GANESH SUNDRANI Vs. TEJ KUMAR BAJAJ

JUDGEMENT

(1.) By this appeal under Section 96 of the Code of Civil Procedure, 1908 (for short 'CPC') the appellant has challenged the legality & propriety of the judgment & decree dated 09.09.2011 passed by the Additional District Judge, Dhamtari in Civil Suit No.33-A/11 whereby the trial Court has decreed the suit of the plaintiff/respondent No.1 herein for specific performance of contract against the defendant No.1/ appellant herein.

(2.) As per plaint averments, the appellant entered into an agreement with the respondent No.1 on 4.5.2005 for the sale of his land bearing Khasra No.829 area 1.980 hectare, situate at village Kodebad @ Rs.2,41,000/- per acre. He had also received an advance of Rs.3,00,000/-. On account of necessity, the appellant further received a total sum of Rs.3,00,000/- through his son on 26.8.2005 & 1.9.2005 and thereby the respondent No.1 has paid total sum of Rs.6,00,000/- to the appellant prior to the date of execution of sale deed. The appellant was under obligation for demarcation of the land. At the time of execution of agreement (Ex.P-1), the appellant insisted the respondent No.1 for providing original copy of the agreement then an agreement was further typed upon the stamp of Rs.50/-, which was brought by the appellant, and the same was given to the appellant. On 17.10.2005 the appellant had executed sale deed in favour of the respondent No.1 in respect of 0.099 hectare after receiving Rs. 1,85,000/-. The respondent No.1 tried to persuade the appellant for execution of sale deed for remaining part of land but he failed to execute the sale deed and finally the suit for specific performance of contract was filed on 3.5.2008. The respondent No.1 was ready and willing to perform his part but the appellant was not ready and willing to perform his part.

(3.) By filing written statement, the appellant herein has admitted the fact that he entered into an agreement with the respondent No.1 for the sale of his land bearing Khasra No.829, area 1.980 hectare @ Rs.2,41,000/- per acre, but denied the date of execution of agreement as 04.05.05. He has also denied receipt of advance of Rs.3 Lac. He has denied further receipt of Rs.3 Lac through his son. He has admitted execution of sale deed on 17.10.2005. As per written statement, time was the essence of the contract. Agreement (Ex.D-1) has been executed by the appellant on 17.10.2005. The respondent No.1 was ready to execution of sale deed in respect of half of the land and was not ready for execution of sale deed in respect of the entire land. Agreement of Ex.D-1 was the original agreement written by the appellant which has been torn by the respondent No.1. The appellant has performed his part of obligation but the respondent No.1 was never ready & willing to perform his part, therefore, the respondent No.1 is not entitled for decree of specific performance of contract.