RAJ KUMAR GARG Vs. RAJ KUMAR

JUDGEMENT

(1.) SUIT FOR SPECIFIC PERFORMANCE. Plaintiff has instituted a suit for specific performance of agreement dated 24.08.2006. According to the plaintiff, he entered into an agreement with the defendants on 24.08.2006, for purchasing the land to the extent of 65 bighas, comprised in Khata No. 1, Khatoni No. 1 to 4, total Khasra Nos. 25, as per Jamabandi for the year 200 1 -2002, in which the defendants have share to the extent of 75 bighas out of total land, measuring 174. 13 bighas, situated in village Char, Pargana Lachrang, Tehsil Kausali, District Solan, H.P.. The total sale consideration for purchasing the land to the extent of 65 bighas was fixed at ˜48 lacs and out of the total land, a sum of ˜4 lacs was paid to the defendants, which was acknowledged by them. The remaining sale consideration was to be paid by the plaintiffs on or before 23.04.2007, by which date, the sale deed was to be executed by the defendants in favour of the plaintiff. The agreement was entered into between the parties in the presence of two witnesses, namely Shri Sandeep Kumar and Shri Pankaj. The plaintiff remained present in the office of Sub Registrar, Kasauli alongwith the balance sale consideration as well as money for the purpose of purchasing the stamp papers etc. for the purpose of execution and registration of the sale deed. A registered notice was sent to the defendants on 20.04.2007, whereby both the defendants were requested to execute, sign and deliver the sale deed and to remain present for registration on 23.04.2007. The notice dated 20.04.2007 was sent through registered A.D. to both the defendants. The notices were also sent to the defendants under U.P.C.. Plaintiff was ready and willing to perform his part of the contract. The defendants failed to appear before the Sub Registrar on 23.04.2007. There was an entry with regard to mortgage of the land falling to the share of defendant No. 2 for a sum of rupees 8 lacs, which entry stood removed, since defendant No. 2 has deposited the amount on 14.03.2007. According to the plaintiff, it was for the defendants to clear all encumbrances before getting the sale deed executed and registered in his favour. According to the plaintiff, the time was not an essence of the contract nor the parties had agreed by way of entering into an agreement to make the time as an essence of the contract. The cause of action had accrued in favour of the plaintiff on 24.08.2006 and thereafter on 20.04.2007. According to the plaintiff, this Court has the territorial as well as pecuniary jurisdiction to entertain and try the suit. The court fee has been affixed as per law. It is in these circumstances, the plaintiff has filed the suit for specific performance of the agreement dated 24.08.2006 and has prayed for a decree for possession of the suit as per the details given in the plaint.

(2.) THE suit was contested by the defendants. The defendants have taken a number of preliminary objections. According to the defendants, plaintiff was estopped by his own act, conduct and acquiescence to file and maintain the suit. The suit is not maintainable in the present form as the plaintiff has no legal, valid, enforceable and subsisting cause of action against the defendants to file and maintain the suit. On merits, it is denied that the agreement was entered into between the parties on 24.08.2006 for the purchase of land, measuring 65 bighas. It is denied that according to agreement, total sale consideration of the land measuring 65 bighas was fixed at ˜48 lacs. It is also denied that a sum of ˜4 lacs was paid to them by the plaintiff. It is also denied that the sale consideration was to be paid by the plaintiff on or before 23.04.2007. According to the defendants, the alleged agreement is illegal, false and fictitious document and is an out come of fraud having been played by one Shri Ankush Vashisht, who was defendant in a suit pending before Civil Judge (Junior Division), Kasauli. The plaintiff and Shri Ankush Vashisht were acting as property dealers. The plaintiff and one Shri Ankush Vashisht and few other persons got signatures of the defendants on the blank papers and on some judicial and non -judicial papers for finalizing the matter for sale of 50 bighas of land for a sale consideration of ˜3 crores. The defendants were also visited by Shri Ankush Vashisht. On 16.01.2007, the plaintiff alongwith some other persons came to the house of defendants in the evening and claimed that they were sent by Ankush Vashisht as some more signatures were required and they were made to sign on some blank papers. According to the defendants, these documents were false and fictitious. There was no occasion for the defendants to enter into an agreement with the plaintiff. The defendants never received any amount from the plaintiff and the matter was also reported to the police on 02.02.2007, a copy of the same was sent to the D.G.P., Shimla and also to Honble Chief Minister of Himachal Pradesh, demanding inquiry into the matter. It is denied that the agreement was made in the presence of Shri Sandeep Kumar, son of Shri Murli Dhar and Pankaj, son of Shri Beli Ram. It is denied that the plaintiff remained present in the Court of Sub Registrar, Kasauli for purchasing the stamp papers etc. for the purpose of execution of sale deed. It is denied that a notice was sent on 20.04.2007 to the defendants. It is denied that the defendants have failed to appear before the Sub Registrar on 23.04.2007. It is denied that the plaintiff was entitled for the relief of specific performance. It is denied that the time was not an essence of the contract since the property agreed to be sold by the defendants and purchased by the plaintiff being the immovable property. It is denied that the suit is within limitation. According to the defendants, no cause of action has arisen in favour of the plaintiff.

(3.) ON the pleadings of parties, the following issues were framed by this Court on 13.03.2008: