SHAILA JAYWANT JADHAV Vs. SULOCHANA VASANT BHAVSAR

JUDGEMENT

(1.) Appellant, the original defendant No. 2 in Special Civil suit No. 115 of 1984 has preferred this second appeal against the judgment and order passed by the Court of Additional District Judge, Nashik in Civil Appeal no. 248 of 1992 whereby decree for specific performance passed in favour of the plaintiff was confirmed and the appeal was dismissed with cost. For the sake of convenience hereafter the parties shall be referred to as the plaintiff and defendants.

(2.) Brief facts giving rise to this appeal are as under : on April 30, 1981 the defendant No. 2, father of defendant No. 1 agreed to sale two suit plots bearing, Nos. 16 and 17 each measuring 3010 sq. ft to the plaintiff at the rate of Rs. 30 per sq. ft and accepted amount of Rs. 6000/ -. The defendant No. 1 accordingly executed the plot booking receipt for and on behalf of defendant No. 2 in favour of plaintiff. By virtue of the said receipt it was agreed that the plaintiff will pay second instalment of Rs. 2000/- within 45 days from the execution of the receipt. As per the said receipt payment of full purchase price was to be made within 30 days from the receipt of N. A. permission and approved layout or within three months from 30-4-1981 and sale deed was to be executed at that time. The plaintiff's husband who happens to be a practising advocate at Nashik offered to pay balance amount of Rs. 2000/- within 45 days from the date of booking of the plots. However, the defendant No. 1 told plaintiffs husband that as the sale deed of the plot No. 28/1 was not executed in favour of defendant No. 2, he would not accept the amount of Rs. 2000/ -. According to plaintiff, thereafter her husband contacted defendant No. 1 for verifying the title deed and other documents regarding the plots. However, he was not shown any document. Ultimately, on 21-4-1983 the plaintiff issued notice to defendants and called upon them to give necessary information regarding the suit plots. In spite of receipt of notice, the defendants did not give any reply. The plaintiff, therefore issued another notice dated 6-4-1984. The defendants gave false reply and refused to execute the sale deed. On the contrary, they informed that as the plaintiff did not pay the balance amount within 45 days as agreed, they have cancelled the agreement. The plaintiff came to know that the (defendant No. 2 purchased the land bearing plot No. 28/1a on 12-3-1982 and in spite of the same she did not execute the sale deed. Hence, the plaintiff filed suit for specific performance of agreement to sale dated 30-4-1981.

(3.) The defendants filed their written statement at Exhibit 21 and opposed the suit claim. They admitted the execution of the plot booking receipt dated 30-4-1981 and other details. They however, contended that the plaintiff or her husband had never offered Rs. 2000/- balance amount to them during the period of 45 days from the execution of the receipt and as such they did not issue any reply to the notice issued by the plaintiff. However, when they received the second notice they replied the same and informed that the agreement has been cancelled by them. Thus, according to defendant the plaintiff failed to perform her part of contract and as such she was not entitled to file the suit for specific performance. The defendants therefore prayed for dismissal of the suit.