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2005 DIGILAW 1192 (RAJ)

ASHOK BHARGAVA v. GANPAT SINGH

2005-04-21

DALIP SINGH

body2005
Judgment DALIP SINGH, J. ( 1 ) THIS is the defendant-appellants appeal against the judgment and decree passed by the Additional District Judge no. 2, Ajmer in suit for specific performance of contract of sale which was decreed by the learned trial court vide judgment dated 30. 7. 1996. ( 2 ) THE brief facts giving rise to this appeal are that on 17. 4. 1987 the defendant entered into an agreement to sell the residential plot situated in Ajmer for a sum of 99,000/- and by way of advance received on the same date an amount of Rs. 15,000/ -. The balance amount of Rs. 84,000/- was to be paid after defendant vendors obtained No Object Certificate from the U. I. T, Ajmer for which the defendant sought one months time and thereafter get the sale deed registered before the sub Registrar. The balance of Rs. 84,000/-was therefore agreed to be paid at the time of registration. ( 3 ) THE plaintiff-respondent in the plaint averred that on 10. 8. 1987 the defendant paid further a sum of Rs. 50,000/- by means of two cheques and the said amount was received by the defendant and deposited in her bank account jointly in her name as well as in the name of her son DW2 Ashok Kumar. The plaintiff further averred that he had sent a notice to the defendant to appear before the Sub registrar on 19. 10. 1987. To appear before the Sub Registrar to get the sale deed registered and accept the balance amount of Rs. 34,000/- as the defendants had already received a sum of Rs. 15,000/- by way of advance plus additional amount of Rs. 50,000/-by the aforesaid two cheques in all amounting to Rs. 65,000/- out of the agreed amount of rs. 99,000/ -. It was further submitted that the plaintiff purchased stamps for executing the sale deed worth Rs. 5030/- but on the appointed date and time the defendant failed to appear and consequently the plaintiff had filed the present suit for specific performance of. contract of sale dated 17. 4. 1987. ( 4 ) THE defendant on the other hand in their written statement admitted execution of the-agreement Ex. 1 dated 17. 4. 1987 for sale of residential plot at Ajmer for a sum of Rs. 99,000/ -. The terms of the agreement were also admitted. Receipt of advance of Rs. contract of sale dated 17. 4. 1987. ( 4 ) THE defendant on the other hand in their written statement admitted execution of the-agreement Ex. 1 dated 17. 4. 1987 for sale of residential plot at Ajmer for a sum of Rs. 99,000/ -. The terms of the agreement were also admitted. Receipt of advance of Rs. 16,000/- was admitted so far as the amount of Rs. 50,000/- paid by way of two cheques is concerned the receipt of the said amount and deposit by two cheques on 10. 8. 1987 was also admitted, however, the case of the defendant was that before the receipt of the said amount the defendant had already terminated the agreement as the plaintiff failed to pay the balance amount arid get the sale deed executed as the defendant had after obtaining the required no objection certificate from the Urban improvement Trust, Ajmer informed the plaintiff for executing the sale deed on payment of balance amount. Another plea was taken by the defendant that the amount of Rs. 50,000 was taken by the defendant by way of loan and the same was repaid to the plaintiff and as such prayed that the suit be dismissed. ( 5 ) ON the aforesaid pleadings the learned trial court framed five issues and recorded the documentary as well as oral evidence led by the parties. ( 6 ) IN the facts and circumstances of the present case the trial court found that following facts to be admitted between the parties :1. Execution of agreement dated 17. 4. 1987. 2. Agreed consideration Rs. 99,000. 3. Payment of advance amounting to rs. 15,000/-on 17. 4. 1987. 4. Balance to pay by the plaintiff amounting to Rs. 84,000/ -. 5. In addition amount of Rs. 50,000 paid by the plaintiff vendor by two cheques dated 10. 8. 1987 and credited to the account of the plaintiff and her son. ( 7 ) THE learned trial court after consideration of the evidence came to the conclusion that the plaintiff was entitled to a decree for specific performance of the contract of sale after paying the balance amount of rs. 34,000/- as in view of the learned trial court the defendants had received in all a sum of Rs. 65,000/- (i. e. 15,000/- advance plus rs. 50,000/-on 10. 8. 1987 ). 34,000/- as in view of the learned trial court the defendants had received in all a sum of Rs. 65,000/- (i. e. 15,000/- advance plus rs. 50,000/-on 10. 8. 1987 ). ( 8 ) THE submissions of learned counsel for the appellant was that learned trial court committed a serious error in holding that the plaintiff was entitled to a decree for specific performance after payment of Rs. 34,000/- along as it was the case of the defendant appellants that though the defendants had received an amount of Rs. 50,0007- on 10. 8. 