RAM RATI Vs. FAKIRA

JUDGEMENT

(1.) This appeal is directed against the judgement and decree passed by the Civil Judge Roorkee at Saharanpur dated 30-10-76 dismissing the suit.

(2.) The appellant filed a suit for specific performance of contract for sale with the allegations that the defendant had agreed to execute a sale deed in respect of the property in suit in pursuance of the agreement dated 23-6-75 for a consideration of Rs. 25,774/-. A sum of Rs. 6,000/- was paid on the date of the execution of the agreement for sale before the Sub-Registrar and the defendant agreed that on payment of the remaining amount of Rs. 19,774/- from the plaintiff at the time of execution of the sale deed, he would execute the sale deed and it was further agreed that the last date for the execution of the registered sale deed will be 15-11-75. The plaintiff further alleged that it was further agreed that in case the defendant failed to execute the registered sale deed in favour of the plaintiff after receiving the remaining consideration of Rs. 19,774/-, it would be open to the plaintiff to get the sale deed executed and registered through the process of Court at the expense of the defendant. On payment of the remaining sale consideration by 15-11-75, in case the plaintiff failed to get the sale deed executed by the said date, the sum of Rs. 6,000/- within (sic) was paid as earnest money to the defendant would be lost. It was further averred in the plaint that in pursuance of the said agreement, the plaintiff was all along ready to pay the remaining sale consideration of Rs. 19,774/- and to get the sale deed executed in his favour but the defendant failed to execute the sale deed in spite of the request and hence the plaintiff sent a registered notice to the defendant to come to the Sub-Registrar's Office at Saharanpur on 15-11-75 to execute a registered sale deed after receiving the remaining sum of Rs. 19,774/- in pursuance of the agreement for sale but in spite of the same the defendant deliberately did not take the notice and got it returned with a wrong endorsement. The plaintiff went to the Sub-Registrar's office on 15-11-85 and remained there throughout the day with the remaining sale consideration and had all along been ready to fulfil his part of the contract as mentioned in the agreement dated 23-6-75 but the defendant evaded to execute the sale deed after receiving the sale consideration and committed the breach and hence the suit for specific performance of contract for sale was filed in the case.

(3.) The defendant Fakira contested the suit inter alia alleging that the plaintiff never asked the defendant orally or in writing to execute the sale deed within the specific time nor any notice was received by the defendant or was ever returned by him as alleged in the plaint; that the plaintiff himself could not make arrangements for the remaining amount of Rs. 19,774/- as per terms of the agreement for sale and hence he himself could not get the sale deed executed and himself breached the terms of the agreement. Since no notice was ever received by the defendant for reaching the Sub-Registrar's Office on 15-11-75 to execute the sale deed after receiving the remaining sale consideration and hence there was no question of the defendant's going to the Sub-Registrar's Office. Thus, it is alleged that the plaintiff himself was defaulter and committed breach of the terms of the agreement for sale dated 23-6-75 and that the present suit was filed with wrong allegations and was liable to be dismissed with costs.