KRISHNA SWEET HOUSE Vs. GURBHEJ SINGH ALIAS HAPPY

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal (RFA) filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 27.2.2003 dismissing the suit filed by the appellant/plaintiff for specific performance of an agreement to sell dated 16.10.1993 with respect to the property being front portion of house No. H - 4/7, Model Town, Delhi -110009. Prayer was also made for cancelling of the sale deed executed by the original owners/defendant Nos.1 and 2 in favour of the defendant Nos.3 and 4/respondent Nos. 3 and 4/subsequent purchasers. It is relevant to note that the appellant/plaintiff was a tenant in a shop in the ground floor portion forming part of the property comprised in the agreement to sell, and from where the appellant/plaintiff runs the business of a sweet shop.

(2.) THE facts of the case are that the appellant/plaintiff pleaded that the parties had entered into an agreement to sell of the suit property, vide a receipt -cum -agreement dated 16.10.1993. The total sale consideration was fixed at Rs.4,70,000/ -, of which the appellant/plaintiff states to have paid an amount of Rs.10,000/ - on the date of the agreement to sell. The original seller/defendant No.1 -Sh. Hardit Singh and his wife -Smt. Inder Kaur/defendant No.2 expired during the pendency of the suit and were, thereafter, represented by their legal heirs. (For the sake of convenience, in this judgment, I am referring to the original proposed sellers as defendant Nos. 1 and 2.) The balance amount was stated to be payable as per the receipt -cum -agreement dated 16.10.1993 on respondent Nos.1 and 2/defendant Nos. 1 and 2/proposed sellers intimating to the plaintiff/proposed buyer of having obtained clearance from the income tax authorities. The receipt -cum -agreement to sell was signed only by defendant No.1/husband and not defendant No.2/Smt.Inder Kaur/wife. In the receipt -cum -agreement dated 16.10.1993 it was mentioned that defendant No.1 was fully competent to sell the same. The case of the appellant/plaintiff was further that defendant No.1 in January, 1995 asked for further payment and, therefore, on 4.1.1995 an amount of Rs.50,000/ - was paid in cash to defendant No.1, and to evidence which defendant No.1 executed a receipt, not only acknowledging the amount of Rs.50,000/ -, but also the agreement to sell contained in the previous receipt - cum -agreement dated 16.10.1993. The appellant filed the subject suit in December, 1995 alleging breach on the part of the defendant Nos. 1 and 2 because defendant Nos.1 and 2 wanted to receive the balance amount of consideration in cash, to avoid payment of income tax, and which was not agreeable to the appellant/plaintiff.

(3.) IN the suit. 4. After the pleadings were complete, the trial Court framed the following issues: -