DEOCHAND BHURA Vs. PURUSHOTTAM DAS TANDON

JUDGEMENT

(1.) THIS is plaintiff's appeal under Section 96, CPC against the judgment and decree by which his suit for specific performance of contract has been dismissed.

(2.) IT is not in dispute that defendant No. 1 Purushottam Das Tandon was owner of plot No. 134, Manmohannagar, Cherital Ward, Jabalpur. He agreed to sell this plot to the plaintiff by Ikrarnama dated 26-10-1983 executed by deceased defendant No. 6 Radhika Prasad Verma as his agent. An amount of Rs. 10,000/- was paid by the plaintiff to the vendor on the date of execution of the agreement as advance. The sale-deed was to be executed by the vendor on receipt of the remaining amount of consideration within three months. Hubbilal was in actual possession of this plot. He filed Civil Suit No. 374-A of 1983 against the plaintiff and Radhika Prasad Verma. On 2-12-1983 it was recorded in the order- sheet of that civil suit that the plot would not be sold to the plaintiff till the time of filing the written statement. Again on 20-12-1983 it has been recorded that the plaintiff would not dispossess Hubbilal until the written statement is filed. Radhika Prasad Verma filed the written statement on 9-2-1984. A certified copy of the same is Ex. P-16. Therefore, there was now no restraint order against him from selling the plot. Hubbilal Withdrew his civil suit on 24-4-1984 as per order-sheet (Ex. P-14 ). On the same date the vendor and Hubbilal executed two registered documents in favour of defendant Nos. 4 and 5 -- Mohanlal Tiwari and Ghanshyam Patel. These documents have been described as "dastbardari". These have been executed by defendant No. 2 Shanker Upadhyaya on behalf of the defendant No. 1 and also by Hubbilal. The plot has been sold in two portions to these two persons on payment of Rs. 24,000/- as consideration by each of them. Thus, the defendant Nos. 4 and 5 acquired legal title to the plot.

(3.) DURING the pendency of civil suit filed by Hubbilal the defendant No. 1 sent a notice through his lawyer Shri Govind Upadhyaya, Advocate on 6-1-1984 to the plaintiff asking him to pay the remaining amount of consideration of Rs. 47,600/- before 26-1-1984 and get the sale-deed registered failing which the agreement to sell would be treated as cancelled. It was made clear in this notice that time should be treated as "essence of the contract". It was also intimated to the plaintiff through this notice that the defendant No. 1 would be free to sell the plot to other persons. A copy of this notice is Ex. D-11. The plaintiff gave the reply dated 16-1-1984 (Ex. P-11) to the effect that he is prepared for the registration of the plot "if all legal requirements for the purpose on your part are completed". It is not specifically spelt out in this reply what was to be done by the vendor. It is admitted that the remaining amount was not paid by the plaintiff before 26-1-1984 or before 9-2-1984. The plaintiff got a notice published in a newspaper (Ex. P-12) on 10-3-1984 that no one should purchase this plot in view of the agreement of the vendor with the plaintiff. He sent a telegraphic notice on 13-4-1984 (Ex. P-13) to Radhika Prasad Verma and Shri Govind Upadhyaya, Advocate asking them to stop registration in favour of Mohanlal Tiwari or others. But as already stated the documents conveying the plot in two parts to the defendant Nos. 4 and 5 were executed and registered on 24-4-1984.