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Depositing balance consideration in court is mandatory for filing suit

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29th-Jul-2017       
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Appellate Division
(Civil)

Md Abdul Wahhab Miah J
Md Imman Ali J
AHM Shamsuddin
Choudhury J

Abdul kalam (Md)
............................Petitioner
Md Mohiuddin and
others.............
................. Respondents*
Judgment
May 19th, 2015
Code of Civil Procedure (V of 1908)
Order VII, rule 11
Specific Relief Act (I of 1877)
Section 21A(b)
The deposit of the balance consideration of the contract before filing -a suit for specific performance of the contract is a condition precedent and that having not been done in the case, that suit was barred under section 21A(b) of the Act. The plaint was liable to be rejected under Order VII, rule 11 of the Code. . ..... (8)
Khair Ejaj Masud, Advocate instructed by Zainul Abedin, Advocate-on-Record-For the Petitioner.
Habibul Islam Bhuiyan. Senior Advocate instructed by Bivash Chandra Biswas, Advocate-on-Record-For Respondent No. 1.
Judgment
Md Abdul Wahhab Miah J : This petition for leave to appeal has been filed by the plaintiff against the judgment and order dated the 19th day of May, 2010 passed by a Single Bench of the High Court Division in Civil Revision No. 5887 of 2007 discharging the Rule.
2. The petitioner as the plaintiff filed Other Suit No. II of 2006 in the Court of Joint District Judge, 1st Court, Kishoregonj for specific performance of the contract.
3. Respondent No. I got him added as defendant No.2 and filed an application therein under Order VII, rules II of the Code of Civil Procedure for, rejection of the plaint mainly on the ground that the suit was barred under provision of section 17B of the Registration Act, 1908 and section 21A of the Specific Relief Act, 1877.
4. The application was objected by the plaintiff by filing written objection. The learned Joint District Judge by his order dated 30-9-2007 rejected the application. Against the order of the learned Assistant Judge, the defendants filed Civil Revision No 5887 of 2007 before the High Court Division and obtained the Rule.
5. A Division Bench of the High Court Division by the impugned judgment and order made the rule absolute, set aside the order passed by the learned Joint District judge and rejected the plaint, hence this petition for leave to appeal.
6. Heard Khair Ejaj Masud, learned Advocate, for the petitioner and Habibul Islam Bhuiyan, learned Advocate, who entered caveat on behalf of respondent No. 1 perused the order of the learned Joint District Judge as well as the impugned judgment and order.
7. The High Court Division rejected the plaint relying on section 21A(b) of the Specific Relief Act, in short, the Act which has provided that no contract for sale of any immovable property can be specifically enforced unless the balance amount of consideration of the contract is deposited in the Court at the time of filing the suit for specific performance of the contract (emphasis supplied). The High Court Division also noticed that the suit was instituted on 2-4-2006 long after coming into force of the amended provision of section 21A(b) of the Act, and "the balance amount of consideration of the impugned contract for sate was not deposited in the Court at the time of filing of the suit rather it is during pendency of the suit and long after one year five months and 28 days , i.e. on 30-9-2007 the balance amount of Taka 2(two) lacs was deposited before the Court with its permission."
8. We have considered the provision of section 21 A(b) of the Act. The language of the section is so unambiguous that it does not require any interpretation to come to conclusion that in case or failure of depositing the balance amount at the time of filing the suit or specific performance of the contract, the suit cannot be maintained. Even then, from the impugned judgment and order, it appears that the High Court Division considered various decisions of this Court and of the Indian jurisdiction and came to the finding that the deposit of the balance consideration of the contract before filing a suit for specific performance of the contract is a condition precedent and that having not been done in the instant case, that suit was barred under the provision of section 2IA(b) of the Act. Therefore, the plaint was liable to be rejected under Order VII, rule 11 of the Code of Civil Procedure. We find no error with the view taken by the High Court Division in view of the language used in section 21 A(b) of the Act.
9. However, it appears that with the permission of the Court, the plaintiff deposited the balance consideration of Taka 2,00,000 of the contract. Therefore, we direct the trial Court to return the said amount to the plaintiff without any delay.
With the above direction, the petition is dismissed.

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