1987 the same had been repaid by the defendant to the plaintiff. The submissions of the learned counsel for the appellants was in this amount of rs. 50,000/- had been taken as loan from the plaintiff for the marriage of the daughter and same had been repaid. ( 9 ) SO far as the question of re-payment of Rs. 50,000/- is concerned the learned trial court after going through the entire evidence has disbelieved the evidence of the defendant appellants. The learned trial court disbelieved the evidence of the defendant regarding repayment as it was the case of the defendants that the amount had been taken by way of loan from the plaintiff for the purpose of wedding of the daughter. The trial court held that no date for returning of the amount has been specified for the alleged repayment for a sum of Rs. 50,000/ -. The defendants case was that the amount had been repaid after selling another immovable property for Rs. 47,000/-plus Rs. 3,000/- from personal funds. The learned trial court dis-believed the evidence of the appellant since the defendant failed to prove and specify which immovable property had been sold for consideration of Rs. 47,000/ -. The date on which it was sold, the details to whom it was sold, no document of sale or any agreement with regard to aforesaid sale on the receipt of Rs. 47,000/- was also filed by the defendant as such the learned trial court disbelieved the evidence of the defendant regarding repayment of the said amount as pleaded by the defendant. The trial court further held that there was material contradiction between evidence of the defendants witness inasmuch as the defendant stated that at the time of taking of the loan of Rs. The trial court further held that there was material contradiction between evidence of the defendants witness inasmuch as the defendant stated that at the time of taking of the loan of Rs. 50,000/- no document was prepared whereas the son of the defendant DW1 Ashok Kumar has stated that a document was executed regarding taking of loan on 28. 7. 1987. Thus there being no evidence to show the repayment of rs. 50,000/- and taking the above facts and circumstances, the learned trial court rightly came to the conclusion that the defendants failed to discharge their burden of proving the repayment of Rs. 50,000/- and that this amount had been taken as loan as against the balance price of sale consideration as pleaded by the plaintiff. ( 10 ) AS such there is no error in the judgment of the trial court in its finding that the plaintiff had paid the amount of Rs. 50,000/-to the defendants on 10. 8. 1987, in additional to the amount of Rs. 15,000/- which was paid at the time of agreement on 17. 4. 1987 thereby holding that in all Rs. 65,000/- had been received , an amount of Rs. 34,000/- was required to be paid to the defendants out of the total consideration of Rs. 99,000/- ( 11 ) THE next submission of the counsel for the appellant is that the plaintiff was not ready and willing to perform his part of the contract. In this behalf the learned counsel for the appellant has submitted that time was the essence of the contract in as much as per the agreement Ex. 1 the plaintiff was required to execute the sale deed after payment of rs. 84,000/- within a period of one month. Since the plaintiff failed to pay the balance amount of Rs. 84,000/- and execute the sale deed within the stipulated period of one month, the plaintiff was not ready and willing to perform his part of the contract and as such the plaintiff was not entitled to a decree for specific performance. ( 12 ) THE learned counsel for defendants as well as counsel of plaintiff-respondent submitted was that the sale deed was to be executed within a period of one month before the Sub Registrar by making payment of rs. ( 12 ) THE learned counsel for defendants as well as counsel of plaintiff-respondent submitted was that the sale deed was to be executed within a period of one month before the Sub Registrar by making payment of rs. 84,000/- but as per the condition No. 3 the onus was upon the defendants to obtain n. O. C. from the U. I. T. , Ajmer and it was only after the said N. O. C. had been obtained and information in that behalf given to the plaintiff that the plaintiff was required to make payment of Rs. 84,000/- and get the sale deed executed in his favour. The learned senior counsel appearing on behalf of the plaintiff has also drawn my attention to the facts and as per the defendants own case on or about 16. 6. 1987 i. e. after two months of the execution of the agreement dated 17. 4. 1987, the condition no. 2 requiring execution of sale deed in one month is negatived though the case of the plaintiff respondent is that the plaintiff never received any intimation regarding N. O. C. from the defendants. The learned trial court in this behalf after considering the entire evidence has found that so far as the case of the defendants is exercised that they had obtained the N. O. C. on 16. 6. 1987 and informed the plaintiff is concerned there is no evidence to prove that the defendants sent any intimation about the receipt of the procurement of N. O. C. on 16. 6. 1987 Ex. D1 the alleged receipt of the certificate of posting (U. P. C.) could not alone be sufficient to prove the fact regarding the intimation of the certificate of posting as no corresponding letter of the aforesaid dated had been produced to show as to what intimation was sent in the letter dated 16. 