MITTHOO YADAV Vs. DURJAN YADAV

JUDGEMENT

(1.) Heard learned Counsel for appellant. This is a defendant's second appeal arising out of suit filed by plaintiff for specific performance of contract.

(2.) Allegation made in the plaint is that defendant was in need of some money, therefore, an agreement was executed for sale of property in Rs. 50,000. An agreement was executed after payment of Rs. 35,000/- as earnest money and rest of the amount was to be paid at the time of execution of sale-deed. This registered agreement was made on 11.8.1995. Specific condition in Clause IV of agreement was that as there is a requirement or permission from ceiling authority, therefore, defendant has to obtain permission and to intimate plaintiff for execution of the sale-deed. According to plaintiff, it was never intimated. In 2003, he came to know that now there is no necessity for permission then a registered notice was sent for getting sale-deed executed to defendant but when no reply was made then present suit has been filed for specific performance of contract. Defendant has filed his written statement as 16-K with certain document like 44-Ga to 45-Ga Nakal Khatuni and documents 34-G to 35-G. On behalf of defendant, D.W. has been examined.

(3.) Trial Court after considering the case of parties was pleased to frame various issues. One of the issues was whether plaintiff is entitled to get benefit of agreement dated 11.8.1995 and to get sale-deed executed. Whether Suit filed by plaintiff is within time. On Issue No. 1, a finding has been recorded that admittedly agreement has been executed on 11.8.1995 for Arazi No. 14 measuring about 0.6 decimal of one half share of defendant after taking Rs. 35,000/- as earnest money. On behalf of defendant, Receipt No. 35 is the receipt of payment of earnest money of agreement dated 11.8.1995. One of the question raised whether there is any compliance of section 16C of Specific Relief Act or not. Trial Court has recorded a finding that though from the record it does not appear that plaintiff was ready and willing to perform his part of the contract, therefore, defendant states that plaintiff is not entitled for any relief. Further defendant has claimed that suit is barred by time as it is being filed after seven years from the date of agreement. Trial Court after considering claim of parties was pleased to decree the suit only to the extent of refund of the amount which was paid at the time of agreement to the tune of Rs. 35,000/- with 8% interest from the date it was paid till the date of payment.