SHEETAL GHOSH Vs. GANESH CHAND JAIN

JUDGEMENT

(1.) This is the defendant's First Appeal under Section 96 of the CPC assailing the legality, validity and correctness of the judgment and decree dated 30.3.2013 passed by the 5th ADJ, Durg in Civil Suit No.18- A/2011 decreeing the plaintiff's suit for specific performance.

(2.) The suit property consists of land ad measuring 2400 square feet and the house constructed thereupon bearing Khasra No.267/325 at Shikshak Nagar, Charoda, Tehsil Patan, District Durg. As per the plaint allegations, the defendant executed an agreement on 15.11.2007 for sale of the suit property to the plaintiff for Rs.9 lakhs and received advance amount of Rs.1 lakh on 17.11.2007 and executed agreement (Ex.-P/1) on the said date. It was agreed that the balance amount of Rs.4 lakhs shall be paid by 30.11.2007 and the remaining balance of Rs.4 lakhs shall be paid after the plaintiff obtains housing loan. Before execution of the sale deed, the defendant shall evict the tenant residing in the suit house. It was further stated that the plaintiff prepared an account payee demand pay order for Rs.4 lakhs on 30.11.2007 and went to the defendant's house. However, in the absence of defendant, his wife was handed over photo-stat copy of the draft informing her that her husband should collect the draft on his return and complete the documentation so that the plaintiff applies for housing loan. The defendant came to the plaintiff's house on 5.12.2007 and informed that he has forgotten to bring the documents. The plaintiff got published one public notice about the agreement but the defendant came out with a reply to the public notice repudiating the contract/agreement, whereupon the plaintiff served a counter reply to the defendant's lawyer on 14.12.2007. The defendant further informed the plaintiff that the agreement has been cancelled.

(3.) It was further stated that the plaintiff again requested the defendant that he would agree to purchase the property without obtaining loan but the defendant again denied to execute the sale deed. The plaintiff was thus ready and willing to perform his part of the contract and prayed for decree for specific performance.