PINKY PRADHAN Vs. PRATAP KISHORE DAS

JUDGEMENT

(1.) The unsuccessful plaintiff in CS No.431 of 2007(1) has filed this appeal assailing the judgment and decree dated 18.02.2010 and 04.03.2010 respectively passed by the learned Civil Judge (Senior Division) 1st Court, Cuttack. The suit was filed for specific performance of contract and for permanent injunction.

(2.) The plaint case in brief reveals that the suit property more fully described in the plaint schedule appertaining to Khata No.326/212, plot No.2/2205 to an extent of Ac.0.04 decimal out of Ac.0.26 decimal situated at Mouza: Bidyadharpur (Cuttack Sadar), now Bidanasi in the district of Cuttack (Lot No.1) and land appertaining to Khata No.474/60, plot No.516/1726 to an extent of Ac.1.00 decimal situated in Mouza: Patia in new capital, Bhubaneswar now Chandrasekharpur in the district of Khurda (Lot No.2). Defendant No.1 was the owner of the suit property. He entered into an agreement with the plaintiff (Ext.3) for sale of the suit land (Lot Nos. 1 and 2) on 02.12.2005 for a consideration of Rs.1,35,00,000/ - out of which the defendant No.1 received an amount of Rs.3,00,000/ - towards part consideration as advance on the date of agreement. It was also agreed between them that the sale deed would be executed upon receipt of the balance consideration. Subsequently, the plaintiff paid further part consideration of Rs.2.50 lakh and defendant No.1 gave an endorsement to that effect acknowledging receipt of the money (Ext.3/a). The plaintiff being ready with rest consideration amount approached the defendant No.1 on 20.06.2006, but the defendant No.1 deferred the matter. After some days, the defendant No.1 expressed that he was ready only to sell the lands situated at Bhubaneswar (Lot No.2) and demanded the entire consideration money for the same. The plaintiff thereafter tried her best to contact the defendant No.1 and convince him for sale of the land at Cuttack and Bhubaneswar but failed. Left with no other option, she issued a lawyer's notice on 22.09.2007 to defendant No.1 (Ext.4) expressing her readiness and willingness to execute the sale deed on payment of the balance consideration amount. A few days after, plaintiff received the reply from defendant No.1 (Ext.6) through his lawyer intimating that he had already executed a nominal sale deed in favour of defendant No.2. The defendant No.1, however, is ready to sell his Bhubaneswar property to the plaintiff on payment of the entire consideration money as agreed upon taking consent of defendant No.2. Since the defendant No.1 committed breach of contract and did not act upon the agreement under Ext.3, the suit was filed for the aforesaid relief.

(3.) Defendant No.1 admitting execution of Ext.3 in his written statement contended that after execution of the agreement for sale, the plaintiff remained silent. She also failed to pay the balance consideration amount within the stipulated period and did not take any step for registration and execution of the sale deed. The defendant No.1 being in requirement and in urgent need of money executed a nominal sale deed in favour of defendant No.2 in respect of the property at Bhubaneswar on receipt of Rs.5.00 lakh towards consideration. He further contended that in reply to the legal notice of the plaintiff, the defendant No.1 had clearly expressed his willingness to execute the sale deed with consent of defendant No.2 on receipt of the balance consideration money in respect of Bhubaneswar property, but the plaintiff didn't show any interest or responded to the same. Thus, he contended that the suit is liable to be dismissed. Defendant No.2 resisted the claim of the plaintiff by filing written statement. He contended that the suit was not maintainable in absence of any of enforceable legal right, lack of jurisdiction of the Court and being barred by limitation. He further contended that Ext.3 is a forged and fabricated document. He is a bona fide purchaser for value of the suit schedule property situated at Bhubaneswar. He had no knowledge or notice about Ext.3 when he purchased the property from defendant No.1 on 16.11.2006 by virtue of a valid registered sale deed. On and from the date of sale, i.e., 16.11.2006, he has been in possession and enjoyment of the suit property. The plaintiff in collusion with the defendant No.1 had manufactured Ext.3 after execution of the sale deed dated 16.11.2006. Thus, he prayed for dismissal of the suit.