DEVICHAND CHOPDA Vs. DURGA RAM SAHU

JUDGEMENT

(1.) This appeal has been preferred by the Plaintiff under Sec. 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dtd. 2/4/2014 passed by Second Additional District Judge, Balod, District Balod (C.G.) in Civil Suit No.09-A/2013, whereby the learned trial Court has dismissed the Plaintiff's claim for specific performance of contract. The parties to this appeal shall be referred hereinafter as per their description before the Court below.

(2.) The facts, which are essential to be stated for adjudication of this appeal, are that a claim for specific performance of contract was made by the Plaintiff by submitting, inter alia, that Defendant No.1 has agreed to alienate the land in question bearing Khasra No.621/2 admeasuring 1.75 acres in his favour under an agreement to sale dtd. 18/12/2010 for a consideration of Rs.50,00,000.00 upon receiving an earnest amount of Rs.25,000.00. According to the Plaintiff, a cheque bearing No.803619 of State Bank of India for Rs.2,75,000.00 was issued by him on 21/12/2010 as per the terms and conditions stipulated therein and which was received by the said Defendant and the registered deed of sale was to be executed by or before 31/5/2011 upon receiving the balance amount of Rs.47,00,000.00 in cash. However, despite receiving the said cheque, it was not executed and instead the said Defendant was trying to alienate the land in question to someone else, therefore, he got the paper notice published in daily newspaper "Nayi Duniya" on 29/12/2010 and issued a notice to the concerned Patwari and Deputy Registrar on 5/1/2011 with a request for not to get the sale deed registered in favour of anyone else in respect of the property in question. It is pleaded further by way of amendment that the actual area of the property available on the spot is 1.25 acres (0.507 hectare) instead of 1.75 acres and he is still ready to get the same in the said rate agreed by him upon the alleged agreement. It is pleaded further that when the said Defendant has failed to execute the registered deed of sale despite the issuance of notice dtd. 23/5/2011, the Plaintiff has been constrained to institute the suit in the instant nature, instituted on 23/6/2011.

(3.) While denying the aforesaid claim, it is pleaded by Defendant No.1 that since he is not the owner of the property in question, i.e., Khasra No.621/2 admeasuring 1.75 acres and has never agreed to alienate the same, therefore, no agreement as such was executed by him and the Plaintiff, while suppressing the material facts in this regard, has obtained the alleged agreement to sale by playing fraud upon him and in so far as the land in question bearing Khasra No.621/2 admeasuring 1.25 acres is concerned, the same is, however, the ancestral property and he alone is not the owner of it. It is contested further on the ground that the amounts were required to be paid by cash according to the terms and conditions of the alleged agreement, therefore, issuance of alleged cheque dtd. 21/12/2010 instead of depositing the said amount of Rs.2,75,000.00 by cash has frustrated the alleged agreement and the Plaintiff has, thus, failed to perform his part of the contract and would, therefore, be not entitled to get the decree for specific performance of contract based upon the alleged agreement to sale.