MAMTABEN RAJESHBHAI JANI Vs. RAMNIKBHAI BECHARBHAI BUDDHDEV

JUDGEMENT

(1.) This appeal is filed by the original defendants to challenge the judgement and decree dated 21.10.2014 passed by the learned Additional Senior Civil Judge, Rajkot, in Special Civil Suit No. 168 of 2011. Being First Appeal, the appellant is entitled to raise all questions of law and facts. Ordinarily, First Appeals are admitted liberally provided the appellant shows at least some prima facie arguable case. However, in the present case, having heard learned advocates for the parties at considerable length, we notice no arguable point in favour of the appellants. We propose to dismiss the appeal for folowing reasons.

(2.) Respondent-Original plaintiff had filed Special Civil Suit seeking execution of an agreement to sale dated 19.07.2011 of Flat No. 302 of Rani Tower-B, Rajkot. According to the plaintiff, the defendants-mother and daughter were the owners of the said property. They were interested in disposing of the property. The defendants were permanent residents of UK. The plaintiff got in touch with them through a middle man Dhirenbhai Thakkar. The defendants had indicated Rs. 30 lacs as a sale price. Plaintiff agreed to pay the same and actually paid a sum of Rs. 10,95,000/- in UK on 14.06.2011. The defendants had agreed to execute the sale deed in favour of the plaintiff. Defendant No.1 then came to Rajkot. However, after meeting with the plaintiff, she started evading the topic of execution of sale. The plaintiff therefore, gave an advertisement in Akila New Paper on 19.07.2011 putting general public at large to notice about such agreement. Defendant No.1 thereupon, demanded further sum of Rs. 3.50 lacs over and above the agreed price of Rs. 30 lacs for the said flat. The plaintiff agreed to this price revision and paid a further sum of Rs. 4,05,000/- in cash on 19.07.2011 which, the defendant No.1 accepted and executed an agreement to sale on a stamp paper which was signed by her for herself and as power of attorney holder of her daughter, defendant No. At that time, Harishbhai Joshi and Dhirenbhai Thakkar were present as witnesses. Advocate Jatin Kariya had also signed. The defendant had also given receipts for the cash payments. Thus, the plaintiff had paid a total sum of Rs. 15 lacs towards the sale consideration. The defendants still did not execute the sale deed and showed inability to do so. The plaintiff therefore issued a legal notice through his advocate on 23.07.2011 to the defendants. A public notice was issued on 09.08.2011. Defendants were also contacted who flatly refused to execute the sale deed. The plaintiff was always ready and willing to perform his part of the contract. He was prepared to pay the remaining sale consideration of Rs. 18,50,000/-. The defendants, however, refused to accept the same and execute the sale deed. With these averments the plaintiff sought a decree of specific performance of the agreement to sale dated 19.07.2011.

(3.) The defendants appeared and filed a written statement at Exh 27 in which, the factum of having received a sum of Rs. 10,95,000/- in UK was not disputed. However, the main stand taken to oppose the suit was that she was mislead about the correct sale price of the flat by the middle man Dhirenbhai Thakkar. The correct market price of the flat on the date of agreement was Rs. 55 lacs. When defendant No.1 came to India, she contacted Pankajbhai Parekh, the Chairman of the Rani Tower Association who told her that the market price of the flat cannot be less than Rs. 55 lacs. She contended that the agreement dated 19.07.2011 was signed by defendant No.1 under force and coercion. It was averred that defendant No.1 had not signed the agreement to sale voluntarily. It was on account of force and coercion by Dhirenbhai Thakkar that she was made to sign. It was stated that the defendant had not read or followed the contents of agreement to sale.