6. 1987 that had been dispatched on the said address of the plaintiff by the defendants even assuming that a letter sent on 16. 6. 1987 by the defendant. On the contrary there is an evidence on record led by the plaintiff that the plaintiff had sent notice to defendants to appear before the sub Registrar and get the sale deed executed. 6. 1987 by the defendant. On the contrary there is an evidence on record led by the plaintiff that the plaintiff had sent notice to defendants to appear before the sub Registrar and get the sale deed executed. The trial court has found that the plaintiff took steps by informing the defendants by sending the Broker PW4 Vashumal to the defendants so as to inform the defendants to come and execute the sale deed before the Sub Registrar. In addition it has also come on record by way of defendant. PW2 Sushil, PW3 Prakash that the plaintiff purchased the necessary stamps for execution of sale deed amounting to Rs. 5030/- and they were entered in the register of the stamp Vendor. The record of the Treasury to show that the plaintiff had purchased necessary stamps for execution of the sale deed was also produced and proved by PW2 and PW3. After thorough consideration of the entire evidence the trial court found that the plaintiff was always ready and willing to perform his part of the contract and consequently entitled to a decree for specific performance of the agreement of sale dated 17. 4. 1987 and the said findings are affirmed. ( 13 ) IT was then submitted by the learned counsel appearing on behalf of the defendant appellant that in view of the fact that the agreement had been entered into in the year 1987 and the appellants would have to part with possession of the property in dispute over which they have raised some construction and are residing therein it would be great hardship for the defendant appellants as they would receive only a consideration of Rs. 34,000/- as decreed by the trial court. It was submitted that in the light of pronouncement of their Lordship honble Supreme Court in case reported in 2002 Vol. 5 SCC 481 Nirmala Anand vs. Advent Corporation Put. Ltd. and subsequently the said directions having been modified in the order reported in 2002 Vol. 8 SCC 146 Nirmala Anand vs. Advent Corporation pvt. Ltd. and in view taken by this court in 2004 WLC 100 U. I. T. AJwar vs. Manji the amount of consideration be suitably enhanced. 5 SCC 481 Nirmala Anand vs. Advent Corporation Put. Ltd. and subsequently the said directions having been modified in the order reported in 2002 Vol. 8 SCC 146 Nirmala Anand vs. Advent Corporation pvt. Ltd. and in view taken by this court in 2004 WLC 100 U. I. T. AJwar vs. Manji the amount of consideration be suitably enhanced. ( 14 ) THE learned counsel appearing on behalf of the respondent has opposed the aforesaid submission on the ground that the delay in this case is attributable to the defendant appellants and the defendant appellants raised false plea regarding the payment of rs. 50,000/- and as such the appellant is not entitled to any equitable relied and even though there is no merit in the appeal, the appellants preferred this appeal and deprived the plaintiff respondent of the fruits of the decree and the plaintiff respondent had paid about 65% of the consideration to the defendant-appellants. ( 15 ) THE learned senior counsel appearing on behalf of the plaintiff respondent submitted that in view of the fact that some construction has been raised by the defendant over the plot in dispute, the respondent is willing to pay over and above amount of Rs. 65,000/-which had been paid in the year 1987 (Rs. l5,000/-on 17. 4. 1987 and Rs. 50,000/-on 1. 8. 1987) as further sum of Rs. 99,000/-in place of the amount of Rs. 34,000/- as decreed by the trial Court. The learned counsel for the appellant accepts the said offer. ( 16 ) IN view of the aforesaid submission of the senior counsel while maintaining the decree passed by the learned trial court for specific performance of the contract of sale deed dated 17. 4. 1987 the decree is modified to the extent that the plaintiff respondent shall be entitled to get the sale deed of the property mentioned in the agreement dated 17. 4. 1987 executed in his favour upon the payment mentioned in the agreement dated 17. 4. 1987 executed in his favour upon the payment of rs. 99,000/- (Ninety Nine thousand) only in place of Rs. 34,000/- (rupees thirty four thousand ). The amount of Rs. 34,000/- as mentioned in the operative part of the judgment in clause 1 and 2 shall be read as Rs. 99,000/ -. 4. 1987 executed in his favour upon the payment of rs. 99,000/- (Ninety Nine thousand) only in place of Rs. 34,000/- (rupees thirty four thousand ). The amount of Rs. 34,000/- as mentioned in the operative part of the judgment in clause 1 and 2 shall be read as Rs. 99,000/ -. The said amount be paid to the defendant appellants or deposited with the court within a period of two months from today. The othef directions on the decree dated 30. 7. 1996 shall remain intact. In the facts and circumstances of the case the party shall bear their own costs throughout. Appeal disposed of.