JEBUNISHA MAHMMAD MULLA Vs. RASHIDA IBRAHIM SHAIKH

JUDGEMENT

(1.) This Appeal under section 100 of the Code of Civil Procedure, 1908 is at the instance of original defendant against whom respondent herein had filed Regular Civil Suit No. 37 of 2006 praying for mandatory order directing the appellant to execute registered sale deed in respect of suit property bearing survey No. 639, Block No. 715 admeasuring 3 hector, 15 Are, 10 Sq.meter situated at Mangrol, District Surat, by accepting remaining amount of sale consideration of Rs. 100,000.00 from the respondent. The respondent has also prayed for execution of the sale deed through the Court Commissioner, on failure of the appellant to execute sale deed and also for permanent injunction restraining the appellant from transferring the suit land or in any manner dealing with the suit land except transferring the same to the respondent.

(2.) The suit was resisted by the appellant by filing written statement at exhibit 18 whereby the appellant not only denied the execution of agreement to sell but also denied the receipt of notice at her address and simultaneously contended that the suit was time barred. It was also stated in the written statement that the factum of issuance of notice was just created to earn sympathy of the Court because if at all the respondent was ready and willing to pay the remaining amount of considerations, the respondent could have deposited such amount of consideration with the Court but no such procedure to deposit the remaining amount of consideration was taken by the respondent.

(3.) At this stage, it is required to be noted that the suit for specific performance of the contract was on the basis of registered agreement to sell dated 27.12.2002 and price for the suit land agreed upon was Rs. 1,48,400.00 out of which 48,400.00 was stated to be paid in cash by the respondent to the appellant. The agreement to sell further recorded that the remaining amount of consideration of Rs. 100,000.00 was to be paid on or before 31.12.2002 and on payment of such amount, the appellant agreed to execute the sale deed.