ASHISH GUPTA Vs. MONIKA 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.33-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.656 and 657 area 2.30 hectare (total 5.75 acres) 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.1,50,000.00 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.1,50,000.00 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 defendant No.1/respondent No.1 admitted receipt of Rs.1,50,000.00, however, it was stated that the sale consideration was not Rs.10.00 lacs, but it was Rs.17,82,000.00 and the agreements were executed on 1/2/2007 and 8/2/2007. It was further stated that when the plaintiff failed to pay the amount and was failed to abide by the terms of contract, notice was served upon him stating that the amount of earnest money is forfeited. It was also stated that the plaintiff has failed to perform his part of contract and, in fact, the defendant never intended to sell the land in question to a third party. Despite repeated requests made, the plaintiff failed to pay the amount of sale consideration to get the sale deed executed. It is also stated that till June, 2007 the plaintiff was obliged to execute the sale deed, but since he failed to do it, as such, notice was issued to him on 14/9/2007. According to the defendant, only to protract the proceeding the civil suit was filed, therefore, the plaintiff is not entitled for any relief.