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An older agreement will get terminated before a new agreement on the same subject-matter in case of contradiction

Citation : Smt. Sashi Jain @ Shashi Jain v. Sandip Sarkar, F.A. 55 of 2017

Date of Judgment/Order : 02-03-2022

Court/Tribunal : High Court Of Calcutta - Appellate Side

Corum: Soumen Sen & Ajoy Kumar Mukherjee J.

Background

The plaintiff/respondent being the landlord had filed a suit for eviction of the defendant/appellant before the Small Causes Court at Calcutta. During the pendency of the suit, the appellant agreed buy the said floor for a consideration of Rs.13 lakhs. The parties thereafter executed an agreement for sale wherein it was agreed th Rs.13 lakhs shall be paid in instalments within November, 2008 and a sum of Rs.5 lakhs shall be paid within March 2007 as a condition precedent. Till the entire consideration money is paid and the sale agreement is registered, the tenant had agreed to pay ‘occupancy charges’ at the rate of Rs. 2,000/- per month on and from January 2007 until payment of Rs.5 lakh and thereafter the ‘occupancy charges’ would get reduced by Rs.150/- per lakh. The plaintiff/respondent received Rs.40,000/- by cheque as the first installment. Admittedly, the balance consideration money was not paid. The defendant/appellant had also failed to make the payment of Rs.5 lakh within March 2007 as agreed between the parties. In view of such breach the plaintiff/respondent rescinded the said agreement and sued the defendant/appellant for recovery of possession.

The learned trial judge, on consideration of the evidence, held that by reason of the agreement for sale entered into between the plaintiff and the defendant, the relationship of landlord and tenant came to an end, and the plaintiff was entitled to sue the defendant for recovery of possession upon establishing his right.

The Defendant appealed before the High Court against the order of the Trial court, arguing that that the intention of the parties was to continue with the relationship of the landlord and tenant until the execution of the sale deed. The agreement was unregistered and never acted upon. The termination of the agreement does not, ipso facto, give right to the landlord to evict the tenant on the ground of surrender of tenancy.

Judgment

The question before the High Court was whether the relationship of landlord and tenant gets altered when an agreement for sale is signed.

The High Court agreeing with the Trial Court observed that there cannot be any iota of doubt that the parties have consciously entered into the agreement for sale thereby altering their respective status. The agreement for sale was entered to at a point of time when the earlier suit for eviction was pending.

The appellant was in possession of the suit property and the acceptance of Rs.40,000/- as earnest money by the landlord clearly shows that such acceptance was made in terms of the agreement for sale and all other payments received are in terms of the said agreement. When the plaintiff/landlord accepted the sum he actually acted under the agreement for sale. This acceptance was preceded by agreement of sale, changing their relationship and this was what they had actually intended. 

The parties who have acted in terms of the agreement for sale and altered their relationship consciously cannot now go back to their old relationship and seek relief in terms of such relationship. There is a clear and conscious act on the part of the appellant to surrender her right as a tenant to acquire a superior right of an owner of the second floor of the suit premises.

Whenever a certain relationship exists between two parties in respect of a subject-matter and a new relationship arises as regards the identical subject-matter the two sets of mutually contra relationships cannot co-exist as being inconsistent and incompatible, that is to say, if the latter can come into effect only on termination of the earlier that would be deemed to have been terminated in order to enable the latter to operate. [See: Velu v Lekshmi & Ors., reported in AIR 1953 TRAVANCORE-COCHIN 584]


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