compliance of the prior clauses, i.e. clauses 3 and 4.

14. The respondent alleged that, suddenly a letter was received from the learned advocate of the appellant dated May 11, 2024, calling upon the respondent to pay the balance consideration money and proceed with the registration of the deed of sale, failing which the agreement shall be treated to be cancelled. The respondent replied to the said notice and specifically contended that, until and unless the documents as mentioned in clause 4 of the agreement were supplied and such clause was complied with by the appellant, the question of payment of the balance did not arise.

15. Thereafter, the suit for specific performance was filed by the respondent/plaintiff, and the prayer for injunction was made. The learned court, upon contested hearing, came to the finding that the plaintiff had a, prima facie, case to go for trial and the balance of convenience and inconvenience tilted in favour of the plaintiff. The learned court was of the view that the disputed questions which arose on the basis of the allegations and counter-allegations made by the respective parties, was a matter of trial. In the meantime, if the suit property was alienated or if the nature and character of the suit property was changed, the situation would become irreversible and, as such, the learned court, upon noting the conduct of the plaintiff, was pleased to grant an order of injunction in the nature of status quo.

16. The appellant has challenged this order on various grounds. First of such challenge being the failure of the learned court in appreciating that, without a consequential prayer for cancellation of the letter dated May 11, 2024, the suit was likely to fail. Thus, an order of injunction could not be passed in such a suit. Secondly, the hardship that the appellant would face if he could not deal with the property by virtue of an order passed in a frivolous suit, outweighed the suffering of the respondent/plaintiff. If the suit is decreed. It is urged that the plaintiff could be adequately compensated. The plaintiff also has an alternative prayer for recovery of money. The conduct of the plaintiff was not above board. He did not demonstrate any willingness to comply with his part of the obligations under the agreement. All relevant documents were supplied to the plaintiff, but the plaintiff still failed to meet the time line for making payment of the remainder of the consideration amount. Thus, the plaintiff committed several breaches, and as such, was not entitled to any equitable relief. Moreover, the appellant had refunded the money that was advanced by the plaintiff/respondent.

17. Reliance has been placed on the following decisions:- I.S. Sikandar (Dead) by Lrs. Vs. K. Subramani & Ors., reported in (2013) 15 SCC 27, Dalpat Kumar & Anr. Vs. Prahlad Singh &

Ors., reported in (1992) 1 SCC 719, Mandali Ranganna & Ors. Vs. T. Ramachandra & Ors., reported in (2008) 11 SCC 1.

18. It is submitted that the conduct of the plaintiff did not inspire any confidence, for the court to, prima facie, hold that the plaintiff was willing to perform his part of the contract. The plaintiff intentionally avoided payment on frivolous grounds and ultimately filed the suit which was harassive and vexatious. The plaint did not disclose any cause of action.

19. We have considered the rival contentions of the parties. Under the agreement, the appellant had agreed to sell the property to the plaintiff. This fact is not disputed. Clause 2 provides the schedule of payment. Clause 3 provides that the plaintiff was to take registration of the sale deed within four months from the date of supply of the chain deeds, the khatian, mutation certificate etc., by the appellant/defendant. Clause 4 provides that before the registration of the deed, photocopies of the chain deeds, mutation certificate, L.R. Khatian, Khazana receipt, panchayat tax receipt etc. were to be supplied to the plaintiff. Clause 10 provides that, if the first party refuses to register the deed the second party would have the right to take appropriate legal action against the first party and would be entitled to get interest @ 8% p.a. on the amount he paid to the first party. Clause 11 provides that if the second party (plaintiff) fails to register the deed within a reasonable time, the first party i.e. the appellant/defendant would have the right to cancel the agreement and deduct 10% from the advanced amount.

20. The specific plaint case is that clauses 3 and 4 were not complied with by the appellant. The plaintiff approached the court for specific performance of the agreement, when the defendant threatened to cancel the agreement if payment of the balance amount was not made within 15 days from the date of receipt of the letter dated May 11, 2024. Whether clause 4 was complied with or not, is a matter of trial. We do not find any document on record which will demonstrate that the defendant had handed over the deeds, mutation certificate, Khajna receipts, Panchayat tax receipts, etc. to the plaintiff, prior to issuance of the letter dated May 11, 2024. Thus, this aspect will have to be proved in evidence. The clauses of the agreement have to be read as they are. The question which arises now is whether the clause 11 could be invoked by the defendant without compliance of clause 4. Thus, the first finding of the learned court that the plaintiff has a prima facie case, cannot be treated to be perverse. The plaintiff admittedly transferred Rs.43,00,000/- to the defendant and the defendant unilaterally refunded the money without prior notice. The notice issued by the defendant on May 11, 2024, calling upon the plaintiff to make the payment of the remainder amount and proceed with the registration of the deed, was replied to by the plaintiff with counter-allegations of non-supply of documents. In reply the appellant denied such allegation. Thereafter, the suit was filed. Whether the prayers in the suit are inadequate for grant of the final relief, will be decided by the trial court and the plaintiffs can also amend their prayer and pleadings at the appropriate stages.

