SURENDRA Vs. KOMALCHAND

JUDGEMENT

(1.) This Second Appeal under Sec. 100 of C.P.C. has been filed against the judgment and decree dtd. 30/11/2022 passed by District Judge, Devari, District Sagar in R.C.A No.25 of 2019 arising out of judgment and decree dtd. 24/10/2019 passed by Civil Judge Class-I, Devari, District Sagar in Civil Suit No. 55A/2012, by which the suit filed for specific performance has been dismissed.

(2.) The fact necessary for disposal of the present appeal in short are that the plaintiff/appellant filed a suit for specific performance of contract, thereby pleading interalia that on 24/5/2002 an agreement was executed to sell the disputed property i.e Khasra No.63/1, Khasra No.67/2, Khasra No.63/2, Khasra No. 63/3 and Khasra No. 63/4 recorded in the name of defendants. All the lands were agreed to be sold to the plaintiff @ Rs.25,000.00 per acre and accordingly an agreement dtd. 24/5/2002 was executed and the total consideration amount was settled as Rs.4,60,500.00. On 24/5/2002 itself the plaintiff paid Rs.2,00,000.00 to the defendant no.1 Komal Chand by way of advance and written agreement was executed. Thereafter on 17/6/2002 an amount of Rs.50,000.00 was received by the defendants. The sale deed was to be executed by 20/5/2003 with clear stipulation that after the registration of the sale deed, the defendants would hand over the possession of the property in dispute to the plaintiff. On 17/6/2002, the defendant no.1 Komal Chand received Rs.50,000.00. On 15/3/2003 an amount of Rs.1,00,000.00 was paid to the defendant no.1 and on 10/6/2003 an amount of Rs.1,10,000.00 again was paid to the defendant no.1 and an acknowledgement of receipt of the said amount was given on the reverse side of the agreement. Thus, it was pleaded that defendant no.1 Dr. Komal Chand has received Rs.2,00,000.00 + Rs.50,000.00 + Rs.1,00,000.00 + Rs.1,10,000.00 in all Rs.4,60,000.00 and only Rs.500.00 were to be paid. It was further pleaded that the plaintiff is ready and willing to pay the remaining outstanding amount as well as he was ready and willing to perform his part of contract. Accordingly, plaintiff requested the defendant no.1 and 2 to execute the sale deed on various occasions but the defendants avoided the execution of sale deed on one pretext or other. Since the plaintiff and defendants belong to the same society and were having cordial relationship, therefore, the plaintiff was all the time relying on the excuses made by the defendants. It was further pleaded that in the month of May 2003, the plaintiff had requested the defendant no.1 and 2 to execute the sale deed but since some of the owners were out of station, therefore for the satisfaction of the plaintiff, the defendant no.1 and 2 handed over the vacant possession of the property to the plaintiff. Ultimately, in the month of July, 2012, the plaintiff went to defendant no.1 and requested for execution of sale deed. However, the defendant no.1 insisted that now he would execute the sale deed only in case if an enhanced consideration amount is paid. However the enhanced amount was never informed to the plaintiff. Thereafter plaintiff sent a notice on 10/7/2012 for execution of sale deed, which was duly replied by the defendants by their reply dtd. 7/8/2012 and accordingly, the suit was filed for specific performance of the contract by claiming to be within the period of limitation.

(3.) The defendant no.1 and 2 filed their written statement. The execution of agreement was denied. It was claimed that the agreement is a forged document. It was also claimed that they never agreed to alienate property belonging to Kushagra and Kapil. The plaintiff had obtained signature of the defendant no.1 and 2 on the agreement by misrepresenting that he would pay an amount of Rs.2,00,000.00 at Sahajpur but the said amount was not paid and only Rs.50,000.00 was paid and the acknowledgement of the same was made on the reverse side of the agreement. It was claimed that the plaintiff was not ready and willing to perform his part of contract. The suit has been filed after 10 years and 7 months of the agreement to sale and accordingly it is barred by limitation. The acknowledgement of receipt of Rs.1,00,000.00, Rs.1,10,000.00 respectively on 15/3/2003 and 10/6/2003 was also denied.