UDAI KANTE Vs. RAMBHAROSILAL AGRAWAL (DEAD)

JUDGEMENT

(1.) Appellant has filed this first appeal under Section 96 of Code of Civil Procedure, 1908 against the judgment and decree dated 06-03-1999 passed in Civil Suit No.32-A/1991 by learned Third Additional District Judge, Gwalior.

(2.) The brief facts in narrow compass are that the respondent/plaintiff -Rambharosilal Agrawal (late) has filed a suit on the basis of agreement dated 25-04-1988 alleging that the appellant/defendant has agreed to sell the suit house to him for a consideration of Rs.17 lakh and he has received Rs.2 lakh as earnest money. It is further alleged that the suit house is jointly owned by the appellant and his two younger brothers namely, Surendra Kante and Narendra Kante but they did not reside at Gwalior and the defendant assured that both the brothers have consented to the sale of the suit house and executed the alleged agreement for himself and on behalf of his two brothers. According to terms of the alleged agreement (Ex-P/1), the sale deed was to be executed within a period of 7 months. It has further been alleged that the defendant/appellant will obtain the necessary permission from Urban Land Department, income tax office as well as power of attorney from his two brothers but defendant did nothing and even did not come to Gwalior and gave no response to the letters written by the plaintiff to him. Thereafter, the plaintiff requested Kailashchandra Agrawal who was known to the plaintiff and was mediator in the transaction that he call the defendant to execute the sale deed. On plaintiff's request, Kailashchandra Agrawal entered into correspondence with the defendant but the defendant evaded to come ultimately Kailashchandra Agrawal went to meet the defendant at Bombay in the year 1990 and asked him to execute the sale deed. Defendant had promised to come at Gwalior in July, 1990 for executing the sale deed but the defendant did not turn up.

(3.) Plaintiff wrote a letter to the younger brothers of defendant to execute the sale deed of disputed house, on which Surendra Kante has sent the reply of letter of plaintiff through his Advocate on 20-03-1991 whereby he has made it clear that he has not given consent to sell the disputed house and defendant has only 1/6th share in the suit house and also wrote that the defendant has given false information to the plaintiff. When all the efforts for getting the sale deed executed have turned futile, plaintiff has filed the suit for execution of sale deed of 1/6th share of defendant on obtaining the proportioned sale price i.e. 2,83,334/- after adjusting the earnest money of Rs.2 lakh and if it is not possible then the refund the earnest money of Rs.2 lakh along with damages @ 2% per month from 25-04-1988 to the date of suit.