SHIVAM GUPTA Vs. KAMTA PRASAD

JUDGEMENT

(1.) This is an appeal by the plaintiff against the dismissal of his suit for specific performance of contract against the defendants.

(2.) The appellant herein as plaintiff, instituted a civil suit alleging that defendant No. 1 negotiated for sale of land with him. Consequently, on 3-7-1992 an agreement for sale Ex. P. 1 was entered into between them and it was agreed that the consideration of the suit land would be Rs. 2,75,000.00 out of which Rs. 10,000.00 would be paid as earnest money and the balance would be made good at the time of execution of the sale deed. It was also stipulated in the agreement that the damarcation of the suit land would be done and thereafter on the information of the same given by the defendant No. 1 in writing to the plaintiff, the plaintiff would get the sale deed executed within 104 days from the date of the receipt of such information. It was further agreed that agreement would not be cancelled but if on demarcation, the area of the suit land was found to be less than 546 sq.ft, then the plaintiff would not purchase the same. Plaintiff also asserted that since the house of defendant No. 1 stood on the suit ,land, it was agreed that defendant No.1 would demolish the same and remove the material therefrom before the execution of the sale deed. According to the plaintiff in pursuance of the agreement Ex. P. 1 he paid Rs. 10,000.00 to the defendant No. 1 but the latter despite of demar- cation of the suit land failed to perform his part of the agreement. On 28-8-1992 the plaintiff sent a notice, Ex. P.2, requiring the defendant No. 1 to execute the sale deed failing which he would be left with no option but to file the suit for specific performance. Defendant No. 1 through his counsel sent a reply, Ex. P.5, to the notice Ex. P. 2 and asserted that as the agreement has been annulled there was no question of his executing the sale deed. The plaintiff sent another notice and expressed that he had always been ready and willing to perform his part of the agreement but the defendant No. 1 sold the suit land in favour of defendants No. 2 and 3 by a registered sale deed dated 26.2-1993. According to the plaintiff, he had duly informed the defendants No. 2 and 3 about the agreement dated 3-7-1992 but to no avail. Hence, based upon the agreement he filed the suit on 6-4- 1993 alleging that he had always been willing and ready to perform his part of the agreement but there had been no response on the part of defendant No. 1 and, therefor, he was entitled to a decree directing the defendant No. 1 to execute the sale deed and get the same registered on payment of the balance amount through Court. He also prayed that the registered sale deed dated 26r2-.l 993, Ex. P. 20, executed by defendant No. 1 in favour of defendants No. 2 and 3 be declared void and inoperative.

(3.) The claim of the plaintiff was resisted by the defendants by filing a joint written statement wherein an agreement of sale dated 3-7- 1992, Ex. P. 1 was admitted. It was also admitted, that the sale deed was to be executed immediately after the demarcation of the suit land but the execution of sale deed within 104 days from the date of information of demarcation was specifically denied. According to the defendant, demarcation of the suit land was done on 17-7-1992 in the presence of plaintiff's father Mathura Prasad (P.W. 1) and the written information of the same was also given to him by registered notice dated 24-7-1992, Ex. D. 1, which he refused to accept. Conse- quently notice was published in the newspaper vide Ex. D. 2 calling upon the plaintiff for payment of the balance amount and for the execution of the registered sale deed but he resiled. According to the defendants, since the plaintiff failed to perform his part of 'the contract as per the terms and conditions of the agreement, the same stood annulled and as such sale deed dated 26-2-1993, Ex. P. 20, was legal and proper. The defendants further asserted that the demand of the plaintiff for the demolition of house and removal of materials from the suit land prior to the execution of the sale deed was contrary to the terms of agreement and such an insistence could only be regarded as trying to vary the terms of the agreement meaning thereby that he was neither ready nor willing to perform his part of the agreement.