JOGENDRA SINGH Vs. MUKUL JOSHI AND ORS.

JUDGEMENT

(1.) Second Appeal is directed against the judgment and its decree dated 21.03.2017, passed by Addl. District Judge, Ramnagar, District Nanital in Civil Appeal no. 11 of 2016, Jogendra Singh Vs Smt. Mukul Joshi & another, whereby the appeal filed by the plaintiff / appellant has been dismissed and the judgment and order dated 04.01.2016, passed by Civil Judge (Sr. Div.), Ramnagar, Nainital in Original Suit no. 09 of 2011.

(2.) Factual matrix of the of the case are that the appellant / plaintiff instituted a suit for specific performance of contract with the averments that defendant no. 2 Girish Chandra Joshi is the recorded owner of the suit property. He executed registered Power of Attorney in favour of his wife Smt. Mukul Joshi (defendant no. 1) on 30.11.2010 and authorized her to sell the said property. She offered to the plaintiff that she wish to sell the suit property for an amount of Rs.9,28,000/-. A registered agreement to sell was executed between them on 03.01.2011. An amount of Rs.4,50,000/- was paid by the plaintiff to defendant no. 1 in presence of the witnesses and remaining amount was decided to be paid upto 15th June 2011, which was the last date to perform the part of contract. It was also mentioned in the agreement to sell that in case the defendant no. 1 would refuse to execute the sale deed in favour of plaintiff, in that case the plaintiff will be entitled to get the sale deed executed in his favour through a decree of the court. Plaintiff requested defendant no. 1 to accept the balance amount and execute the sale deed in his favour, but to no avail. On this, the plaintiff served a notice dated 27.06.2011 to the defendant through his counsel stating therein that the defendants should reach the office of Sub Registrar, Ramnagar on 30th June 2011 to perform their part of contract. On 30.06.2011, plaintiff reached the office of Sub Registrar along with the balance amount, but the defendants did not appear. Again on 08.07.2011, plaintiff sent a notice to the defendants stating therein that the defendants should reach the office of Sub Registrar, Ramnagar on 13.07.2011, at 10:00 a.m., and after receiving the balance amount in cash get the sale deed executed in favour of the plaintiff, otherwise he will be constrained to file civil and criminal cases against them. Even then, the defendants did not execute the sale deed in favour of the plaintiff. Lastly, the plaintiff instituted a suit against the defendants on 10.08.2011 seeking specific performance of contract.

(3.) Defendants filed their written statement and made a counter claim that by playing fraud the plaintiff has succeeded to get the agreement to sell executed in his favour with the connivance of his nephew Preetpal Singh Karakoti, to whom the property was to be sold at the rate of Rs.13.50 lakhs per bigha and an agreement to sell was executed on 30.12.2010 between Preetpal Singh and defendant no. 2. Later on when Preetpal Singh showed his inability to purchase the land in question at the agreed rate, defendant no. 2 got executed a registered Power of Attorney in favour of his wife (defendant no. 1).