RAM KUMAR Vs. VIRENDER SINGH

JUDGEMENT

(1.) THESE appeals, preferred under Sec tion 100 of the Code of Civil Procedure, 1908, are directed against the judgment and decree dated 21-01-2004, passed in Civil Appeal No. 167 of 2001 by the then learned Additional District Judge / Fast Track Court II, Dehradun, whereby the said appeal is allowed and Original Suit No, 747 of 1995 is decreed for spe cific performance of contract under agreement of sale.

(2.) I heard learned counsel for the parties and perused the record.

(3.) THE trial court framed as many as ten issues. After recording the evi dence and hearing the parties, the trial court found that the defendant Ram Kumar did execute agreement of sale on 05-06-1995 in favour of the plaintiff Virender Singh to sell his land for con sideration to the tune of Rs. 42. 000/ -. It further found that Rs. 10. 500/- were received by the defendant Ram Kumar at the time of executing the agreement and Rs. 20,500/- before executing it. As to the readiness and willingness on the part of the plaintiff to perform his part of contract it was found that he was ready and willing to perform his part of contract. On the point of limitation, the issue was decided in negative i. e. in fa vour of the plaintiff as the defendants did not press it. Similarly, issue on the point whether the suit is barred by vari ous provisions of the Specific Relief Act, that too was not pressed by the defend ant Ram Kumar and said issue was also decided in favour of the plaintiff. THE trial court also found that suit is not bad for non- joinder of the Land Devel opment Bank as no relief has been claimed against it. THE trial court fur ther found that the agreement of sale in question is not void or ineffective on the ground that the property in question was already mortgaged by the defendant Ram Kumar to the Bank, from which he had taken the loan. As to the objection of defendant Sumer Chand, it was found that said defendant had no share in plot No. 1368, in respect of which the agreement of sale was executed. Issue on the point of valuation and court fee was decided against the defendants. Lastly, it was found that the defendant Ganga Prasad @ Jai Prasad is not a bonafide purchaser of the property from the defendant Ram Kumar and transac tion was sham, as such, the sale deed in favour of the defendant Ganga Prasad @ Jai Prasad have no impact in the suit for specific performance of contract against the defendant Ram Kumar. However, the trial court did not decree the suit for spe cific performance of contract, but decreed only for refund of Rs. 31,000/- (considera tion passed from plaintiff to the defend ant Ram Kumar) with interest at the rate of 6% per annum with quarterly rests. THE reason for not decreeing the suit for spe cific performance of contract, but for re fund of the aforesaid amount, given by the trial court is that the property to be sold by the defendant Ram Kumar was al ready mortgaged with the Bank and the plaintiff was not ready and willing to pur chase the property subject to the encum brance.