KAILASH CHAND Vs. SHRI JAGIDISH CHAND AND ORS.

JUDGEMENT

(1.) THE Plaintiff has instituted this suit praying for a decree for specific performance on the ground that an agreement to sell Ex.PW -2/A was entered into between the parties for the suit land as described in para -2 of the plaint namely, land measuring 8 Bighas and 11 Biswas situated in village Manjholi, Pargana Bir Plassi, Tehsil Nalagarh District Solan, land measuring 6 -13 Bigha bearing Khasra No. 551/348 (6 Bigha 13 Biswa) comprised in Khewat/Khatauni Nos. 27 min/28 min, land measuring 0 -7 Biswa bearing Khasra No. 554/355, (0 -7 Biswas comprised in Khewat Khatauni No. 27 min/28 min);land measuring 1 -1 Bigha bearing Khasra No. 556/386 (1 Bigha 1 Biswa) comprised in Khewat Khatauni No. 27 min/28 min); 2/3rd share out of land measuring 0 -8 biswa bearing Khasra No. 552/348 (0 -8 Biswas) comprised in Khewat Khatauni No. 28 min/30 min; 2/3rd share out of land measuring 0 -1 Biswa bearing Khasra No. 553/355 (0 -1 Biswa) comprised in Khewat Khatauni No. 28 min/30 min and 24/54th share out of land measuring 0 -9 Biswa bearing Khasra No. 350 (0 -9 Biswas), comprised in Khewat Khatauni No. 35/37 min, all this land is situated in village Bir Plassi, Hadbast No. 101, Pargana Plassi, Tehsil Nalagarh, District Solan.

(2.) IT is pleaded that the Plaintiff is ready and willing to perform his part of the contract, but it was the Defendant who subsequently dodged the agreement and did not honour the commitment made. The total consideration was Rs. 17.10 lac, out of which Rs. two lac had already been paid by the Plaintiff to the Defendants which fact is not denied. On the pleadings of the parties this Court framed the following issues: -

(3.) ALL these issues are taken up together for decision as they are vital for determination of the rights of the parties to the suit; namely; as to whether the time was the essence of the contract and as to whether the Plaintiff is entitled to a decree for specific performance. On the first point to be determined as to whether the time was the essence of the contract, all that needs to be said is that the reading of Ex.PW -2/A itself shows that the parties have dispensed with the requirement of treating time as the essence of the contract. After having executed the agreement for consideration of Rs. 17.10 lac and acknowledging the fact that a sum of Rs. two lacs was paid, there is an endorsement on the back of the agreement that on 27.4.2004, the parties had mutually agreed that 5 or 6 lacs rupees will be paid to the Defendants on 10.5.2004 and the remaining by 30th May, 2004, which reads: