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Madhya Pradesh High Court · body

2008 DIGILAW 550 (MP)

BABULAL BACHARAJJI v. SHAFI MOHAMMAD

2008-04-08

N.K.MODY

body2008
Judgment ( 1. ) BEING aggrieved by the judgment and decree dated 22-3-1996 passed by first Additional District Judge, Ratlam in Civil Suit No. 11-A/96, whereby the suit filed by respondent was decreed and it was directed that appellant will execute the sale deed in favour of respondent after receipt of payment of Rs. 18,000/- as balance consideration within a period of two months and shall handover the possession of the suit property and the counter claim filed by the appellant was dismissed, the present appeal has been filed. ( 2. ) SHORT facts of the case are that the respondent Shafi Mohammad filed a suit for specific performance and for award of compensation on 16-01 -1988 alleging that appellant is owner of the suit property, which is a house bearing house No. 40 situated at Chandra Shekhar Azad Marg, Village Taal Tehsil alot Distt. Ratlam. It was alleged that vide agreement dated 04-02-1987 appellant agreed to sell the suit property for a consideration of Rs. 45,000/- and took a sum of Rs. 20,000/- as earnest money. It was alleged that it was agreed that the balance amount shall be paid to the appellant at the time of execution of sale deed. It was alleged that at the time of execution of agreement possession of second and third floor of suit house was given to the respondent. Further case of the respondent was that on 18-03-1987 appellant took a sum of Rs. 7,000/- towards sale consideration of which the endorsement was made on the sale agreement dated 04-02-1987. It was alleged that the total amount of Rs. 27,000/- was received by the appellant towards the sale consideration. Further case of the respondent was that after the agreement, respondent got issued a public notice in the news paper swadesh, whereby the objections were invited. It was alleged that respondent was always ready and willing to perform his part of the agreement, but since the appellant was not prepared, therefore, respondent asked the appellant telegraphically on 29-04-1987 to execute the sale deed. It was alleged that in spite of that appellant did not turn up to the office of Sub-Registrar for execution of sale deed. It was alleged that appellant failed to execute the sale deed as per terms of agreement as agreed between the parties. It was alleged that in spite of that appellant did not turn up to the office of Sub-Registrar for execution of sale deed. It was alleged that appellant failed to execute the sale deed as per terms of agreement as agreed between the parties. It was prayed that appellant be directed to execute the sale deed, after accepting the balance amount and handover the possession of part of the suit property which was not delivered to the appellant. In alternative it was prayed that appellant be directed to pay double of the amount of Rs. 27,000/- which was paid by the appellant as earnest money. ( 3. ) APPELLANT filed the written statement wherein it was not disputed that appellant entered into an agreement to sell the suit property to the respondent. Contention of the appellant was that as per the agreement sale deed was to be executed on or before 30-04-87. 30-04-1987 was a holiday because of Parshuram jayanti. It was alleged that appellant was ready to execute the sale deed on 01-05-87. Appellant remained present in the office of the Sub-Registrar for executing the sale deed, but the respondent did not appear. On the contrary a telegram was sent by the respondent on 29-04-87 and also a registered letter to create evidence against the appellant. It was alleged that since the respondent did not get the sale deed executed by making the payment of balance amount, therefore, the suit filed by the respondent deserves to be dismissed. So far as, earnest money is concerned, it was alleged that the same stands forfeited. It was alleged that respondent is not entitled for double of the amount of earnest money. It was prayed that suit filed by the appellant be dismissed. In counter claim it was prayed that a decree be passed against the respondent for handing over the possession of suit property. ( 4. ) ON the basis of pleadings of the parties, learned Trial Court framed the issues, recorded the evidence and decreed the suit filed by the respondent, whereby the appellant was directed to execute the sale deed within two months and the counter claim filed by the appellant was dismissed against which the present appeal has been filed. ( 5. ) SHRI P. Bhagat, learned Counsel for the appellant submits that the learned Court below committed error in decreeing the suit filed by the respondent. ( 5. ) SHRI P. Bhagat, learned Counsel for the appellant submits that the learned Court below committed error in decreeing the suit filed by the respondent. Learned Counsel submits that since the respondent failed to prove his readiness and willingness to make the payment of the balance sale consideration within the time stipulated in the agreement, therefore, no decree of specific performance could have been passed in favour of respondent. It was also alleged that since the respondent himself prayed for a money decree of double of the amount of the sale consideration, therefore, learned Court below committed error in directing the appellant to execute the sale deed. ( 6. ) LEARNED Counsel for the respondent submits that the relief of specific performance is a discretionary relief, which has been granted by the learned Court below in favour of respondent, therefore, the judgment and decree passed by the learned Court below could not be disturbed in appeal. It was prayed that the appeal filed by the appellant be dismissed. ( 7. ) ARGUMENTS heard. To prove the case respondent filed the agreement dated 22-01-96 as Exh. P-1, News Paper-Swadesh dated 09-02-87 Exh. P-3, certified copy of telegram, receipt of telegram, receipt of registry, draft notice and other documents Exhs. P-4 to P-6. Respondent examined himself as P. W. 1 and Sujanmal Jain as P. W. 2. Appellant also examined himself as D. W. 1 and shaitanmal as D. W. 2. ( 8. ) FROM perusal of the record, it is evident that respondent himself has prayed in the suit that in alternative appellant be directed to return the amount of Rs. 45,000/- and damages Rs. 5,000/ -. Exh. P-4 shows that the respondent has deposited a sum of Rs. 18,000/- in the SB A/c with State Bank of Indore. There is nothing on record to show that the respondent was having sufficient funds to purchase the stamps and to pay the registry fee. The respondent has not even stated in his examination in chief that respondent was having the money to get the sale deed registered. Since the respondent has filed the suit for specific performance, therefore, it was the duty of the respondent to plead and prove that the respondent was having sufficient funds to pay balance consideration and also to get the sale deed executed and also to bear the expenses of registration. Since the respondent has filed the suit for specific performance, therefore, it was the duty of the respondent to plead and prove that the respondent was having sufficient funds to pay balance consideration and also to get the sale deed executed and also to bear the expenses of registration. In absence of this evidence there was no justification on the part of learned Court below in not granting the alternative relief claimed by the respondent. The respondent himself has prayed that appellant be directed to pay double of the amount of the earnest money i. e. , Rs. 44,000/-, therefore, there was no reason to grant the relief for specific performance to the respondent. Since the respondent is continuing in possession of the part of the suit property, therefore, the respondent was also duly compensated with interest. ( 9. ) IN view of this, the appeal filed by the appellant is allowed. Judgment and decree passed by the learned Court below is set aside. The suit filed by the respondent is decreed in part. Appellant is directed to pay a sum of rs. 44,000/- to the respondent. Since respondent is in possession of two storey of the suit property, therefore, respondent shall not be entitled of interest on this amount. Upon depositing the amount as indicated above within two months respondent shall handover the possession of the suit property to the appellant failing which the appellant shall be entitled to get possession of the suit property through Court. Appellant shall also bear the cost of litigation throughout.