SAGARMAL Vs. GUJARATI BEEDI COMPANY

JUDGEMENT

(1.) This appeal by the Plaintiff has been preferred against the judgment and decree dated 22.07.2003 passed by the Court of 15th Additional District Judge, Indore in Civil Suit No. 25-A/2002 declining thereby to grant relief of specific performance and instead granting refund of consideration.

(2.) Facts relevant for the purpose of this appeal are that the Plaintiff/Appellant instituted a suit for specific performance with allegations that the suit house bearing No. 1/6 situated at Tilak Path, Indore was owned by Defendant No. 1, which was a partnership firm. Defendants/Respondents No. 2 and 3 were its partners. Defendants No. 2 and 3 entered into an oral agreement of sale in favour of the Plaintiff on 27.02.1989 on behalf of the said partnership firm for a consideration of Rs. 5,01,000/-. Rs. 21,000/-were received as a part of consideration vide Cheque No. 251952 dated 01.03.1989 of Bank of Baroda. Signature in token of receipt of cheque was put on the counterfoil of the cheque. Balance consideration was liable to be paid up to 01.06.1989. A formal agreement was to be executed by them up to 01.03.1989 in favour of the Plaintiff. The Defendants avoided to execute the registered sale-deed in Plaintiff's favour. Therefore, the Plaintiff vide telegraphic notice dated 27.02.1989 asked the Defendants to execute the registered sale-deed within 24 hours. He also expressed readiness and willingness to get the registered sale-deed executed at his expenses, after making payment of the balance consideration. Defendants vide reply dated 03.03.1989 disputed the agreement alleged by the Plaintiff and, instead, informed that an agreement in favour of another person was executed. During the pendency of the suit, Defendants No. 1 to 3 executed registered sale-deed dated 26.09.1995 in respect of the suit property in favour of Narendra Kumar S/o Chauthmal Ravka, who was impleaded in the suit as Defendant No. 4, with an allegation that he is bound by the agreement dated 27.02.1989.

(3.) Defendants No. 1 to 3 submitted joint written statement, refuting thereby the claim of the Plaintiff. They, inter alia, disputed the alleged oral agreement dated 27.02.1989 for a consideration of Rs. 5,01,000/-. It has been stated that Defendants No. 2 and 3 were authorized vide general meeting dated 06.01.1989 merely to negotiate with the prospective purchasers for the purpose of sale. They were required to apprise of the same in the general meeting and that the consent from other partners was to be obtained. In this view of the matter alleged agreement dated 27.02.1989 and the receipt of Rs. 21,000/-as advance money were denied, being not binding. Defendants No. 2 and 3 were, thus, not authorized to enter into agreement of sale in favour of the Plaintiff, since consent from other partners was not obtained. It was denied that the cheque was submitted by Defendant No. 2 for an amount of Rs. 21,000/-. It has been expressly and specifically mentioned in the written statement that an agreement to sell the suit property in favour of Defendant No. 4 was entered into on 27.02.1989 for a consideration of Rs. 5,15,000/-in the meeting of Defendant No. 1. Proposal of the Plaintiff was for a lesser sum and was, therefore, not accepted. On 28.02.1989, it was reduced into writing and a sum of Rs. 51,000/-was received as advance consideration. A supplementary agreement was also executed on 05.04.1989 between Defendants No. 1 to 3, on one hand, and Defendant No. 4, on another hand, and receipt of possession was also executed by Defendant No. 4, after receiving the possession of the suit property. A sum, in all, Rs. 3,51,000/-was received by Defendants No. 1 to 3 from Defendant No. 4 up to 05.04.1989 and pursuant thereto possession of the suit property was delivered to Defendant No. 4, in part performance of the agreement. Date for execution of the registered sale-deed was extended on 28.04.1989 up to 30.06.1989 with a condition that Defendant No. 4 would pay interest at the rate of Rs. 1.50% PM on the balance consideration of Rs. 1,64,000/-for the intervening period. This was so mentioned in the supplementary sale agreement. Thereafter, the Plaintiff instituted a suit for injunction against the Defendants, which prevented Defendants No. 1 to 3 from receiving Rs. 1,64,000/-. Instead, Defendant No. 4 became liable to pay interest with effect from 30.06.1989. It has been denied that the Plaintiff has been ready and FA No. 479/2003 willing to get the registered sale-deed executed, after payment of balance consideration. It has been further stated that the Plaintiff himself deposited a sum of Rs. 21,000/-in the bank account of Defendant No. 1, which he may withdraw from the bank. Defendants offered their cooperation for such withdrawal. Pursuant to the agreement in favour of Defendant No. 4, registered sale-deed in respect of the suit property was executed in his favour on 26.09.1995.