DOSHMANI Vs. AYODA INOK ANJORE

JUDGEMENT

(1.) Heard Mr.A.S.Ganu, learned Counsel for the Appellant, Mr.M.B.Naidu, learned Counsel for Respondent no.5 and Mr.P.P.Kothari, learned Counsel for Respondent no.6.

(2.) This Second Appeal is preferred against the judgment and order dt.26.4.2007 passed by Adhoc District Judge9, Nagpur in Regular Civil Appeal No.401 of 2004. The appeal was dismissed. The said appeal arose from the judgment and order dt.29.6.2004 passed in Special Civil Suit No.795 of 1998 by Joint Civil Judge (Sr.Dn.), Nagpur. It was a suit for specific performance of agreement to sell executed on 9.12.1994 by one of the defendants namely Smt. Ayoda Inok Anjore. The agreement to sell was exhibited as Exh. Nos.62 & 63. The original agreement to sell was dt.9.12.1997. It is the case of the plaintiff/appellant that earnest money was paid in the sum of Rs.20,500/ and later the sum of Rs.51,000/ was also paid towards the consideration for the agreement. Thus, total payment of Rs.71,500/ was made towards agreed consideration of sum of Rs.1,10,000/. The learned Counsel for the appellant has contended that since one of the defendants had executed agreement to sell the suit tenement no.132 admeasuring area of about 605 sq.ft. situated at Chandan Nagpur, Nagpur, the defendants were liable to execute the sale deed pursuant to the said agreement and therefore, the Courts below erred to refuse specific performance of the agreement to sell and erred in refunding the amount paid towards consideration with nominal interest of 6 % p.a.

(3.) As against this, the submission of the learned Counsel for the respondent (original defendant) is that signature of defendant no.1 only was taken by the present appellant/plaintiff and rest of defendant nos. 2 to 5 did not sign the suit agreement to sell that tenement. It is, therefore, contended that since agreement to sell was not signed by all the legal heirs of original allottee Ayoda inok Anjare in respect of tenement allotted to him by Nagpur Housing and Area Development Authority (In short "NHADA"), the agreement which was without signature of all the legal heirs of Ayoda was not specifically enforceable.