S. VIJAYARAJAN Vs. PRABHU DAYAL CHOUBEY

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment and/or decree passed by the learned District Judge, A & N Islands, Port Blair on 17th March, 2009 in Other Appeal No.5 of 2003 affirming the judgment and decree dated 28th November, 2003 passed by the learned Civil Judge, Senior Division at Port Blair in O.S. No.31 of 1993. Both the learned Courts below dismissed the appellant 's claim for specific performance of contract on the ground of impossibility of performance of the contract, as one of the joint proposed purchasers did not join the plaintiff/appellant for enforcing the said contract in the said suit for specific performance of the contract and the plaintiff/appellant prayed for enforcement of the said contract in a modified way in deviation of the terms of the contract. While dismissing the plaintiff 's suit for specific performance of contract the learned Trial Judge held that refund of the earnest money to the plaintiff together with the interest thereon would be the appropriate relief in the facts of the instant case and accordingly a decree for refund of the earnest money together with the interest thereon was passed by the learned Trial Judge and the said decree was also affirmed in appeal by the learned First Appellate Court.

(2.) THE instant Second Appeal was admitted for hearing under Order 41 Rule 11 of the Code of Civil Procedure by the Division Bench of this Hon 'ble Court on 7th April, 2009 on the following substantial question of law: -

(3.) THE plaintiff/appellant prayed for enforcement of the contract dated 22nd December, 1990 which was executed by the parties on 23rd December, 1990. Execution of the agreement for sale by the parties is not disputed. Though the agreement shows that both the proposed purchasers jointly agreed to complete the said transaction for purchasing the entire suit property by a composite sale but the plaintiff prayed for a decree against the defendant/respondent no.1 directing him to complete the sale of half portion of the double storied wooden house located towards the shop of Shri R. Damodaran consisting of two rooms on the ground floor and two rooms on the corresponding first floor standing at survey no.58, measuring 2,400 Sq. Ft. situated at Babu Lane, Aberdeen Bazar, Port Blair Tehsil in favour of the plaintiff/appellant by executing a proper sale deed and by getting the sale deed registered for perfecting the title of the plaintiff/appellant in the suit property. The plaintiff also prayed for a decree for issuance of direction upon the defendant/respondent no.1 to hand over vacant and peaceful possession of two rooms, one on the ground floor and another on the corresponding first floor previously occupied by R. Raju, tenant and other two rooms occupied by the washman to the plaintiff. The plaintiff also made an alternative prayer for recovery of the earnest money together with 12% interest thereon, in case the decree for specific performance of contract is not passed.