LALLARAM GUPTA Vs. SARDAR HARBANS SINGH

JUDGEMENT

(1.) THIS appeal is directed by the appellant/defendant under Section 96 of the cpc being aggrieved by the judgment and decree dated 22. 7. 2000 passed by the iind Addl. District Judge, Shahdol in Civil Suit No. 7-A/2000 whereby the suit filed by the respondent for specific performance and, in alternate, for returning the sum of Rs. 1,46,200/-has been decreed against him for the sum of Rs. 1,07,500 with interest @ 6% P. A from the date of filing the suit by refusing the prayer of specific performance of contract.

(2.) THE facts giving rise to this appeal in short are that respondent filed the aforesaid suit against the appellant contending that the appellant entered in agreement to sale dated 12. 11. 96 with him in respect of the house and its adjoining open land described in the map annexed with the plaint situated in front of Nehru degree College, Budhar in consideration of Rs. 1,20,000/-, out of which rs. 1,07,500/-was taken by the appellant as earnest money on execution of the agreement to sale. It is further pleaded that appellant was in genuine need of the sum for his family that is why he contracted to sale his house by the aforesaid agreement. As per terms of the contract, after receiving the remaining consideration, the registered sale-deed was to be executed by the appellant in favour of the respondent. The respondent was remain ready and willing to perform his part of the contract for which he asked the appellant on various occasions to perform his part of the contract but appellant failed to perform his part in this regard. Subsequent to the agreement, the respondent discovered the fact that the aforesaid property was not the exclusive property of the appellant but it is the joint property with his brother Munnalal. Before filing the suit, the respondent also sent a notice dated 25. 10. 99 to call-upon the appellant for performance of the contract by executing the sale deed after receiving the remaining consideration of Rs. 12500/ -. The same was replied by denying the execution of the aforesaid agreement with false averments. In such premises, the respondent filed the suit for specific performance and, in alternative, for the decree of refunding the aforesaid earnest money of Rs. 1,07,500/-along with interest at the rate of one percent per month. In such premises, including the interest, he filed the aforesaid suit on the valuation of Rs. 1,46,200/ -.

(3.) BY filing the written statement, the averments of the aforesaid plaint are denied by the appellant. It is also pleaded that he did not have any harmonial relationship with the respondent at any point of time. He neither entered in the alleged agreement to sale with the respondent nor received any advance payment or earnest money in that regard. The signature on the alleged agreement dated 12. 11. 96 is also denied stating that the same is false and fabricated document prepared with the connivance of its witnesses. The alleged house is a joint property of the appellant along with his brother. In addition, it is also pleaded that the aforesaid house was having the worth of more than Rs. 3. 50,000/-, so the question for selling it in consideration of Rs. 1,20,000/-did not arise. In the alleged agreement to sale, the total consideration of the property and its place of execution along with the time and period for performance of the contract are also not mentioned. In such premises, the agreement appears to be suspicious and a fabricated document. The appellant being money-lender, is doing such business in regular course. On receiving the notice of the respondent, the same was replied by denying the execution of the aforesaid contract and receiving the earnest money. With these pleadings, the prayer for dismissal of the suit was made.