KEDARNATH TIWARI Vs. RAJU SINGH THAKUR

JUDGEMENT

(1.) This appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 24.4.2008 passed by II Additional District Judge (FTC), Korba, in Civil Suit No. 24A/06, whereby the suit filed by the respondent/plaintiff for specific performance of contract of sale has been decreed. The following facts are not in dispute :

(2.) Case of the respondent/plaintiff, in brief, is that on 12.12.2002 he entered into an agreement of sale with the appellant in respect of his (appellant's) land situated at Village-Podibahar, bearing Khasra No. 250/1 area 0.34 1/2 acres, P.C. No. 4, R.I.C. Korba, Tahsil & District Korba, for a sale consideration of Rs. 5,10,000/- and on the same day a sum of Rs. 5,000/- was given by the respondent to the appellant as earnest money and an agreement of sale (Ex. P/ 2) was executed by them. As the said land was a diverted land, therefore, for the purpose of its sale, permission of the Collector, Korba was necessary. As per conditions incorporated in the agreement of sale (Ex. P/2) dated 12.12.2002, it was the duty of the appellant/seller to obtain the required permission from the Collector, Korba and after that, to inform the respondent/purchaser about the same and thereafter, within 15 days, the respondent had to pay the balance amount and get the sale deed executed and registered in his favour. Subsequently, on demand of the appellant, that a further sum of Rs. 1,05,000/- through cheque and Rs. 20,000/- in cash was given on 2.4.2003 by the respondent to the appellant. On the same date i.e. 2.4.2003, the appellant had sworn an affidavit (Ex. P/1) before the notary and handed over the same to the respondent. As such, till 2.4.2003, the respondent had paid a total sum of Rs. 1,30,000/- to the appellant towards the sale price of Rs. 5,10,000/- and the balance amount of Rs. 3,80,000/- was remaining to be paid. After paying Rs. 1,30,000/- to the appellant, the respondent was confident that the appellant after obtaining the necessary permission from the Collector, Korba, will inform him about the same and after paying the balance amount of Rs. 3,80,000/-, he (respondent) will get the sale deed of the said land executed and registered in his favour.

(3.) However, the appellant by registered notice dated 28.12.2005 (Ex. P/ 3) informed the respondent that on account of Non-cooperation on the part of the respondent that the application for permission filed before the Collector, Korba was rejected on 21.9.2004 and also about the fact that he (appellant) has cancelled the agreement of sale dated 12.12.2002 (Ex. P/2). By the said notice, the respondent was asked to take back his amount of Rs. 130,000/- alongwith simple interest at the bank rate, as per terms and conditions of the agreement. After receiving the notice dated 28.12.2005, the respondent sent his reply dated 2.1.2006 (Ex. P/4) to the appellant intimating him to take necessary steps in pursuance of the agreement of sale dated 12.12.2002 for obtaining the required permission of the Collector, Korba for sale of the land involved in the agreement of sale. Thereafter, the respondent/purchaser again sent a notice (Ex. P/5) to the appellant/seller through his counsel on 4.2.2006 requesting the appellant to obtain the necessary permission of the Collector, Korba and to execute and register the sale deed after receiving the balance amount of Rs. 3,80,000/- in favour of the respondent This notice dated 4.2.2006 (Ex. P/5) was replied to by the appellant, through notice dated 16.2.2006 (Ex. P/6) informing the respondent that as the application for permission has been rejected on account of non-cooperation of the respondent, therefore, the appellant has cancelled the agreement of sale dated 12.12.2002 and as such, the respondent has no right to initiate any proceedings in respect of the land belonging to the appellant. It has been averred by the respondent that he has all along been ready and willing to perform his part of the contract and was having the balance amount of Rs. 3,80,000/- with him to be paid to the appellant, but the appellant looking to the increase in the rate of lands at Korba, with the intent to sell the land in question at a higher price to some other person, has malafidely cancelled the agreement of sale dated 12.12.2002 (Ex. P/2). With these averments, the respondent/plaintiff filed a suit for specific performance of the contract of sale dated 12.12.2002 (Ex. P/2).