PADAM JAIN Vs. HEMRAI

JUDGEMENT

(1.) Challenge in this appeal is to the legality and validity of the judgment and decree dtd. 2/2/2018 passed in Civil Suit No.62-A/2015 whereby the suit filed by the petitioners/plaintiffs for specific performance of contract has been dismissed. For the sake of convenience, parties shall hereinafter be referred to as per their description before the trial Court.

(2.) Briefly stated, case of the plaintiffs is that there is a land situated at Village-Pulgaon, PHN 18/25, Khasra No.193/1, area 1.676 hectare in the joint ownership of defendants No. 1 to 5. Defendants No. 1 to 3 on behalf of their sisters defendants No. 4 & 5 entered into an agreement with the plaintiffs for sale of the aforesaid land on 30/9/2014 @ Rs.38.00 lacs per acre and as an advance, Rs.2.00 lac cash and one post-dated cheque of Rs.3.00 lacs of Syndicate Bank, Branch-Durg was received. On the date of execution of the agreement, it was agreed between the parties that Rs.20.00 lacs shall be paid by 10/11/2014 and after receiving rest of the amount of sale consideration within six months from the date of execution of agreement i.e. 30/9/2014, registered sale deed shall be executed either in the name of the plaintiffs or any other persons at the instance of the plaintiffs. Later on, after taking back those post-dated cheques, defendants No.1 to 3 were given cash of Rs.1.60 lacs and 1.40 lacs. As per agreement, Rs.20.00lacs was to be paid by 10/11/2014 and hence being in need of money when on 3/11/2014 defendant No.3 demanded Rs.5.00 lacs cash from the plaintiffs out of the aforesaid amount of Rs.20.00 lacs, the plaintiffs gave RTGS Cheque No.249516 of Rs.5.00 lacs of Syndicate Bank, Durg. The plaintiffs deposited Rs.20.00 lacs in Syndicate Bank, Durg and informed defendants No. 1 to 3 orally but they replied that since as of now they are not in need of money, so they will inform them whenever needed. The plaintiffs requested defendants No. 1 to 3 for taking Rs.15.00lacs but they did not agree, on which a registered notice along with three cheques, each of Rs.5.00 lacs, was sent on 27/11/2014 by the plaintiffs to them and after receipt of the said notice on 28/11/2014, defendants No. 1 to 3 on behalf of their sisters defendants No. 4 & 5 on 6/12/2014 sent a notice through an advocate which was replied by the plaintiffs. The defendants are refusing to execute sale deed in favour of the plaintiffs whereas they have always been ready and willing to perform their part of contractual obligations. Hence this suit.

(3.) Respondents No. 1 to 3 in their written statement contended that the suit property is the joint Hindu property of defendants No. 1 to 5 and as such, they have equal right and share over the suit property. However, the agreement based on which the present suit is filed, is incomplete, illegal and void because it does not bear signatures of all the defendants and has not been executed by the defendants. There is no written or oral consent of defendants No. 4 and 5. The plaintiffs fraudulently obtained signature of defendants No. 1 to 3 on the first and last page of the agreement by taking advantage of their illiteracy and ignorance. Defendant No.3 never demanded Rs.5.00 lacs from the plaintiffs and in fact, it is plaintiff No.1 who out of his own free will deposited Rs.5.00 lacs in District Central Cooperative Bank, Durg without intimation to defendant No.3 whereas defendants No. 1, 2, 4 & 5 had not given any oral or written consent for the same to the plaintiffs. No such agreement was ever executed by the defendants in favour of the plaintiffs. In order to grab the suit land, the plaintiffs have committed forgery and prepared this agreement. It was specifically averred that the defendants agreed to sale the suit land @ Rs.1.50 crores per acre but the plaintiffs by forgery made it @ Rs.38.00 lacs per acre. Since the said agreement does not bear signature of defendants No. 4 & 5 and their mother Sumotin Bai (dead), therefore, it is void ab initio. Therefore, the suit is liable to be dismissed with cost and each of the defendants be awarded Rs.5.00 lacs as compensation.