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2017 DIGILAW 2375 (RAJ)

Ishwar Lal v. Legal Heirs of Deceased Babu Lal

2017-11-01

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT : VIRENDRA KUMAR MATHUR, J. 1. This S.B. Civil Regular First Appeal has been filed under section 96 of the Code of Civil Procedure against the judgment and decree dated 21.03.2002 passed by the learned Additional District Judge, No.1, Udaipur in Civil Original Suit No.317/1995. 2. Briefly stated, the appellant-plaintiff filed a suit for specific performance of agreement, which was executed between the appellant-plaintiff and respondent-defendant on 05.01.1991 whereby the respondent-defendant agreed to sell his House No.36, Saheli Nagar, Udaipur for a sum of Rs. 8,50,000/- to the appellant-plaintiff. A sum of Rs. 7,50,000/- was adjusted against the loan which was advanced to the respondent-defendant and the remaining amount of Rs. 1,00,000/- was agreed to be paid to the respondent-defendant at the time of registration, which was to be got done within three months. According to the appellant-plaintiff, he was always ready and willing to perform his part of obligations but however, the respondent-defendant has failed to perform his part of obligations and also got extended the date of execution by agreement dated 30.05.1991 and it was further agreed between the parties that the respondent-defendant shall adjust the amount of interest on the paid up sale consideration of a sum of Rs. 7,50,000/- against the remaining sale consideration of Rs. 1,00,000/- to be paid the appellant-plaintiff at the time of registration. However, the respondent-defendant failed to perform his part of obligations under the aforesaid agreement and when the appellant-plaintiff came to know about the fact that the respondent-defendant is going to sell the suit house to somebody else, he got a notice published in the newspaper that the respondent-defendant had already entered into an agreement to sell the suit house for a sum of Rs. 8,50,000/- to the appellant-plaintiff and a sum of Rs. 7,50,000/-, which was advanced to the respondent-defendant, has already been adjusted against the sale consideration and it was decided that the remaining amount of sale consideration amounting to Rs. 1,00,000/- is to be paid by the appellant-plaintiff at the time of registration. The appellant-plaintiff was always ready and willing to perform his part of contract but the respondent-defendant has failed to perform his part of obligations. It was also contended that the interest on the paid-up sale consideration has accrued more than the amount of sale consideration already paid to the respondent-defendant. The appellant-plaintiff was always ready and willing to perform his part of contract but the respondent-defendant has failed to perform his part of obligations. It was also contended that the interest on the paid-up sale consideration has accrued more than the amount of sale consideration already paid to the respondent-defendant. In the alternative it was also prayed that in case, the court does not think it proper to pass a decree for specific performance, decree for the recovery of a sum of Rs. 8,50,000/- with compensation may be passed against the respondent-defendant. 3. The respondent-defendant filed a detailed written statement denying loan taken from the appellant-plaintiff and further execution of the agreement to sell dated 05.01.1991. 4. On the basis of the pleadings of the parties, the trial court framed as many as six issues and after recording the evidence, passed the impugned judgment and decree dated 21.03.2002. 5. The issue No.1 was decided in favour of the appellant-plaintiff and held that the respondent-defendant executed an agreement on 01.07.1990 in favour of the appellant-plaintiff and also decided issues Nos.2 and 3 against the respondent-defendant and in favour of the appellant-plaintiff holding that the respondent-defendant executed an agreement in favour of the appellant-plaintiff on 05.01.1991 to sell his house situated in Saheli Nagar for a sale consideration of Rs. 8,50,000/- and that the respondent-defendant has failed to perform his part of obligation as per agreement dated 05.01.1991 and got the period extended for performance of agreement by 30.06.1991. Issues Nos.4 and 5 were also decided in favour of the appellant-plaintiff and against the respondent-defendant. The learned trial court held that the respondent-defendant has failed to prove that the appellant-plaintiff, in connivance of his relative, had decided the respondent-defendant