ASHISH GUPTA Vs. KSHAMA DEVI KHETAN

JUDGEMENT

(1.) Challenge in this appeal is to the judgment and decree dtd. 4/5/2017 passed by the First Additional District Judge, Durg, in civil suit No.41-A/2009 whereby the suit for specific performance brought by the plaintiff/appellant was dismissed.

(2.) The facts, in brief, as pleaded by the plaintiff/appellant, are that the defendant No.1 owns land bearing khasra No.179 area 1.95 hectares situated at village Basin, PH No.11, R.I. Circle Durg-1, Tahsil and District Durg. The said land was agreed to be sold for a sum of Rs.10.00 lacs and on 16/1/2007 an amount of Rs.1,51,000.00 was paid as an earnest money. Thereafter, an agreement was executed on 8/2/2007 in presence of the witnesses wherein it was agreed that the remaining amount of sale consideration would be paid at the time of execution of sale deed. The plaintiff pleaded that at the time of agreement, the defendant agreed to get the land demarcated and would show the original title deed i.e. land papers before the actual sale. The plaintiff further pleaded that he was always ready and willing to perform his part of contract by paying the rest part of sale consideration and to get the sale deed executed, but the defendant never agreed to it. The plaintiff also pleaded that subsequently he came to know that despite receiving Rs.1,51,000.00 as an earnest money the defendant wanted to sale the land to someone else as such public notice was made in the newspaper on 15/10/2007 followed by a registered notice on 16/10/2007 to get the sale deed registered, but eventually the defendant failed, therefore, the suit was filed.

(3.) The case of the defendant No.1/respondent No.1 was that the agreement was executed with one Anil Gupta whereas the suit was filed by one Ashish Gupta and therefore, the service of notice to the defendant on behalf of Ashish Gupta was of no consequence. It was further pleaded that by putting whitener over the agreement name of the purchaser was changed as Ashish Gupta. On 14/9/2007 the defendant had sent a notice to Anil Gupta to get the sale deed registered but eventually the sale deed was not executed. Under the circumstances, the plaintiff herein i.e. Ashish Gupta is not entitled for decree of specific performance.