Y.V.APARNA Vs. PANCHAPPA

JUDGEMENT

(1.) This appeal under Section 96 of the Code of Civil Procedure, 1908, has been filed by the plaintiff being aggrieved by the impugned judgment and decree dated 22nd November 2012 by which the suit for specific performance of the contract filed by the appellant has been partly decreed and only the relief of refund of earnest money along with interest at the rate of 12% per annum has been granted to the appellant.

(2.) Facts giving rise to filing of the appeal, briefly stated, are that defendant No.1, admittedly was the owner of the agricultural land bearing Sy. No.77/2 measuring 3 acres out of 6 acres and 21 guntas. It is the case of the plaintiff that the defendant No.1, in order to pay family debts, entered into an agreement for sale in favour of the plaintiff on 01.03.2007, which was registered on the same day. Under the aforesaid agreement, the defendant No.1 agreed to sell the land for a consideration of Rs.2,00,000/- per acre and on the same day. plaintiff paid a sum of Rs.3,80,000/- through a cheque, and a sum of Rs.21,000/- by way of cash. Thus, the defendant No.1 received, in all, a sum of Rs.4,01,000/- as advance sale consideration. It was mutually agreed that plaintiff would pay the balance sale consideration within six months from the date of the agreement and the defendant No.1 thereupon would put the plaintiff in possession of the suit property. It is also averred that plaintiff subsequently approached the defendant No.1 through her husband and attesting witnesses to the agreement and requested him to execute the sale deed. However, the defendant No.1 did not execute the sale deed.

(3.) The defendant No.1(b) filed the written statement in which, inter alia, it was stated that the suit property was ancestral property of the family of defendant No.1 and he had no absolute right to sell the property. It was further pleaded that the registered agreement of sale is not real and genuine and defendant No.1 was in need of Rs.6,00,000/- and approached the plaintiff's husband, who had agreed to advance the loan, and the defendant No.1 agreed to repay the loan with interest at the rate of 6% per annum. However, the agreement was executed subject to the condition that the defendant No.1 shall execute a nominal registered agreement of sale in the name of his wife as security for the loan amount, which was to be cancelled on repayment of the loan amount. It was further pleaded that defendant No.1 had received an amount of Rs.4,01,000/- and the total agreed loan amount was Rs.6,00,000/-. It was also averred by the defendants that on 02.03.2007, the plaintiff got one more unregistered agreement of sale on identical terms and conditions which was executed as security for loan. It was further pleaded that the plaintiff, in order to grab the suit property, issued notices to defendant No.1 which was suitably replied.