SUNITA Vs. VIRENDER SINGH

JUDGEMENT

(1.) THE trial court vide judgment and decree dated 11.03.2010 while declining the relief for specific performance of agreement dated 09.07.2003, decreed the suit of plaintiff/respondent for an alternative relief for recovery of Rs.1,50,000.00 along with interest @ 12% p.a. till the date of advancement of the loan i.e. 9.7.2003 till realization. Whereas, first appellate court dismissed the appeal filed by the defendant. As such defendant has preferred this second appeal.

(2.) LEARNED counsel for the appellant submits that lower appellate court has erred in dismissing the appeal on the ground of limitation without considering the plea on merits. According to her, delay occurred as appellant is an illiterate lady.

(3.) PLAINTIFF filed suit against defendant for possession of plot in question by specific performance of the agreement to sell dated 09.07.2003. The plaintiff alleged that defendant agreed to sell the suit property to him for a consideration of Rs.1,50,000.00 and received the entire sale price on the same day. Agreement was executed and signatures on the same were put by two witnesses. Receipt in respect thereof was also executed on the same day and agreement was also got attested by Notary at Jind. It was also stipulated in the said agreement that in case defendant does not refund the amount upto 10.10.2003, then defendant will execute the sale-deed. In case of failure to do so, plaintiff would be entitled to get the same executed through court. The plaintiff had always been ready and willing to perform his part of the contract. Despite repeated requests, defendant neither executed the sale-deed nor returned the money. Even plaintiff requested her to be present before the Sub Registrar, Jind on 11.10.2003. There being holiday on 11.10.2003, plaintiff remained present on 12.10.2003 & 13.10.2003 in the office of Sub Registrar but defendant did not turn up. He got his presence marked on 13.10.2003 in the said office. He also served her two legal notices asking the defendant to come to the office of Sub-Registrar, Jind but she did not turn up. Defendant having failed to perform her part of the agreement plaintiff was compelled to file the present suit.