VIKAS KELKAR Vs. MURTHY

JUDGEMENT

(1.) This first appeal under Section 96 of the Code of Civil Procedure, 1908 (henceforth 'the Code') has been preferred by defendant Vikas Kelkar against whom a decree for specific performance of agreement dated 10-6-1998 has been passed by the trial Court, together with damages at the rate of Rs. 2,500/- per month from the date of decree till the date of delivery of possession. Plaintiff's case, in short, is that the original defendant Digamber Kelkar, being in need of, sought financial assistance from the plaintiff and on denial, he, along with Milind Kelkar, agreed to sell his house bearing No. 9/106 situated at Budhapara, Raipur for Rs. 3 Lakhs and executed agreement to the said effect on 10-6-1998. The entire amount was received by the original defendant on the date of agreement and he handed over all the original documents to the plaintiff. It was also agreed by the original defendant that the sale-deed shall be executed by 9th of June, 2000 and shall also pay Rs. 7,500/- per month to the plaintiff as damages from the date of agreement for remaining in occupation of the house. According to the plaintiff, the original defendant issued 6 post dated cheques of Rs. 7,500/- each to the plaintiff, however, the cheques were dishonoured. The plaintiff published a notice in the newspaper regarding the agreement on 10-5-1999 and legal notices were sent on 7-4-2000 and 31-10-2000, which were not replied. Instead, the original defendant filed a civil suit for declaring the agreement dated 10-6-1998 as cancelled.

(2.) Case of the defendants is that the original defendant had never executed the agreement and the cheques were issued regarding business of Sewing Machine. It was also stated that the suit is barred by limitation and is not properly valued. According to the defendants, the plaintiff is in the habit of instituting false cases against several persons by taking support of forged documents.

(3.) On the basis of evidence on record, the trial Court found that the original defendant Digamber Kelkar had executed the said agreement and received Rs. 3 Lakhs, however, on issues No. 4 and 5, the trial Court recorded the findings that the clause regarding payment of damages at the rate of Rs. 7,500/- per month from the date of agreement and issuance of 6 cheques are not proved. The trial Court decreed the suit after finding that the plaintiff was always ready and willing to perform his part of the contract.