PREETAM KAUR Vs. PRAKASH RAMDEO JAISWAL

JUDGEMENT

(1.) The above Appeal has been filed by the Original Defendant, challenging the Judgment and Order dated 21st April 2003 passed in Special Civil Suit No.20 of 2000 by which the Suit filed by the Plaintiff/Respondent for specific performance of contract came to be decreed and the Defendant was directed to execute the sale deed pertaining to the suit property as described in Para 2 of the Plaint in favour of the Plaintiff after receiving balance consideration within three months from the date of the Decree. In default, on the part of the Defendant in executing the said sale deed as per the Decree, the Plaintiff was to be at liberty to get the said sale deed executed through Court but at the costs of the Defendant. The parties would be referred to as per their status in the trial Court.

(2.) The Appellant herein is the original Defendant in the said Special Civil Suit No.20 of 2000 and the Respondent herein is the original Plaintiff . It was the case of the Plaintiff that on 30.7.98 the Defendant had agreed to sell suit land i.e. Property bearing T S K No.30, Thak No.92 situated at Mouza Fulchur Tah and Dist. Gondia to the Plaintiff for the consideration of Rs.7,01,000/- on executing an Agreement for Sale dated 30.7.98 after receiving earnest amount of Rs. 1,01,000/ out of which Rs.50,000/- was paid by cheque and Rs.51,000/- was paid in cash. It was the case of the Plaintiff that he had also got cleared the challan for purchasing the nonjudicial stamp papers worth Rs.60,510/- on 28/4/99. The sale deed was to be executed on 30.4.99. It was the case of the Plaintiff that as the defendant was avoiding to execute the sale deed, the Plaintiff had issued a telegraphic notice on 29/ 4/99 and had called upon the Defendant to remain present in SubRegistrar's Office on 3.5.99 because the preceding dates 30/4/99,1/ 5/99 and 2/5/99 were holidays. As the Defendant did not turn up on 3.5.99 at the SubRegistrar's Office, the Plaintiff served the Defendant notice dated 20.5.99 for executing sale deed upon receiving the balance consideration of Rs.6,00,000/-. It was the case of the Plaintiff that the Defendant received notice on 22/5/99 and thereafter the husband of Defendant requested for six months extension of time to execute the sale deed on some personal ground. It was the case of the Plaintiff that to avoid strained relations, the Plaintiff agreed to wait for six months. However, even at the end of six months, when the steps were not taken by the Defendant for execution of sale deed, the Plaintiff sent another notice on 18.1.2000 calling upon the Defendant to execute the sale deed. As the Defendant did not pay any heed to the said notice and, since the Plaintiff was always ready and willing to perform his part of the contract, as the consideration was more than Rs.5,00,000/- and the Defendant as a vendor was under the obligation to obtain Income Tax clearance certificate before execution of the registered sale deed, and since in the inquiry made by the Plaintiff, it was revealed that the Defendant had not even obtained I.T. Clearance certificate, the Plaintiff was constrained to file the Special Civil Suit No.20/2000 for specific performance ofthe Agreement for Sale dated 30/7/98. Alternatively, the Plaintiff had also prayed for refund of earnest amount of Rs. 1,01,000/-along with damages by way of interest @ 36% per annum from the date of agreement.

(3.) The Defendant appeared before the Court in the above Suit and filed her written statement. The Defendant accepted the execution of Agreement of Sale, the total consideration fixed and the receipt of the earnest amount by her. The agreed date for execution of the sale deed was also not disputed by the Defendant. The Defendant however, denied that the Plaintiff had approached her prior to 30/4/ 99 for accepting the balance consideration amount and for execution of sale deed. In fact, it was the case of the Defendant that she had approached the Plaintiff on many occasions prior to 30/4/99 for getting the sale deed executed. In so far as challan dated 28/4/99 for purchase of stamp papers is concerned, it was the case of the Defendant that it was a manipulated document. The Defendant accepted the receipt of telegraphic notice dated 29.4.99. However, it was the case of the Defendant that the Plaintiff did not choose to get the sale deed executed on 29.4.99 and therefore issued a telegraphic notice to take advantage of holidays falling thereafter and called upon the Defendant to remain present on 3.5.99. It was the case of the Defendant that it was the Plaintiff, who had not come to the SubRegistrar's Office on 3.5.99, and it was further the case of the Defendant that her son was present in the SubRegistrar's Office through out the day and as the Plaintiff did not turn up, the Defendant issued a telegraphic notice cancelling the agreement and forfeiting the earnest amount. It was the case of the Defendant that even after receiving telegraphic notice dated 3.5.99, the Plaintiff did not respond and only after a period of 17 days i.e. on 20.5.99 had issued a notice to the Defendant wherein there was no reference to the telegraphic notice issued by the Defendant. The Defendant has specifically denied that her husband had sought six months time for execution of sale deed. In so far as the Income Tax clearance certificate is concerned, it was the case of the Defendant that the Plaintiff had agreed that he would get the sale deed executed in two parts in two different names with a view to obviate the requirement of IT clearance certificate. It was further the case of the Defendant that the Plaintiff had agreed that if there was to be only one sale deed, he would himself arrange for the said I.T Clearance certificate by obtaining signature of Defendant on necessary forms. It was the case of the Defendant that her husband had reminded the Plaintiff on various occasions prior to 30/4/99 for obtaining the I.T. clearance certificate. However, the Plaintiff avoided to take steps for obtaining the said I.T. clearance certificate. It was the case of the Defendant that the time was the essence of contract and since the Plaintiff failed to get the sale deed executed before the stipulated date, the Defendant has cancelled the agreement and forfeited the earnest amount, the Plaintiff was not entitled to the specific performance of the contract. In view of the amendment to the Plaint carried out by the Plaintiff wherein the facts that District Gondia was declared as District on 1.9.99 and the location of Collectors Office, the price of land in that area had sky rocketed, was incorporated the Defendant had averred in the written statement that since the Plaintiff had earlier realized that he had agreed to purchase the suit land at much higher cost and therefore he avoided the performance of contract. The Defendant lastly averred that the grant of specific performance of contract to the Plaintiff would be unjust and improper in view of the changed circumstances as the Defendant would be subjected to an unfair loss.