BAHUBAL Vs. SHAFI MOHAMMAD

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 22nd March 1996 passed by First Additional District Judge, Ratlamin Civil Suit No.11-A/ 96, whereby the suit filed by respondent was decreed and it was directed that appellant will execute the sale deed in favour of respondent after receipt of payment of Rs.l8,000/-as balance consideration within a period of two months and shall handover the possession of the suit property and the counter claim filed by the appellant was dismissed, the present appeal has been filed.

(2.) Short facts of the case are that the respondent Shafi Mohammad filed a suit for specific performance and for award of compensation on 16.01.1988 alleging that appellant is owner of the suit property, which is a house bearing house No.40 situated at Chandra Shekhar Azad Marg, Village Taal Tehsil Alot Distt. Ratlam. It was alleged that vide agreement dated 04.02.1987 appellant agreed to sale the suit property for a consideration of Rs.45,000/- and took a sum of Rs.20,000/- as earnest money. It was alleged that it was agreed that the balance amount shall be paid to the appellant at the time of execution of sale deed. It was alleged that at the time of execution of agreement possession of second and third floor of suit house was given to the respondent. Further case of the respondent was that on 18.03.1987 appellant took a sum of Rs.7,000/- towards sale consideration of which the endorsement was made on the sale agreement dated 04.02.1987. It was alleged that the total amount of Rs.27,000/- was received by the appellant towards the sale consideration. Further case of the respondent was that after the agreement, respondent got issued a public notice in the news paper Swadesh, whereby the objections were invited. It was alleged that respondent was always ready and willing to perform his part of the agreement, but since the appellant was not prepared, therefore, respondent asked the appellant telegraphically on 29.04.1987 to execute the sale deed. It was alleged that in spite of that appellant did not turn up to the office of Sub-Registrar for execution of sale deed. It was alleged that appellant failed to execute the sale deed as per terms of agreement as agreed between the parties. It was prayed that appellant be directed to execute the sale deed, after accepting the balance amount and handover the possession of part of the suit property which was not delivered to the appellant. In alternative it was prayed that appellant be directed to pay double of the amount of Rs.27,000/- which was paid by the appellant as earnest money.

(3.) Appellant filed the written statement wherein it was not disputed that appellant entered into an agreement to sell the suit property to the respondent. Contention of the appellant was that as per the agreement sale deed was to be executed on or before 30.04.87. 30th of April 1987 was, a holiday because of Parshuram Jayanti. It was alleged that appellant was ready to execute the sale deed on 01.05.87. Appellant remained present in the office of the sub-registrar for executing the sale deed, but the respondent did not appear. On the contrary a telegram was sent by the respondent on 29.04.87 and also a registered letter to create evidence against the appellant. It was alleged that since the respondent did not get the sale deed executed by making the payment of balance amount, therefore, the suit filed by the respondent deserves to be dismissed. So far as, earnest money is concerned, it was alleged that the same stands forfeited. It was alleged that respondent is not entitled for double of the amount of earnest money. It was prayed that suit filed by the appellant be dismissed. In counter claim it was prayed that a decree be passed against the respondent for handing over the possession of suit property.