for the purpose of grabbing his property and after signing, the respondent-defendant had handed over the stamps to one of the relative of the appellant-plaintiff and those signed blank stamps have been used by the appellant-plaintiff. However, though the suit was filed for specific performance of the agreement to sell dated 05.01.1991 but the learned lower court, vide its judgment and decree dated 21.03.2002, decreed the suit of the appellant-plaintiff against the respondent-defendant for the recovery of Rs. 6,53,000/- with costs. The appellant-plaintiff has been made entitled to recover interest @ 12% per annum on the aforesaid decreetal amount of Rs. 6,53,000/- w.e.f. 01.07.1990 till its recovery. 6. 6,53,000/- with costs. The appellant-plaintiff has been made entitled to recover interest @ 12% per annum on the aforesaid decreetal amount of Rs. 6,53,000/- w.e.f. 01.07.1990 till its recovery. 6. Hence, being aggrieved of the impugned judgment and decree dated 21.03.2002, the appellant-plaintiff has preferred this appeal. 7. The main contention of the appellant-plaintiff is that the relief sought for by the appellant-plaintiff in the suit ought to have been granted in favour of the appellant-plaintiff. The present suit was for specific performance of agreement to sale dated 05.01.1991 in which the alternative prayer was made regarding recovery of sale consideration of Rs. 6,50,000/-, therefore, the learned trial court has committed error in not decreeing the suit for specific performance of agreement to sell dated 05.01.1991 and thus, the impugned judgment and decree dated 21.03.2002 passed by the learned trial court cannot be sustained and thus deserves to be modified by decreeing the suit for specific performance of agreement to sell in favour of the appellant-plaintiff and against the respondent-defendant. 8. In support of the contentions raised by the appellant-plaintiff, he placed reliance on the judgment of the Hon'ble Supreme Court delivered in the case of Zarina Siddiqui v. A. Ramalingam alias R. Amarnathan [ AIR 2015 SC 580 ] and contended that the equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same, if the defendant does not come with clean hands and suppress material facts and evidence and misled the court, then such discretion should not be exercised by refusing in his favour by denying specific performance. It was also contended that the court may, in the facts and circumstances of the case and considering the phenomenal increase in price during the period the matter remained pending in different courts, the judgment and decree under appeal be set aside but with the condition that in addition to the amount already paid, the balance money of Rs. 1,00,000/- may also be ordered to be paid at the time of execution of the sale-deed in spite of the fact that interest accrued on the sale consideration already paid/adjusted is more than the balance amount to be paid. 9. 1,00,000/- may also be ordered to be paid at the time of execution of the sale-deed in spite of the fact that interest accrued on the sale consideration already paid/adjusted is more than the balance amount to be paid. 9. In the light of the submissions made by the counsel for the appellant, perused the impugned judgment and decree and evidence placed on record. 10. From the evidence, it is manifestly clear that under Ex.1, the respondent-defendant has admitted that he received Rs. 6,53,000/- as a loan and also admitted that in case he fails to repay the money advanced, then the appellant-plaintiff will be entitled to take possession of the house at 36, Saheli Nagar and recover money and after the date 01.07.1990, he will not be entitled to mortgage or sale the property till the amount outstanding is paid. From the perusal of the contents of Ex.1, it is clear that the intention of the respondent-defendant was to pay the outstanding amount and not to sale the property. When the respondent-defendant was not able to perform as per the agreement Ex.1, then the agreement Ex.3 was executed. Under these circumstances, the trial court has exercised discretion in granting alternative prayer made by the appellant-plaintiff and refusing specific performance. The learned trial court has exercised the jurisdiction judiciously. 11. In view of the above, there is no ground of interference with the discretion exercised by the learned trial court in accepting the alternative prayer of the appellant-plaintiff and in not granting specific performance of the agreement to sale. The appeal has, therefore, got no merit and the same is hereby dismissed.