SHYAMABAI Vs. RAMKISAN

JUDGEMENT

(1.) This First Appeal by original Defendant is challenging the judgment and decree dated 5th May 1992 delivered by 6th Joint Civil Judge, Senior Division Court, Nagpur by which it decreed the Special Civil Suit No. 660 of 1989 filed by present Respondent for specific performance. Deceased Appellant No. 1 was original Defendant No 1 in said Suit and present Appellant Nos. 2 and 3 are subsequent purchasers from her impleaded therein later on by the Respondent. During pendency of this Appeal, Appellant No. 1 expired and remaining Appellants contended that she expired without leaving any legal heir and they are prosecuting present Appeal as subsequent purchasers in possession.

(2.) The case of Respondent Plaintiff is that on 5/10/1986 an agreement was reached with present Appellant Defendant by which she agreed to sell a house property at Nagpur for total consideration of Rs. 3,01,000/- only (i.e. Three lakhs One thousand only) and received earnest amount of Rs.5,000/- (Five thousand only). Balance amount of Rs.2,96,000/- (Two lakhs Ninety six thousand only) was to be paid at the time of execution and registration of sale deed which was to be executed within period of three months. Defendant had claimed therein payment of Rs.50,000/- only by 14/10/1986 but that condition was redundant in view of specific understanding about the point of time at which entire balance sell consideration was to be paid. He requested Defendant several times to execute sale deed and he also approached her with amount of Rs.50,000/- on 14/10/86 but she refused to accept because she wanted to back out. He forwarded notice dated 30/12/1986 but Defendant avoided to execute any sale deed and forwarded on 18/6/1987 false telegram that in spite of two registered notices sent by her, Plaintiff failed to pay balance consideration and obtain sale deed. She threatened to sell the house to other purchaser if Plaintiff failed to obtain sale deed within 7 days. He further contended that in this notice Defendant did not claim that agreement stood cancelled for non-payment of amount of Rs.50,000/- on 14/10/86 and thereby she waived said condition. He further stated that on 29/6/1987 he met Defendant-1 and requested her to execute sale deed but she did not and then he received notice dated 19/8/87 from her (Defendant) alleging that he had no sufficient funds to purchase the property and agreement was cancelled. He alleged in his plaint that he was always ready and willing to perform his part of contract. He further alleged that cause of action accrued on 5/1/1987 which was last date for obtaining sale deed. He filed suit on 12/10/1989 and joined original Appellant No. 1 Smt. Shyamabai only as sole Defendant. It appears that during pendency of suit, original Defendant sold the house property to present Appellants Nos. 2 and 3 in July 1991 and hence Plaintiff brought them on record before Trial Court as Defendants Nos. 2 and 3. Details of this event are also required to be considered while appreciating the rival arguments and hence, I, do not find it necessary to mention the same here.

(3.) Defendant landlady filed her written statement denying agreement dated 5/10/86 and contended that it was only acknowledgment for Rs.5,000/-. Formal agreement for sale was agreed to be drawn if Plaintiff paid further amount of Rs.50,000/- between 12 and 14 October 1986 failing which promise to sale was to stand cancelled and amount of earnest was to be forfeited. She further pleaded that sale deed was to be completed by 5/1/1987 and time was essence of contract. She requested Plaintiff to supply her copy of said receipt on several occasions by registered letters and orally but Plaintiff deliberately did not supply it because of forfeiture clause contained therein. She denied that Plaintiff at any time requested her to execute sale deed and contended that on the contrary she forwarded notice and telegram for that purpose. She denied that amount of Rs.50,000/- was offered to her by Plaintiff but she refused it. She denied that Plaintiff met her on 29/6/1987 and clarified that she forwarded reply on that day to Plaintiff's legal notice. She accepted that she issued legal notice on 19/8/87 informing Plaintiff that he had no funds and cancelled the agreement. She denied that Plaintiff was always ready and willing to have sale deed. She denied all claims and requested for dismissal of suit with exemplary costs of Rs.3,000/- under section 35-A of CPC. She, in the alternative, also claimed compensation of Rs.6,000/- per month with effect from 5/1/1987 in case specific performance was granted with interest at 2% per month on balance sale consideration.