GAURAV SHARMA Vs. HARISH KUMAR SHARMA

JUDGEMENT

(1.) This Regular First Appeal is directed against the judgment and decree dated 30.11.2012 passed by the District Judge, Shimla in Civil Suit RBT No. 11-S/1 of 2009/2008.

(2.) "Key facts" necessary for the adjudication of this Regular First Appeal are that respondent-plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) filed a suit against the appellant-defendant (hereinafter referred to as the 'defendant' for convenience sake) for specific performance of agreement dated 19.4.2007 Ex.PW-4/A for execution of sale deed and in alternative for recovery of sum of Rs. 8,00,000/-. According to the plaintiff, defendant entered into an agreement for sale of property with him on 19.4.2007 at Shimla. Defendant claimed himself to be owner of three storeyed building situated in Khata Khatauni No. 384/499, Khasra No. 1135 measuring 143-76 square meters situated in Up- Mohal Sanjauli, Tehsil and District Shimla. He agreed to sell attic flat having its plinth area approximately 900 square feet on top storey of three storeyed building for sale consideration of Rs. 11,00,000/-. According to the plaintiff, defendant assured him that there was no defect in his title over the property. Plaintiff paid part of sale consideration of Rs. 2,00,000/- through cheque bearing No. 4098407/-. The remaining amount of Rs. 6,00,000/- was agreed to be paid at the time of registration of sale deed. It was also pleaded that balance amount of Rs. 3,00,000/- was agreed to be paid to by plaintiff to defendant in three equal installments of Rs. 1,00,000/- each in the months of June, 2007, July, 2007 and August, 2007. Plaintiff paid a sum of Rs. 1,00,000/- on 13.10.2007, Rs. 1,00,000/- on 16.10.2007 and another Rs. 1,00,000/- on 29.10.2007 through cheques to the defendant. In all, plaintiff paid Rs. 5,00,000/- to the defendant. However, defendant has failed to perform his part of contract and he did not execute sale deed in favour of plaintiff. Plaintiff has prayed for the execution of sale deed. Notice was issued to the defendant.

(3.) Suit was contested by the defendant. According to the defendant, an agreement automatically stood cancelled on 30.10.2007 and advance amount of Rs. 2,00,000/- stood forfeited. It is admitted that agreement to sell dated 19.4.2007 was executed between the parties. According to the defendant, he was holding a valid and legal power of attorney dated 7.2.2003 in his favour whereby he was appointed as power of attorney on behalf of his mother Jyoti Sharma to enter into agreement to sell land in suit. It was denied that plaintiff has paid a sum of Rs. 5,00,000/-. According to the defendant, plaintiff did not pay balance sale consideration amount of Rs. 9,00,000/- to defendant within specified period.