EIDER FINANCE CO (P) LTD Vs. DHANPAT

JUDGEMENT

(1.) Plaintiff is in appeal before this court against the concurrent findings of both the courts below whereby the suit filed by it for possession by way of specific performance of agreement to sell dated 26.2.1997, was dismissed. Briefly the facts as are available on record are that the appellantplaintiff filed a suit against the respondents for possession by way of specific performance of agreement to sell dated 26.2.1997 for land measuring 55 kanals 10 marlas for a total sum of Rs. 2,77,500/-, out of which Rs. 1,75,000/- was paid as earnest money. It was mentioned in the agreement to sell that sale-deed was to be executed after the decision of Civil Suit No. 202 of 1996 pending in the court of Additional Civil Judge (Senior Division), Balachaur and in case of failure, the respondents-defendants was liable to pay Rs. 3,50,000/- to the appellant-plaintiff. In the alternative, the agreement to sell could be enforced through the court. Civil suit mentioned in the agreement to sell was decided on 23.10.2000. As the respondents-defendants failed to execute the sale-deed, the suit was filed. The respondents-defendants contested the suit, inter-alia, with the pleas that there is no privity of contract with the plaintiff-company and defendants. The alleged agreement to sell dated 26.2.1997 does not bear signatures/ thumb impression of Varinder Mohan Sharma, through whom, the plaintiff-company alleged to have entered into agreement to sell with the defendants. As there are cuttings, over writings and alterations on the alleged agreement to sell, therefore, the same cannot be enforced.

(2.) Initially, in the absence of any evidence on record, the suit was dismissed vide judgment dated 20.2.2004. Feeling aggrieved against the judgment of the trial court, the appellant filed appeal in which the matter was referred back vide judgment dated 25.1.2006 by granting one opportunity to the appellant to lead entire evidence. However, even on that date, the evidence was led in part and was not concluded. In view of the order passed by the learned Lower Appellate Court at that time, the evidence of the appellant-plaintiff was closed and the suit was dismissed. Even in appeal, the appellant-plaintiff failed. It is the aforesaid judgments and decrees which are sought to be impugned by the appellant. It is also required to be noticed that there is a delay of 107 days in filing the appeal for which an application for condonation of delay has been filed.

(3.) Learned counsel for the appellant-plaintiff submitted that delay in filing of the appeal occurred on account of the fact that the counsel who was engaged in the court below did not supply the certified copy of the judgment and decree of the learned Lower Appellate Court dated 20.5.2009 within the period of limitation. As far as the merits of the appeal are concerned, it was submitted that the appellant had not been afforded opportunity to lead its evidence. The agreement to sell could not possibly be denied by the respondents-defendants and in case proper opportunity had been granted to the appellant, the same could have been proved. As the respondents-defendants had become greedy on account of rise in the prices of land and did not want to part with the land at the price settled between the parties, the dispute arose.