RAMLATA SINGH Vs. ARUN KUMAR DUBEY

JUDGEMENT

(1.) The moot question involved in this second appeal is : Can specific performance of contract relating to immovable property be arbitrarily refused by the Court?

(2.) The late Balji Dubey, father of the defendant-respondents, executed a registered agreement to sell, covenanting to transfer by sale land comprising Arazi No. 204 (M), admeasuring 14 biswa and 15 dhur, out of the total area of the plot admeasuring 3 bigha 5 biswa 15 dhur, situate at Mauza Gothaura, Pargana Bhuili, Tehsil Chunar, District Mirzapur, in favour of the plaintiff for a total sale consideration of Rs.30,000/-. An earnest of Rs.15,000/- was paid at the time of contract. The land contracted to be sold as aforesaid, shall hereinafter be referred to as "the suit property". The contract was executed and registered on 29.06.1994. It was covenanted in the suit agreement that the plaintiff would be entitled to call upon the vendor, whenever she wanted the sale deed to be executed in her favour, in terms of the agreement. The plaintiff appears to have called upon Balji a number of times over to execute the sale deed, but he did not discharge his obligations. Pending the unfulfilled promise under the suit agreement, Balji Dubey passed away, leaving behind him, his widow and his sons, Arun Kumar Dubey and Sanjay Kumar Dubey. The plaintiff got a notice served upon the heirs of the late Balji Dubey on 31.12.1996, calling them to come forward and execute a sale deed in terms of the suit agreement. Since that was not done, she instituted Original Suit no.10 of 1997 before the Court of the Civil Judge (Sr. Div.), Mirzapur, praying that a decree for specific performance in terms of the suit agreement be passed in her favour and against the defendant-respondents. In the alternate, relief of refund of the earnest of Rs.15,000/- together with interest at the rate of 2% per month was claimed.

(3.) The defendant-respondents entered appearance and filed a joint written statement, traversing the plaint allegation. They took the defence that Balji had never executed the suit agreement. The agreement did not bear the signatures or thumb marks of the defendants. The plaintiff had set up an imposter to execute the agreement. Their predecessor-in-title, Balji had not received a penny towards the earnest, mentioned in the suit agreement. The plaintiff was neither ready nor willing to get a sale deed executed in terms of the agreement. The suit is barred by Section 16 of the Specific Relief Act, 1963 (for short "the Act of 1963") as well as the provisions of the U.P. Land Development and Mortgage Act. The plaintiff never served upon the defendants any notice, and, therefore, all allegations regarding service of the notice are baseless. The defendants asked the suit to be dismissed with costs.