LALA SUMER CHAND GOEL Vs. RAKESH KUMAR

JUDGEMENT

(1.) The defeated defendant has preferred this Second Appeal against the judgment and decree dated 23-3-1984 passed by Shri K.K. Srivastava, the then learned Additional District Judge, Saharanpur in Civil Appeal No.337 of 1980 confirming the decree of specific performance passed by trial Court and also awarding decree of recovery of Rs.500.00 arising out of original suit No.10 of 1979.

(2.) The respondent Rakesh Kumar, hereinafter, called the plaintiff filed suit against original appellant Lal Sumer Chand Goel, hereinafter called the defendant for specific performance of contract dated 9-9-1975 executed by defendant in favour of plaintiff and for recovery of Rs.500.00 on the ground that the defendant Lal Sumer Chand Goel entred into a contract of sale with the plaintiff on 9-9-1975 to sell the property detailed at the foot of the plaint for a sale consideration of Rs.4000.00. The plaintifff paid whole sale consideration of Rs.4,000.00 to the defendant on 9-9-1975 and the defendant in lieu of it executed an agreement to sell. The defendant also handed over possession of the disputed property to the plaintiff. The sale deed was to be executed after obtaining permission for sale and defendant had to inform the plaintiff regarding permission. The plaintiff had also showed himself the holder of general power of attorney on behalf of his real brother Dharam Chand and had also right to transfer the share of Dharam Chand. After execution of the agreement deed, the plaintiff met Dharam Chand, who informed him that he had not executed any power of attorney in favour of plaintiff. Thereafter, plaintiff demanded from the defendant the said power of attorney, but he evaded and failed to show on the ground that it was lost somewhere. The plaintiff had to pay a sum of Rs.500.00 to Dharam Chand regarding his share. Dharam Chand also executed a deed on 13-9-1975. The defendant assured to execute sale deed in respect of his share in the property in suit excluding the share of Dharam Chand. The defendant neither executed sale deed despite of service of registered notice nor returned the amount of Rs.500.00, hence the suit.

(3.) The defendant contested the suit. However, he admitted the execution of deed of agreement dated 9-9-1975, after receipt of Rs.4000.00 as sale consideration and also admitted the delivery of the possession of the property in suit to the plaintiff. The defendant denied that Dharam Chand Goel had any interest or share in the property in suit. He never entered into the agreement to sell on behalf of Dharam Chand nor he assured the plaintiff about any power of attorney being held by him on behalf of Dharam Chand. The contention to that effect existed in the agreement dated 9-9-1975 was challenged as being a result of fraud and he was not liable to refund Rs. 500.00. He further contended that the plaintiff never served any notice dated 12-9-1978 calling upon him to execute sale deed and he never refused to accept said notice. He further contended that defendant had always been ready and willing to perform his part of the contract. On receipt of notice dated 26-9-1978 the defendant went to the office of Sub Registrar on 30-10-1978 and was ready to execute the sale deed there he came to know that the office of Sub Registrar was closed on 1-11-1978. He again went to the office of Sub Registrar on 2-11-1978 and remained present there during whole day, but the plaintiff did not turn up. Thereafter, on 6-11-1978 the defendant served a notice to the plaintiff intimating him that the agreement to sell dated 9-9-1975 has been repudiated and cancelled. It had come to end and the consideration received has been forfeited. The plaintiff was further called to deliver vacant possession of the property in dispute within 15 days along with damages at the rate of Rs.80.00 per month. Therefore, the defendant was no longer bound by agreement dated 9-9-1975 to execute sale deed in favour of plaintiff.