OM PARKASH Vs. OM PARKASH

JUDGEMENT

(1.) This is second appeal by defendant No. 1 Om Parkash son of Jiwan who has been unsuccessful in both the courts below.

(2.) Suit was filed by respondent No. 1/plaintiff Om Parkash son of Bhagwan Singh against appellant and impleading proforma respondents No. 2 to 5 as proforma defendants No. 2 to 5. They are brothers of the plaintiff. Plaintiff's case is that defendant No. 1 agreed to sell the suit land measuring 30 kanals 16 marlas to plaintiff and proforma defendants No. 2 to 5 i.e. all the respondents in the instant appeal, for Rs. 3 lacs and received Rs. 75,000/-as earnest money and executed agreement dated 10.6.1993. Sale deed was to be executed upto 30.8.1993. However, on 23.6.1993, defendant No. 1 received further amount of Rs. 50,000/- from the respondents against writing and date for execution of sale deed was extended upto 30.9.1993. Defendant No. 1 had mortgaged the suit land with Punjab National Bank. For redemption thereof, plaintiff paid Rs. 70,000/- to defendant No. 1 on 20.3.1994 against execution of pronote and receipt although amount was paid with reference to the agreement. However, defendant No. 1 did not get the mortgage redeemed. Plaintiff sent notice dated 7.7.1994 to defendant No. 1 who gave reply on 20.7.1994 and accordingly the plaintiff went to the office of Sub Registrar on 1.8.1994 for getting sale deed executed as per agreement, but defendant No. 1 did not turn up. Plaintiff sent reply to notice of defendant No. 1 on the same day. Defendant No. 1 was asked to get the attachment of suit property vacated. It appears that meanwhile, the suit land was attached at the instance of the Bank. Defendant No. 1 gave evasive reply on 17.8.1994. At the time of agreement, plaintiff was not aware that the suit land had been mortgaged with or attached by Punjab National Bank. Defendant No. 1 committed breach of agreement. Plaintiff was always ready and willing to perform his part of contract.

(3.) Defendant No. 1 in his written statement admitted execution of the agreement and receipt of Rs. 75,000/- as earnest money at that time. Defendant No. 1 also admitted receiving further amount of Rs. 50,000/- on 23.6.1993 against writing. However, defendant No. 1 controverted other plaint allegations. Receipt of further amount of Rs. 70,000/- was denied. It was pleaded that plaintiff was not ready and willing to perform his part of the contract. On 1.8.1994, defendant No. 1 went to the office of Sub-Registrar and also sent reply dated 17.8.1994 to notice dated 1.8.1994 of the plaintiff. Various other pleas were also raised.