DURGA PRASAD AGARWALLA Vs. BINOYENDRANATH BANERJEE

JUDGEMENT

(1.) PLAINTIFFS in T.S.No.103 of 1994 are in appeal against the judgment and decree dated 17.5.1997 by which learned Civil Judge (Senior Division), Baripada, while rejecting plaintiffs' prayer for specific performance of contract of sale Ext.3, decreed the suit in part and directed refund of earnest money of Rs.70,000/ - with pendente lite and future interest @ 6 per cent per annum from defendants 1 to 5.

(2.) T .S.No.103 of 1994 is essentially a suit for specific performance of contract by defendants 1 to 11 on receiving balance consideration amount. In the alternative, a prayer has been made that in case agreement for sale Ext.3 is found valid to the extent of share of defendant nos. 1 to 5 only, decree for specific performance of contract be passed to that extent in respect of 2/5th of the suit land on receipt of proportionate balance consideration amount.

(3.) IT is also not disputed that defendant nos.6 to 8 executed unregistered power of attorney Ext.1 dated 30.12.1982 in respect of immovable properties in favour of defendant no.1. Power of attorney Ext.1 has been admitted into evidence and marked Ext.E also on behalf of the defendants. There was partition among the legal heirs of late Surendranath Banerjee in terms of registered partition deed Ext.6/a dated 17.2.1988. Thereafter defendant no.1 and late Soumendra entered into agreement for sale dated 6.6.1993 Ext.3 with the plaintiffs in respect of the suit land for total consideration of Rs.5,70,000/ - and accepted Rs.70,000/ - towards earnest money or advance consideration. Also admittedly, late Soumendra along with defendant nos.1, 6, 7 and 8 executed registered sale deed Ext.C dated 27.9.1993 in respect of the suit land for purported consideration amount of Rs.4,20,000/ -in favour of defendant nos.9 to 11.