Herumbo Kumar Roy and Ors. Vs. Noresh Chandra Roy and Ors.

Source: LEX/BDHC/0466/2024

Case Reference/Source: Civil Revision No. 4627 of 2011

Decided on: 14.03.2024

Relevant Laws:

Key Takeaways:

Agreement was hopelessly time-barred and without challenging or asking for cancellation of the said deed instant suit was filed for simple Specific Performance of Contract, accordingly the instant suit apparently is not filed properly and is not maintainable to its present form.

Facts of the Case:

The plaintiffs filed a suit for specific performance of contract, claiming that on March 10th, 1993, defendant No. 1 agreed to sell them the suit land for Tk. 2,500, received the full amount, and executed a sale deed that could not be registered due to his abdominal pain. The next day, defendant No. 1 delivered possession of the land to the plaintiffs and repeatedly assured them that registration would be completed later. Relying on his assurances, the plaintiffs continued to possess the land in good faith. On July 6th, 2008, defendant No. 1 executed a registered kabala deed in favour of pro forma (made or done as a formality) defendant No. 3, who on the following day asked the plaintiffs to vacate the land. The plaintiffs claimed this sale was illegal and filed Other Class Suit No. 71 of 2008 seeking enforcement of the 1993 agreement. Defendant No. 1 admitted signing a document and receiving Tk. 2,500 but maintained that the actual sale price was Tk. 15,000, that the plaintiffs failed to pay the balance, and that he later sold the property for need of money to defendant No. 3 for Tk. 15,000, who took possession under a registered deed dated July 6th, 2008. The trial court decreed the suit in favour of the plaintiffs on January 19th, 2010. However, the appellate court (Joint District Judge, Nilphamari), by judgment dated September 11th, 2011, reversed the decision, declaring the suit barred by limitation and not maintainable, as the plaintiffs neither sought cancellation of the subsequent registered sale deed nor challenged its validity.

• Judgment:
• 
  

• Upon revision, the High Court Division upheld the appellate court’s findings that the 1993 agreement was hopelessly time-barred and is not executable since as per law for execution of the deed of agreement, suit ought to have been filed within 3 years, and due to amendment the petitioner got further one year. But the petitioner filed the suit after 15 years of its execution and without challenging or asking for cancellation of the said deed instant suit was filed for simple Specific Performance of Contract, accordingly the instant suit apparently is not filed properly and is not maintainable to its present form. However the appellate court being the last court of fact has rightly found that the suit is barred by limitation.
• Accordingly, the Rule was discharged, the appellate court’s judgment and decree affirmed, and the previous stay order recalled and vacated.