SOM MASIH Vs. NARESH KUMAR

JUDGEMENT

(1.) THIS is defendant's second appeal challenging the judgment and decree of the lower Appellate Court dated 12.03.2012 whereby the appeal of the plaintiff -respondent No. 1 against the judgment and decree dated 6.2.2010 of the trial Court in Civil Suit No. 225 of 2004 was accepted and suit of the plaintiff -respondent No. 1 was decreed for specific performance of the agreement to sell in question dated 7.4.2003 modifying the decree of the trial Court, whereby, suit was partly decreed for the alternative relief of recovery of earnest amount of Rs. 65,000/ -.

(2.) AS per the averments made in the civil suit, appellant -defendant executed an agreement to sell dated 7.4.2003 in favour of respondent No. 1/plaintiff for selling the suit land and received a sum of Rs. 65,000/ - as earnest money from him. The balance sale price was to be paid at the time of execution of the sale deed on or before 7.10.2004. According to the plaintiff -respondent No. 1, he always remained ready and willing to perform his part of contract. However, appellant -defendant failed to turn up on the stipulated date and had mortgaged some part of the suit land with proforma respondent No. 2 after execution of the agreement in question in an illegal manner and thus, the plaintiff -respondent filed the instant suit seeking specific performance of the agreement to sell in question.

(3.) PROFORMA respondent No. 2 filed separate written statement stating that the suit land was mortgaged by the appellant in its favour and respondent No. 2 has first charge over the suit property to the extent of loan amount.