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2002 DIGILAW 805 (MP)

SHIVAM GUPTA v. KAMTA PRASAD

2002-08-27

AJIT SINGH, DIPAK MISRA

body2002
AJIT SINGH, J. ( 1 ) THIS is an appeal by the plaintiff against the dismissal of his suit for specific performance of contract against the defendants. ( 2 ) THE appellant herein as plaintiff, instituted a civil suit alleging that defendant No. 1 negotiated for sale of land with him. Consequently, on 3-7-1992 an agreement for sale ex. P. 1 was entered into between them and it was agreed that the consideration of the suit land would be Rs. 2,75,000. 00 out of which rs. 10,000. 00 would be paid as earnest money and the balance would be made good at the time of execution of the sale deed. It was also stipulated in the agreement that the damarcation of the suit land would be done and thereafter on the information of the same given by the defendant No. 1 in writing to the plaintiff, the plaintiff would get the sale deed executed within 104 days from the date of the receipt of such information. It was further agreed that agreement would not be cancelled but if on demarcation, the area of the suit land was found to be less than 546 sq. ft, then the plaintiff would not purchase the same. Plaintiff also asserted that since the house of defendant No. 1 stood on the suit ,land, it was agreed that defendant No. 1 would demolish the same and remove the material therefrom before the execution of the sale deed. According to the plaintiff in pursuance of the agreement Ex. P. 1 he paid Rs. 10,000. 00 to the defendant No. 1 but the latter despite of demar-cation of the suit land failed to perform his part of the agreement. On 28-8-1992 the plaintiff sent a notice, Ex. P. 2, requiring the defendant No. 1 to execute the sale deed failing which he would be left with no option but to file the suit for specific performance. Defendant No. 1 through his counsel sent a reply, Ex. P. 5, to the notice Ex. P. 2 and asserted that as the agreement has been annulled there was no question of his executing the sale deed. Defendant No. 1 through his counsel sent a reply, Ex. P. 5, to the notice Ex. P. 2 and asserted that as the agreement has been annulled there was no question of his executing the sale deed. The plaintiff sent another notice and expressed that he had always been ready and willing to perform his part of the agreement but the defendant No. 1 sold the suit land in favour of defendants No. 2 and 3 by a registered sale deed dated 26. 2-1993. According to the plaintiff, he had duly informed the defendants No. 2 and 3 about the agreement dated 3-7-1992 but to no avail. Hence, based upon the agreement he filed the suit on 6-4-1993 alleging that he had always been willing and ready to perform his part of the agreement but there had been no response on the part of defendant No. 1 and, therefor, he was entitled to a decree directing the defendant No. 1 to execute the sale deed and get the same registered on payment of the balance amount through Court. He also prayed that the registered sale deed dated 26r2 -. l 993, Ex. P. 20, executed by defendant No. 1 in favour of defendants No. 2 and 3 be declared void and inoperative. ( 3 ) THE claim of the plaintiff was resisted by the defendants by filing a joint written statement wherein an agreement of sale dated 3-7-1992, Ex. P. 1 was admitted. It was also admitted, that the sale deed was to be executed immediately after the demarcation of the suit land but the execution of sale deed within 104 days from the date of information of demarcation was specifically denied. According to the defendant, demarcation of the suit land was done on 17-7-1992 in the presence of plaintiff's father Mathura Prasad (P. W. 1) and the written information of the same was also given to him by registered notice dated 24-7-1992, ex. D. 1, which he refused to accept. Conse-quently notice was published in the newspaper vide ex. D. 2 calling upon the plaintiff for payment of the balance amount and for the execution of the registered sale deed but he resiled. According to the defendants, since the plaintiff failed to perform his part of 'the contract as per the terms and conditions of the agreement, the same stood annulled and as such sale deed dated 26-2-1993, Ex. D. 2 calling upon the plaintiff for payment of the balance amount and for the execution of the registered sale deed but he resiled. According to the defendants, since the plaintiff failed to perform his part of 'the contract as per the terms and conditions of the agreement, the same stood annulled and as such sale deed dated 26-2-1993, Ex. P. 20, was legal and proper. The defendants further asserted that the demand of the plaintiff for the demolition of house and removal of materials from the suit land prior to the execution of the sale deed was contrary to the terms of agreement and such an insistence could only be regarded as trying to vary the terms of the agreement meaning thereby that he was neither ready nor willing to perform his part of the agreement. ( 4 ) THE trial Court after framing appropriate issues adduction of evidence and on consideration thereof dismissed the suit holding that the plaintiff had failed to prove that he was willing to perform his part of the contract. The trial Court also held that the plaintiff without the knowledge of defendant No. 1 tampered with the condition stipulated in the agreement Ex. P. 1, that the sale deed would be executed within 104 days from the date of demarcation. The trial Court further held that the terms of agreement gave the plaintiff an unfair advantage over the defendant No. 1 and hence, he was not entitled for the discretionary relief under Section 20 of the Specific Relief Act. The trial Court also took note of the fact that although the plaintiff was informed about the revocation of the contract