AVINASH AGARWAL Vs. STATE OF U.P

JUDGEMENT

(1.) This appeal has been filed under Sec. 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as, "the Code") being aggrieved by the judgment and decree dtd. 14/10/2016, passed by learned Ist Additional Civil Judge (Senior Division), Dehradun in Original Suit No. 274 of 2014, "Deepak Kapoor and two others Vs. Sri Ashok D. Mehta and others," whereby in a suit for specific performance of contract with ancillary relief of perpetual prohibitory injunction, a decree for specific performance of contract is refused and granted alternate relief of refund of earnest money a sum of Rs.25,00,000.00 with compensation a sum of Rs.25,00,000.00.

(2.) Brief facts of the case are that the appellants- plaintiffs filed the suit seeking specific performance of the Agreement to Sell dtd. 3/10/2006, registered on 27/10/2006. It was pleaded by the appellants/plaintiffs that the respondent nos. 1 and 2/defendants were owners of property No. 185, Rajpur Road, Dehradun, measuring 2400.00 Sq. yards or 2007.00 Sq. mtrs. with a residential house. The respondent nos. 1 and 2 had entered into an agreement to sell with the appellants and proforma respondent no.6 on 3/10/2006 for the sale of the above mentioned property for a sale consideration of Rs.69,00,000.00. This agreement was registered on 27/10/2006. As per Clause No. 7 of the Agreement, it was agreed that the sale deed shall be executed within a period of three months from the date of the agreement or within one month from the date the probate was granted with regard to the Will of late Smt. Dorothy Margaret Mehta. According to this agreement, Rs.25,00,000.00 was paid towards earnest money. The appellants were always ready to perform on their part of contract. But, the respondent nos.1 and 2 executed a Sale Deed dtd. 14/3/2012 in favour of the respondent nos.3 to 5, which was registered on 16/6/2012. The respondent nos. 3 to 5 had knowledge of the agreement dtd. 3/10/2006. The respondent nos.1 and 2 had no right or authority to sell the property-in-question and hence, they had committed breach of the Agreement to Sell dtd. 3/10/2006, in which, there was a specific clause of specific performance and hence the respondent nos. 1 and 2 had no right to transfer the property or execute the sale deed in favour of anyone except the appellants and proforma respondent no.6.

(3.) The appellants-plaintiffs instituted the suit for decree of specific performance of contract and in alternate refund of money with ancillary relief of perpetual prohibitory injunction.