KISHAN SINGH Vs. ARUN KUMAR

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 27.09.2003, rendered by the Court of Civil Judge (Junior Division), Jagraon, vide which it decree the suit of the plaintiff for recovery of Rs. 2,05,500/ - alongwith costs and interest at the rate of 9% per annum from the date of institution, till the date of decree and 6% simple interest, from the date of decree till realization, and the judgment and decree dated 13.12.2006, rendered by the Court of District Judge, Ludhiana, vide which the appeal against the judgment and decree of the trial Court, was dismissed, has been filed by the appellant -defendant.

(2.) SHORN off unnecessary details, the relevant facts of the case, are that the defendant, being the owner of the suit land measuring 47 kanals 0 marla, as fully detailed, in the head note of the plaint, executed the agreement to sell dated 17.07.1996, for a sale consideration of Rs. 34,000/ - per killa, in favour of the plaintiff and received a sum of Rs. 1,50,000/ - as earnest money on that date. The defendant agreed to execute the sale deed on 30.07.1997, alongwith all the amenities i.e. Electric motor, Rasta and Khal. It was further stated that at the time of execution of the agreement to sell, the land measuring 40 kanals 0 marla was under mortgage with the Scheduled Bank, as the defendant had secured a loan, on the basis thereof. As per the stipulation in the agreement, the defendant undertook to get the mortgage redeemed. The plaintiff continued contacting the defendant for the execution of the sale deed, and he was also asked to bring 'No Due Certificate' from the concerned bank, to avoid any further complications, but to no avail. It was further stated that the plaintiff had always been ready and willing to perform his part of the contract, but the defendant breached the same. Ultimately, a suit for specific performance and in the alternative, for recovery, was filed.

(3.) FROM the pleadings of the parties, the following issues, were framed, by the trial Court: