VIJAY Vs. JAIRAM

JUDGEMENT

(1.) This First Appeal has been filed by the defendant being aggrieved by judgment and decree dated 11.10.2002 passed by Court of Third Additional Judge to the Court of District Judge, Morena, in Civil Suit No.17-A/2001.

(2.) It is defendant/appellant's case that a suit was filed by the plaintiff seeking a relief for specific performance of the agreement and that suit has been decreed in favour of the plaintiff without adverting to the fact that the agreement in case was not in fact an agreement to sale but was an agreement to mortgage. Further, in view of this fact suit for specific performance was not tenable and since the contract is contingent, therefore, it was not enforceable. It is submitted that as per provisions contained in Section 23 of the Contract Act, the agreement was void as there was a stipulation to the effect that when loan of Rs.40,000/-, which was extended in favour of the present appellant along with interest @ Rs.2/- per 100/- per month, will be doubled to Rs.80,000/- then before such event either the defendant can repay the loan or will have to execute the sale deed in regard to half of the plot measuring 36ft. X 50ft. contained in survey No.911 and 912 situated at village Jaurakhurd, Morena. According to the appellant, this condition was arbitrary rather the agreement is void. It is also mentioned that since which portion of the land will be given to the plaintiff was not mentioned in the agreement, therefore, suit was barred by provisions contained in Section 12 of the Specific Relief Act. It is also submitted that provisions of Section 29 and 30 of the Contract Act will also be attracted in the matter and the suit was not maintainable. Reliance has been placed on the judgments of Supreme Court in the case of ( Singh Ram (D) Thr. L.Rs. V. Sheo Ram, 2014 AIR(SC) 3447), (K. Vilasini & Ors V. Edwin Periera & Ors, 2009 AIR(SC) 1041) and so also ( Kaniram V. Vishwanath,1983 MPWN 139).

(3.) Placing reliance on the case of Singh Ram learned counsel submits that as per provisions contained in Article 61 and 63 of the Limitation Act mortgage could have been redeemed within a period of 30 years and, therefore, before expiry of 30 years no suit to seek specific performance was maintainable.