TARA SHANTILAL JAIN Vs. SHRIRAJ AHMED

JUDGEMENT

(1.) This Regular First Appeal is preferred by plaintiff challenging the judgment and decree dtd. 26/9/2018 passed in Original Suit No.127 of 2011 on the file of the I Additional Senior Civil Judge, Hubballi, (for short, hereinafter referred to as 'Trial Court'), decreeing the suit of the plaintiff in part.

(2.) For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

(3.) It is the case of the plaintiff that, defendant is the owner of the suit schedule property measuring 2200 sq.ft., built up area at 2nd floor and 3300 sq.ft., at 1st floor open terrace area of D Block, along with 33% undivided share in land bearing CTS No.2538 measuring, 1816 sq.ft at Ward No.1 at Koppikar Road, Hubballi. It is further stated in the plaint that the defendant was in need of financial aid for construction work of his commercial complex namely, USA Towers, situate at Coen Road, Hubbali, and as such, the defendant offered to sell the suit schedule property and in furtherance of the same, the plaintiff and her husband negotiated with the defendant to purchase the property lying towards southern side of CTS No.2538 and in this regard, an agreement of sale was executed on 30/4/2007, wherein the defendant received advance amount as Rs.5.00 lakhs out of total consideration of Rs.10.00 lakhs. It is further stated in the plaint that the plaintiff was always ready and willing to purchase the suit schedule property, however, the defendant, on one or the other pretext, postponed registration of the Sale Deed. It is also stated in the plaint that, the plaintiff requested the defendant for execution of the registered Sale Deed, and at that juncture, the defendant was in need of funds and as such, defendant borrowed additional amount of Rs.4,75,000.00 from the plaintiff through cheque bearing No.244230 dtd. 16/12/2008. It is also stated that, as the plaintiff and her husband had good relationship with the defendant and as such, the defendant delivered the physical possession of the suit property by receiving the remaining consideration. However, in addition to the earlier sale consideration, the defendant has made a claim for additional amount of Rs.5.00 lakhs as enhanced price to execute a registered sale deed and as such, on the very same day i.e. on 16/12/2008 the plaintiff has paid Rs.5.00 lakhs through cheque bearing No.244229 drawn on State Bank of Hyderabad. It is contended by the plaintiff that the defendant has received sum of Rs.15.00 lakhs in respect of the consideration of the suit schedule property, despite the same, the defendant refused to execute a registered Sale Deed in favour of the plaintiff and as such, the plaintiff issued legal notice dtd. 24/12/2010 as the plaintiff came to know that, the defendant is trying to sell the suit property to third parties and as a result of the same, the plaintiff has filed OS No.127 of 2011 before the trial Court seeking relief of specific performance of contract. It is also contended by the plaintiff that during the pendency of the suit, the defendant approached the plaintiff for financial assistance for construction of structure and in furtherance of the same, the plaintiff has paid Rs.10.00 lakhs as additional sale consideration through Cheque No. 727977 dtd. 15/9/2011, which includes the cost of civil repair /renovation to be made at the schedule property and therefore, the plaintiff sought for specific relief of contract.