OM PRAKASH Vs. RAM KISHAN GUPTA

JUDGEMENT

(1.) SUNIL Ambwani, J. These two second appeals arises out of Original Suit No. 166 of 1986, Ram Kishan v. Om Prakash, real brothers, for specific performance of agreement dated 28-3-1985, and Original Suit No. 409 of 1986, Om Prakash v. Ram Kishan, for arrears of rent and ejectment. The trial Court consolidated both the suits and by a common judgment and order dated 30-3-1989, O. S. No. 166 of 1986 was dismissed for relief of specific performance of contract. It was decreed for alternative relief of Rs. 10,000 with cost. The trial Court decreed O. S. No. 409 of 1986 for arrears of rent at Rs. 500 per month w. e. f. 11-7-1986 and for eviction. The trial Court declared that the firm shall stand dissolved w. e. f. 11-7- 1986 and issued a Commission to prepare the accounts of the assets and liabilities of the firm. The defendant-Ram Kishan was asked to submit the account within two months with liberty to Om Prakash to issue a commission on his own expenses. The suit was directed to be pending till the preparation of final decree.

(2.) RAM Kishan filed First Appeal No. 328 of 1989 against the judgment and decree dated 30-3-1989 in O. S. No. 166 of 1986 and Civil Appeal No. 104 of 1989 against the judgment and decree of the same date in O. S. No. 409 of 1986. The appellate Court by its judgment dated 15-12-2005 allowed the First Appeal No. 328 of 1989 and decreed O. S. No. 166 of 1986 for specific performance of agreement dated 28-3- 1985 directing Om Prakash to execute the sale-deed on receipt of Rs. 35,000 from RAM Kishan, failing which the sale-deed was to be executed through Court. The appellate Court partly allowed Civil Appeal No. 104 of 1989 and the decree for arrears of rent and eviction was set aside. However, the decree for accounting of the partnership firm was maintained with direction to RAM Kishan to produce all the accounts of the firm for the period 12-12-1976 to 10-7-1986 within one month.

(3.) OM Prakash further stated in his written statement in O. S. No. 409 of 1986, that he was busy in his commission agency business of vegetables and relied upon his brother for doing business in the shop. In the year 1985 when the goods and stock were inspected, he was told by Ram Kishan that he had made investment of Rs. 10,000 from his share. By way of mutual accounting OM Prakash was found to be due for Rs. 10,000 in business. He did not have the amount available with him and as such executed the registered agreement by way of security for payment of Rs. 10,000. They were informed by the scribe at Anoop Sahar that expenses of execution of mortgage deed will be more than the expenses for agreement. Ram Kishan was fully aware at the time of execution of the agreement that he was not willing to sell the house and that Rs. 10,000 were not paid as part sale consideration. In the circumstances, the agreement is not liable to be enforced.