MAHESH CHANDRA GUPTA Vs. A.K. MISHRA

JUDGEMENT

(1.) THIS appeal under clause 10 of the Letters Patent, has been filed against the Judgment and decree passed by the learned Single Judge in First Appeal No.3 of 1990, by which the decree of specific performance of contract of sale passed by the learned Second Additional Judge to the Court of District Judge, Bilaspur, in Civil Suit No. 13 -A of 1982, has been affirmed.

(2.) A suit for specific performance of contract of sale of the land measuring 65,000 Sq.ft. of Kh. Nos. 449/1 and 449/3 in village Ameri (now within the limits of Municipal Corporation, Nilaspur) was filed by the respondent (plaintiff) on the basis of an agreement dated 1.9.1980 against the appellant No. 1 as the vendor and against the respondent No.2 as subsequent transferee of the land. It is not disputed that the appellant No. 1, an advocate and a notary, is engaged in real estate business and deals in sale and purchase of properties. It is also not disputed that the appellant No. 1 had entered into an agreement dated 1.9.1980 for sale of land measuring 65,000 Sq. ft. out of the land comprised in Kh. No. 449/1 and 449/3 at the rate of Re. 1.10 per Sq. ft. and had received a sum of Rs. 6,000/ - towards earnest money and agreed to execute sale -deed by 30.9.1980 on receipt of the balance consideration after measurement of the land.

(3.) THE appellants resisted the suit and pleaded that there was failure on the part of the plaintiff to perform his part of the obligation till the date the vendor rescinded the contract by notice. According to the defendant (vendor), the land was got measured through Patwari (D.W. 2) twice, on 24.8.1980 and 9.9.1980, well before the agreed date for execution of the sale -deed, but despite that, the plaintiff took no steps to make payment of the balance amount and to get the sale -deed executed in his favour. The plaintiff remained unwilling even after notice Annexure -P/3 was issued by the defendant vendor, as he did not have the funds with him to meet this liability.