MOHAMMAD ASRAF Vs. RUBINA BANO

JUDGEMENT

(1.) Challenge in this appeal filed under Sec. 96 of the Code of Civil Procedure, 1908 by the appellant/plaintiff is to the judgment and decree dtd. 28/08/2017 passed by the 9th Additional District Judge, Raipur (C.G.) in Civil Suit No. 11-A/2015; whereby the suit for specific performance of contract filed by the appellant/plaintiff was dismissed.

(2.) The undisputed facts in the case is that the suit property i.e. a house including Abadi land comprised in piece of Khasra No. 480/1 area 2133 square foot P.H. No. 109 upon which Kaccha house of 500 square feet is constructed, an agreement to sale was executed on 09/01/2012 between the plaintiff and the defendant. According to the said agreement (Ex.P-1) the last date of execution of sale deed was fixed as 31/03/2012.

(3.) Suit of the plaintiff in nutshell is that the defendant entered into an agreement of sale with the plaintiff on 09/01/2012 of the disputed property @ Rs.600.00 per square feet amounting to Rs.12,89,800.00. Rs.2,00,000.00 as advance money was also received by the defendant in presence of two witnesses and in continuation of the agreement out of remaining amount, Rs.2,50,000.00 was received by the defendant on 02/03/2012 on account of going to Gujarat for her personal work through her husband Mohammad Idris Memon. The acknowledgment of the same was made by the husband of the defendant on back side of the original agreement dtd. 09/01/2012. The defendant promised the plaintiff to get the sale deed, executed till 31/03/2012. Plaintiff met the defendant after she came back from Gujarat and requested for execution of the sale deed which was avoided by the defendant on one pretext or other. The plaintiff sent a legal notice through his Advocate on 04/06/2014 which was replied by the defendant on 16/06/2014 and denied the registration of the disputed property and stated that the advance money is forfeited. It is the further case of the plaintiff that as per condition of the agreement, the defendant was required to make available the necessary document, but, within that period she neither arranged the necessary documents for registration nor contacted the plaintiff. Further pleading goes to show that defendant has received Rs.4,50,000.00 as advance money from the plaintiff and in order to grab the said amount with malafide intention, she is refusing to register the sale deed; whereas the plaintiff is ready to pay the remaining amount as per the agreement and was always willing to execute the sale deed. Plaintiff further pleaded that public notice was also published in daily newspaper Dainik Bhaskar on 05/06/2014, therefore, the plaintiff prayed for a decree of specific performance and in alternative, refund of advance money of Rs.4,50,000.00 from the defendant.