ALFARUK EDUCATIONAL SOCIETY, KHAJRANA Vs. SHIVPRASAD AND ANOTHER

JUDGEMENT

(1.) This is plaintiff's first appeal under section 96 of the Code of Civil Procedure against the judgment and decree dated 11.04.2008, passed by 13 th Additional District Judge, Indore in Civil Suit No.3-A of 2007, whereby it has dismissed his suit for specific performance of contract.

(2.) Briefly stated, the appellant filed a suit for specific performance of contract in respect of three different pieces of agricultural land, as described in the plaint. According to the appellant / plaintiff, the respondents/defendants had agreed to sale the said three pieces of land at the rate of Rs.5.75 lac per acre and in that regard an agreement of sale was executed between them on 19/12/2003. As per the said agreement, it was agreed between the parties that the plaintiff shall pay Rs.7 lac to the defendants on or before 30/7/2004 and the balance amount of Rs.3.75 lac shall be paid till 30/12/2004. It was also agreed that in case, the defendants fail to perform their part of the contract about execution of the sale deed, the plaintiff shall be free to seek decree for specific performance of contract by filing a civil suit. The plaintiff also averred that out of the three different pieces of land, two pieces of land bearing survey no.43/2/1 and 44/1 have been sold by the defendants by executing a sale deed. However, the third land bearing survey no.48/2/1/1 was not sold inspite of the fact that apart from the advance money which was paid by the plaintiff to the defendants on the date of execution of the sale deed further amount of Rs.3.50 lacs was also paid by the appellant/ plaintiff to the respondents/defendants, but the defendants did not execute the sale deed for the aforesaid survey no.48/2/1/1 (herein after described as suit land). In the circumstances, the appellant had to file the suit for specific performance of the contract. It has also been averred in the plaint by the appellant that he is ready and willing to perform his part of contract and for that he is having necessary funds with him to purchase the suit land.

(3.) In the written statement filed by the respondents / defendants, respondents pleaded that on 19.12.2003 an agreement to sale the aforesaid three survey numbers' land for a consideration of Rs.20,98,175/- was entered into between them, but the appellant was not having sufficient funds with him and as such, he declined to purchase the suit land and bought lands of only two survey numbers, as aforesaid. It is also the stand of the respondents/defendants that the appellant/plaintiff got the sale deed of the two pieces of land executed and he declined to purchase the suit land. According to defendants, since the price of the land was increased to a great extent and as such the appellant/plaintiff with dishonest intention filed the suit for specific performance of contract with a malafide object to purchase the suit land at a meagre price. It was further stated by the respondents/defendants that the appellant/plaintiff had not paid Rs.3.75 lac but, paid only 3.21 lac, which defendants agreed to repay to the plaintiff because the sale deed of the suit land has not been executed. The respondents/defendants further pleaded in paragraph 8 of the written statement that the agreement of sale was already rescinded in view of the fact that the plaintiff was not willing to purchase the suit land. Had the agreement of sale being in existence, the plaintiff would have paid the balance amount of consideration and would have got the sale deed executed but it was not executed by him. According to the defendants, the plaintiff's suit which is based upon the alleged cause of action dated 19/12/2003, is barred by limitation. The notice dated 22.12.2006 sent by the plaintiff was denied stating therein that no agreement of sale was executed between the parties on 17.11.2003. It was also stated that in case the plaintiff is basing his claim on the alleged agreement of sale dated 17.11.2003, a copy of it be sent to them so that reply in detail may be sent. But the plaintiff did not send the copy of the alleged agreement of sale dated 17.11.2003, nor he disclosed that what were the conditions in the said agreement. The defendants further pleaded by way of special pleadings that the suit filed by the plaintiff is barred under article 54 of the Limitation Act. It was also stated that the suit filed by the plaintiff on the basis of an agreement dated 19.12.2003 bearing the stamp of Rs.100/- only, which is inadmissible in evidence and therefore, the suit deserves to be dismissed.