ASHA PANDEY Vs. D.K. DUBEY

JUDGEMENT

(1.) This is defendants' first appeal arising out of the judgment and decree dated 29th September, 2001 passed by the District Judge, Raipur in Civil Suit No. 28A/99 whereby and whereunder, the plaintiff's suit has been decreed.

(2.) Facts of the case, in brief, are that the plaintiff/respondent filed a suit on 14-6-93 for specific performance of agreement to sell dated 24-5-1990 (Ex. P-1) against late Prabha Shankar Pandey (defendant) i.e. husband of appellant No. 1/defendant. No. 1 and father of other appellants inter alia on the ground the original defendant late Prabha Shankar Pandey entered into agreement to sell with regard to a house bearing No. 17, situated at Aadarsh, State Bank of India Employees Cooperative Housing Society, Sunder Nagar, Raipur for a sale consideration of Rs. 2 lacs and received Rs. 5,000/- as advance. Later on, on 3-2-91, an additional sum of Rs. 2,000/- was also paid by the plaintiff

(3.) According to the plaintiff, the sale deed was to be executed after seeking permission from the State Bank of India; balance amount of sale consideration was payable at the time of registration of sale deed. The defendant moved an application on 10-7-90 seeking permission to sell the house to the plaintiff which was granted by the Bank on 10-5-91. The plaintiff also paid installment of Rs. 6951/- of loan amount to the Society on behalf of the defendant and thus has paid Rs. 13,951/- towards the sale price. After completion of the formalities by the defendant, the plaintiff sent a Bank Draft of Rs.1,86,049/-to the defendant by registered post but the same was returned as defendant refused to take the registered letter. Thereafter the plaintiff sent a legal notice on 20-4-92 which was also refused by the defendant. Again another legal notice was sent on 16-4-93 which was replied by the defendant stating that the agreement dated 24-5-90 is fictitious and does not create any right in plaintiff's favour beyond getting refund of Rs. 7,000/- which he shall refund in due course; by lapse of two long years, the cost of land as well as building material increased manifolds, time was essence of contract; the defendant changed the idea of shifting himself to Bilaspur from Raipur; he did not receive any earlier registered letter from the plaintiff; he is not aware whether or not the plaintiff has deposited Rs. 6,951/- on his behalf. Thus defendant refused to execute sale deed.