vide notice dated 28-8-1992, Ex. P. 5, yet he filed the suit on 6-4-1993 i. e. after the delay of seven months could not be regarded as bona fide. ( 5 ) SHRI K. N. Agarwal, learned Counsel for the plaintiff has challenged the impugned judgment on the ground that the trial Court has misconstrued the pleadings and evidence on record in holding that the plaintiff was not ready and willing to perform his part of the contract. Shri Ravish Agarwal, learned Senior counsel for the defendants in reply has vehemently supported the findings arrived at by the trial Court. Shri Ravish Agarwal, learned Senior counsel for the defendants in reply has vehemently supported the findings arrived at by the trial Court. ( 6 ) HAVING regard to the above submission only one point require to be considered by us:- (i) Whether the plaintiff was ready and willing to preform the contract? ( 7 ) IN paragraphs 4,9 and 10 of the plaint, the plaintiff has, in substance, pleaded that defendant No. 1 had agreed to demolish his house standing on the suit land and thereafter remove the material therefrom before execution of the sale deed. Not only this there is insistence by the plaintiff that defendant No. 1 should demolish the house and remove the material from the suit land after the demarcation and before execution of the sale deed. Even in his evidence Mathura Prasad (P. W. 1), the plaintiff's father has deposed that the defendant No. 1 neither demolished the house nor removed the material from the suit land and also did not get the same demarcated as a result of which he sent a notice Ex. P. 2 through his counsel for the demolition of house. He has also deposed that although he was present at the time of demarcation he had objected for the same as it was not possible without the demolition of house. ( 8 ) DEFENDANT No. 1, Kamta Prasad, on the other hand has deposed in his evidence that the demarcation of the suit land was done on 17-7-1992 in the presence of Mathura prasad (P. W. 1) without any objection by him and written information of the same was also sent to him by a registered notice dated 24-7-1992, Ex. D. 1, which he refused to accept. Consequently, notice was published in the newspaper Ex. D. 2 calling upon the plaintiff for payment of the balance amount and for the execution of his sale deed, but he resiled, kamta Prasad (D. W. 1) has also deposed that as per the agreement Ex. P. 1, sale deed was to be executed within 4 days from the date of demarcation and not 104 days. He has denied in his cross examination that there was any agreement for the demolition of house and removal of material from the suit land before demarcation and execution of sale deed. P. 1, sale deed was to be executed within 4 days from the date of demarcation and not 104 days. He has denied in his cross examination that there was any agreement for the demolition of house and removal of material from the suit land before demarcation and execution of sale deed. According to Kamta Prasad (P. W. 1) since the agreement stood annulled due to the conduct of plaintiff, he executed the sale deed of the suit land in favour of defendants No. 2 and 3 on 26-2-1993 vide Ex. P. 20 which was not objected by the plaintiff. ( 9 ) FROM the perusal of agreement dated 3-7-1992 Ex. P. 1 it is clear that there Was no condition for the demolition of house and removal of material from the suit land by defendant N6. 1 at the time of demarcation and before the execution of sale deed. It is relevant to mention here that the house standing on the suit land is in a dilapidated condition and is of no value. Further there is an apparent change in the condition by interpolation by the plaintiff that the sale deed would be executed within 107 days instead of 7 days from the date of demarcation. Kamta Prasad (D. W. 1) is admittedly an uneducated person and can only endorse his signature. Mathura Prasad (P. W. 1) participated in the demarcation of the suit land by Revenue authority without any objection. The said demarcation was duly approved by the Tahsildar as there was no objection with regard to it. Notice Ex. D. 1, of demarcation was also sent to plaintiff by a registered post which he refused to accept. Thereupon even a paper publication vide Ex. D. 2 was done calling upon the plaintiff for the execution of the sale deed but the same also had no response from him. In this background we have no hesitation in holding that the demand of plaintiff for demolition of house and removal of material from the suit land prior to the execution of sale deed was contrary to the terms of agreement. Further, his such an insistence can only be regarded as trying to vary the terms of the agreement meaning clearly that he was neither ready nor willing to perform his part of the contract. Consequently, the appeal for grant of relief of specific performance of contract has to fail. Further, his such an insistence can only be regarded as trying to vary the terms of the agreement meaning clearly that he was neither ready nor willing to perform his part of the contract. Consequently, the appeal for grant of relief of specific performance of contract has to fail. ( 10 ) THE plaintiff before the Trial Court made no prayer for realisation of the earnest money paid by him. We have however, in appeal allowed the amendment made by the plaintiff/appellant for the realisation of his earnest money. In view of the facts and circumstances of the present case, we direct that the defendant No. 1 shall return Rs. 10,000. 00 with interest at the rate of 6% per annum from 3/7/1992, i. e. the date of agreement to the plaintiff/appellant within four months from today. ( 11 ) IN the result, the appeal is allowed to the extent indicated in paragraph 10 above. A decree be drawn up accordingly. The parties shall bear their respective costs throughout. Appeal disposed of. .