PANCHAL VISHNUBHAI KHEMBHANDBHAI Vs. PRAJAPATI AMRUTLAL BHAICHANDDAS

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Principal Senior Civil Judge, Mehsana (hereinafter referred to as "trial Court") in Special Civil Suit No.175/2011 by which the learned trial Court has decreed the said suit of specific performance of Agreement to Sell executed by the appellant herein ­ original defendant, the original defendant has preferred the present First Appeal.

(2.) That the original defendant executed the Agreement to Sell dated 13.09.2010 in favour of the plaintiff and agreed to sell the undivided share of the suit land in favour of the plaintiff on the sale consideration mentioned in the said Agreement to Sell. That the original plaintiff paid the sum of Rs.5 lakh to the defendant towards earnest money. Even the said Agreement to Sell was got notarized before the Notary. As per the terms and conditions of the Agreement to Sell it was decided that the remaining amount of the sale consideration was to be paid to the defendant as and when he execute registered sale deed in favour of the plaintiff. As per the terms of the Agreement to Sell the duty was cast upon the defendant to obtain permission of division of block and was required to borne the expenses for division of the block. It was also further agreed that if the process of division of block is prolonged beyond the time fixed in the Agreement to Sell then there will be no limitation for execution of the Agreement to Sell. However, subsequently, the defendant though called upon to execute the sale deed on receipt of the full sale consideration, refused to execute the sale deed, the respondent herein ­ original plaintiff instituted the Special Civil Suit No.175/2011 before the learned trial Court for specific performance of the Agreement to Sell dated 13.09.2010 and also for permanent injunction. That in response to the summons and the notice served upon the defendant, the defendant appeared through his advocate and filed the reply / written statement vide Exh.11 to the plaint as well as to the injunction application. It was the case on behalf of the defendant that after executing the Agreement to Sell in favour of the plaintiff, he immediately started the process for division of the block number however, his family members did not support / extend their cooperation in the process of division of the block number and therefore, in absence of the division of the block of the suit land it has become impossible for him to execute the registered sale deed in favour of the plaintiff and therefore, he has canceled the Agreement to Sell by issuing notice to the plaintiff and also requested him to receive the amount of sale consideration which he had received from the plaintiff.

(3.) It is vehemently submitted by Shri Yogendra Thakore, learned advocate appearing on behalf of the appellant herein ­ original defendant that while passing the impugned judgment and decree of specific performance of the Agreement to Sell dated 13.09.2010, the learned trial Court not properly appreciated and/or interpreted the terms and conditions of the Agreement to Sell.