KANHAIYALAL NANKANI Vs. TRIVENI AWASTHI

JUDGEMENT

(1.) This appeal under Sec. 96 of the Civil Procedure Code has been preferred by the appellant / plaintiff being aggrieved and dissatisfied with the impugned judgment and decree dtd. 29/9/2016 passed by Eleventh District Judge, Jabalpur in Regular Civil Suit No.102-A/2015, whereby though the suit has been decreed but a decree for specific performance of contract has been declined.

(2.) Briefly stated facts of the case as projected in the plaint by the plaintiff are that on 26/7/2007 the appellant and the respondents entered into a sale agreement in writing in respect of House No.369 part of old and part of new House No.341 admeasuring 3848 Sq. ft. and part of old House No. 369 and part of new House No.341/1B and 341/1D admeasuring 4096 Sq. ft., total area being 7944 Sq. ft. @ Rs.2175.00 per sq. ft. and on the same date, Rs.16.00 Lac was paid to the respondents in cash; Rs.2.00 Lac through account payee cheque No.2149 and Rs.2.00 Lac through Account Payee Cheque No.213807, thus Rs.20.00 Lac was paid to the respondents on the date of agreement and further on 31/8/2007, 4/10/2007 and 26/10/2007 Rs.10.00 Lac, Rs.5.00 Lac and Rs.5.00 Lac respectively were paid and further between October 2007 to 2008 Rs.2.00 Lac was paid in parts to the respondents, thus Rs.42.00 Lac have been paid to the respondents in lieu of the agreement. It was agreed between the parties that as an area of 4000 sq. ft. of the land to be sold was under an encroachment and as per the clause 2 of the said agreement the respondents were duly bound to remove the entire encroachment within 6 months, but the respondents failed to do the same and on 15/1/2008 the respondents in writing acknowledged the continuation of the said agreement, despite they failing to encroachment and further agreed to get the encroachment removed from the suit land.

(3.) There were continuous communication between the parties in respect of the execution of the sale deed and removal of the encroachment, but suddenly on 10/7/2008 respondents No.1 and 2 sent a legal notice to the appellant on the false pretext that the term of the agreement has expired in January 2008 and terminated the agreement calling upon the appellant to take back the 50% of the earnest money Rs.40.00 Lac which they acknowledged as received. They also threatened that now they are free to sale the suit property as per their wishes. In response to the said notice the appellant replied to them bringing about the true facts of the respondents not abiding the terms of the agreement and their written acknowledgment dtd. 15/1/2008 of the continuation of the agreement. In counter to the said reply the respondents sent a counter reply that as they are not able to abide to the term of removing the encroachment, hence the appellant be ready to purchase the suit land on "as is where is" basis within 7 days of the receipt of the reply. The appellant therefore, intimated the respondents through the reply, that it is not the agreed terms between the parties to sale the property with the encroachment, but submitted that as that time due to rainy season it was not possible to commence the removal of encroachment but the appellant is ready to get the encroachment remove within the period of 3 months and whatever expenses would be incurred towards the removal of the encroachment would be jointly borne/remitted by the balance amount of the sale deed.