21. The specific finding of the learned court is that the letter dated May 11, 2024, did not amount to cancellation of the agreement to sell. We find that the respondent was asked by the appellant to pay up the money within 15 days and take registration of the deed, in default the appellant reserved the right to cancel the agreement without further reference. In our prime facie view, the expression „in default my client shall cancel the agreement without any further reference‟ means that the cancellation would be a future event. If the payment was not made as per the demand made in the letter, the appellant would proceed to cancel the agreement. The finding of the learned court is not perverse.

22. With regard to the hardship that the appellant would face, we are of the opinion that Rs.32,00,000/- have already been paid by the plaintiff, which the appellant is holding. We had directed the plaintiff to pay a further sum of Rs.50,00,000/- to the appellant. The appellants refused to accept such money, despite order of court by blocking their own bank account. The equities have been balanced. The appellant is already holding a sum of Rs.32,00,000/-, which shall be kept in an interest bearing amount and will be subject to final decision in the suit.

23. We also do not accept the contention of the appellant that, before the agreement was executed all the documents had been handed over. Had the documents been handed over, then clauses 3 and 4 of the agreement become redundant. It is well settled that every clause in an agreement or a contract has to be read as it stands. The court cannot add or subtract anything therefrom while interpreting the said clauses. The reply of the appellant also talks about handing over all the documents prior to execution of the agreement, but we have already held that such plea is subject to proof by leading evidence.

24. Under such circumstances, we are of the view that the balance of convenience and inconvenience is in favour of granting an order of status quo with some condition. The plaintiff has already invested in the property. The plaintiff also has shown readiness to pay further sum of Rs.50,00,000/- pursuant to our direction, but could not do so only because the account of the appellant was blocked or made inoperative. We understand that the appellant had a problem with regard to the plaintiff transferring money from different accounts belonging to third parties, but as per our direction the plaintiff attempted to transfer Rs.50,00,000/- to the appellant's account by RTGS from his own account, but could not do so.

25. Under such circumstances, we direct the respondent/plaintiff to maintain a balance of Rs.50,00,000/- in his account for a period of 6 months or until disposal of the suit whichever is later. The order of status quo is upheld, with the above conditions.

26. The decision in I.S. Sikandar (Dead) by Lrs. – versus – K. Subramani & Ors. Reported in (2013) 15 Supreme Court Cases 27 has been cited Mr. Chakraborty on the issue that, without a prayer for declaration that the termination of the agreement was bad in law, the suit was not maintainable and if the suit was not maintainable, the question of granting injunction did not arise. We have already expressed our, prima facie, view that the letter dated May 11, 2024 cannot be treated as the letter of termination of the agreement. Thus, the decision does not apply. With regard to the decision of Dalpat Kumar & Anr. – versus – Prahlad Singh & Ors. reported in (1992) 1 Supreme Court Cases 719, we find that the facts of the case are completely different. A suit for specific performance had been decreed ex parte and a sale deed was executed through court. Thereafter, a suit was filed and an injunction restraining dispossession was sought for by the respondent's wife. The said suit was also dismissed for non-prosecution and execution case was filed thereafter. The issue before the Hon‟ble Apex Court was whether under such facts and circumstances an injunction retraining dispossession could be granted. Having regard to all those facts and circumstances, it was the finding of the Hon‟ble Apex Court that, if compensation was an adequate remedy, in that event, injunction should be refused. What is important to be noted here is that, the person against whom such injunction was being prayer for, was already granted a decree for specific performance and deed of sale was executed through court. Thus, his right, title and interest in the said property was declared by the court. Under such circumstances, the Hon‟ble court was of the view that the case did not warrant issuance of an ad interim injunction, especially when the main injunction application was pending.

27. In this case, the injunction application has been disposed of on contested hearing and all the parameters required for grant of an order of status quo in the facts of the case. Moreover, in this case the appellant is in possession of the property.

28. Mandali Ranganna & Ors. – versus – T. Ramachandra & Ors. reported in (2008) 11 Supreme Court Cases 1, deals with the conduct of the parties and we have already discussed the conduct of the parties in this case and we are of the opinion that the conduct of the plaintiff is not, prima facie, questionable to the extent that the prayer for status quo must be refused.

29. The submissions of the defendant are all on the merits of the suit which shall be decided accordingly and independently without the court being influenced by the observations made hereinabove. As the suit is at the stage of framing issues, the learned trial court is requested to expedite the suit. The order impugned is modified.

30. Accordingly, the appeal and the connected application are disposed of.

31. Parties are directed to act on the basis of the server copy of this order.

(Shampa Sarkar, J.)

(Smita Das De, J.)