JITENDRA BATUKBHAI PATEL Vs. SHAILESH PRATAPBHAI MEHTA

JUDGEMENT

(1.) THIS appeal is filed against the judgment and order dated 30.4.1996 passed by the learned Civil Judge (S.D.), Bhavnagar in Special Civil Suit No.129 of 1988, whereby the suit filed by the present appellants-original plaintiffs was dismissed (hereinafter referred to as the "original plaintiffs" for the sake of convenience) against the present respondents-original defendants (hereinafter referred to as the "defendants" for the sake of convenience).

(2.) THE facts leading to filing of this appeal are such that the plaintiffs are residing at Bombay and are dealing in business of Diamond Cutting. On

(3.) NOW as per paragraph 10 of this agreement to sale, it is crystal clear that the present defendants have waived all rights in the property and if dispute is arising, then they will be only entitled to get Rs.2,00,000/-. As per this agreement to sale also, if the payment is not paid by the plaintiffs of Rs.2,00,000/- to the defendants, then the plaintiffs are required to make payment of Rs.25,000/- towards penalty and also to make payment of interest @18% p.a. Rs.2,00,000/-. It is also admitted fact that at the instance of plaintiffs, unauthorized occupants vacated the portion of the suit property and the plaintiffs are in absolute possession of the property. There is no force in the argument of Mr.Patel that against the provisions of the Tenancy Act by applying illegal means the plaintiffs have obtained the possession of the part of the disputed property and so the plaintiffs are not entitled to get any relief as claimed for. Dispute is not between tenant and landlord and so from any stretch of imagination, it could not be said that as the plaintiffs have vacated the tenant or the authorized occupants from the part of the suit property, without adopting the legal course, plaintiffs are not entitled to get any relief as claimed for. Considering the terms and conditions of the agreement to sale, the defendants have sold the property to the plaintiffs and as part of the property was in possession of the third person, it could not be said that at lesser price the property is sold by the defendants to the plaintiffs. Though the defendants were not in absolute possession of the property, the plaintiffs have purchased the property by executing the agreement to sale and paid the amount of Rs.4,40,000/- to the defendants and as per the agreement to sale which is referred above, there is right of plaintiffs over the property and plaintiffs have to pay Rs.2,00,000/- and if the plaintiffs are at default to make payment then the defendants are only entitled to get Rs.25,000/- towards the penalty @18% interest over and above Rs.2,00,000/-. The trial Court has not, in opinion of this Court, properly interpreted this document at Exh.51-agreement to sale and committed error in holding that the defendants were not ready and willing to perform their part of the agreement and not ready to receive payment of Rs.2,00,000/- and not ready to execute the sale deed. In paragraph 8 of the plaint also, there is specific averment that if any order is passed by the Court the plaintiffs are ready and willing to pay Rs.2,00,000/- and affidavit Exh.42 is also filed by the plaintiffs before the trial Court that if any order will be passed by the Court then they are ready to deposit Rs.2,00,000/- within a stipulated time. Even otherwise, if the plaintiffs are not ready to make payment of Rs.2,00,000/- then also considering this above referred agreement to sale, the defendants are only entitled to get Rs.2,00,000/- and in default to get Rs.25,000/- towards penalty with interest @18% per annum. From the agreement to sale, intention of the parties is very clear that the defendants have already waived all the rights in the property and in default of payment of Rs.2,00,000/-, they are entitled to get Rs.2,00,000/- with penalty and 18% interest.