BANWARI LAL SHARMA Vs. SANJAY GHAI

JUDGEMENT

(1.) The appellant/plaintiff has filed this First Appeal under Sec. 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dtd. 15/11/2018 passed by Upper District Judge (FTC), Distt. Korba in Civil Suit No.45A/2013, whereby the suit filed by the plaintiff for specific performance of contract regarding sale of land bearing Khasra No.799/3, area 10 decimal (0.040 hectare) situated at village Risda, Patwari Halka No.10, Tahsil and Distt. Korba (CG) (for short 'suit land'), has been dismissed. (For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.)

(2.) The facts, leading to file instant first appeal, are that, the defendant entered into an agreement for sale of suit land with the plaintiff and agreement to sale was executed between them on 7/10/2005. Sale consideration was fixed as Rs.1.00 lakh and Rs.50,000.00 was given by the plaintiff to the defendant as advance amount. It was agreed between the parties that since suit land was diverted land, therefore, defendant shall obtain necessary permission from the Collector, Korba and one month after getting the permission, sale deed will be executed in favour of the plaintiff. Subsequently, the defendant also received remaining sale consideration of Rs.50,000.00 cash on 5/5/2006 from the plaintiff and executed power of attorney in favour of the plaintiff. It is further pleaded that with the consent of both the parties, the defendant mortgaged aforesaid suit land against the loan taken by the plaintiff from SBI Korba. Despite repeated request and notice, the defendant did not execute sale deed in favour of the plaintiff and he is trying to sell the suit land on higher value to other persons, whereas, the plaintiff is ready to perform his part of contract. Therefore, the plaintiff filed suit for specific performance of contract against the defendant.

(3.) The defendant filed written statement stating inter alia that after three months of the execution of the agreement to sale, as the plaintiff had taken loan from the bank for his LPG refilling station, therefore, on being asked by the plaintiff, he (defendant) mortgaged his suit property in favour of the Bank and also deposited original documents of the suit land. He has further pleaded that neither he has executed alleged power of attorney in favour of the plaintiff, nor remaining sale consideration has been given to him by the plaintiff. Despite repeated request made by the defendant for redemption of suit land, the plaintiff did not redeem the suit land and, therefore, he (defendant) could not get permission from the Collector, Korba. However, the defendant is always ready to perform his part of contract, but, the plaintiff himself has failed to perform his part of contract, rather he himself created complication by depositing original document of the suit land with the Bank against his loan and not getting it back. Therefore, the suit is liable to be dismissed.