SHIV CHARAN Vs. RUPESH KUMAR

JUDGEMENT

(1.) The appellant/defendant - Shiv Charan has filed Regular Second Appeal against impugned judgment and decree dtd. 14/8/2014 passed by learned Additional District Judge, Ludhiana vide which learned Additional District Judge, Ludhiana dismissed the appeal preferred by Shiv Charan - appellant/defendant and the judgment and decree dtd. 26/4/2012 passed by learned Civil Judge (Junior Division), Ludhiana in favour of Rupesh Kumar - respondent/plaintiff was upheld.

(2.) Rupesh Kumar - respondent/plaintiff had filed suit for possession by way of specific performance of agreement dtd. 18/1/2008, directing the defendant to execute the sale deed in his favour regarding a portion of House No. B-XVIII-3675 measuring 102 Sq. Yd. consisting of two shops, one room, kitchen, court-yard duly fitted with electricity, water supply, sewerage and shutters on the two shops comprising in Khasra No. 66//22/2, Khata No. 37/47 situated in the revenue estate of Village Taraf Karbara, known as Model Gram Road, Ludhiana, after receiving the balance sale consideration of Rs.33,50,000.00 alongwith the relief of permanent injunction restraining the defendant from alienating or creating any encumbrance either himself or through agents etc. as detailed in the head note of the plaint.

(3.) The plaintiff submitted that defendant is the owner of the aforesaid property which he had agreed to sell in his favour vide agreement dtd. 18/1/2008 for a total sale consideration of Rs.44,50,000.00. The defendant had received earnest money of Rs.11,00,000.00 in the presence of marginal witnesses and he agreed to execute the sale deed on or before 30/6/2008. It was agreed by the defendant that the house which was mortgaged with UCO Bank, Chaurha Bazar, Ludhiana, he will produce No Due Certificate from the bank after making payment of entire outstanding loan amount. He would also produce TS-1, original sale deed and cleared title in the shape of Jamabandi before 30/6/2008 and would execute the sale deed in favour of the plaintiff. On 30/6/2008 and 1/7/2008 were declared holidays by the State Government and the plaintiff requested the defendant orally to execute the sale deed on 2/7/2008. On this date, the defendant got his presence marked before the concerned authority where he was present with balance sale consideration and money required for other expenses as per the terms of agreement dtd. 18/1/2008 but the defendant did not turn up to perform his part of agreement to sell. The plaintiff inquired from the bank and came to know that the defendant did not clear the loan amount. He repeatedly requested the defendant to clear the bank loan and to execute the sale deed in his favour. On 15/7/2008, he served legal notice upon the defendant through his counsel requesting to clear the loan of the bank, to get TS-1 from M.C Ludhiana, No Due Certificate from the bank and to execute the sale deed in his favour on or before 29/7/2008. The plaintiff received reply to the legal notice dtd. 15/7/2008 (inadvertently the date of agreement was mentioned wrongly as 11/1/2008) through his counsel Sh. L.S. Rai, Advocate in which he intimated that property in question was free from lien, charges and encumbrances and that the plaintiff was not having sufficient funds to get the sale deed executed. In the said reply, the defendant admitted the execution of agreement as well as receipt of Rs.11,00,000.00 as earnest money. The defendant instead of executing the sale deed filed caveat in the Court. He further came to know from reliable sources that the defendant was trying to dispose off the property by way of sale to some other persons. The plaintiff was always ready and willing and he is still ready and willing to perform his part of agreement. On 29/7/2008, the plaintiff remained present before the concerned authority with balance sale consideration alongwith two cheques for a sum of Rs.15,00,000.00 and another for a sum of Rs.5,00,000.00 alongwith cash amount but despite this, the defendant did not come forward to perform his part of agreement dtd. 18/1/2008. Ultimately, the plaintiff filed the present suit.