ARUN CHAUHAN Vs. GEETA THAKUR

JUDGEMENT

(1.) THE plaintiff has instituted the instant suit for specific performance of the contract of 22.12.2006 entered into by him with defendant No. 1. The plaintiff avers that he entered into an agreement to sell with defendant No. 1 on 22.12.2006 whereby defendant No. 1 agreed to sell land measuring 9 bigha, 7 biswa situated at mauja Chamiyana, Tehsil and District Shimla, H.P., for a total consideration of Rs. 45,00,000/ -. Defendant No. 1 has been averred to have at the time of execution of the agreement to sell received from the plaintiff a sum of Rs. 3,00,000/ - and the remaining amount of Rs. 42,00,000/ - was agreed to be defrayed to the seller by the buyer at the time of registration of the sale deed. Besides, it is averred that it was also mandated in the agreement to sell entered into inter se the parties at contest that the sale deed qua the suit property would be executed within three months from the date of execution of the agreement to sell. A clause was incorporated in the agreement to sell entered into inter se the parties at contest that in case the seller omits to execute the sale deed in favour of the purchaser within three months from the date of execution of the agreement to sell or she resile from the promise comprised in agreement to sell, to execute the registered deed of conveyance in favour of the plaintiff, within the stipulated period of three months, then, the plaintiff was conferred with a right in the agreement to sell to specifically get the agreement enforced, as also, had a right to receive double of the amount of part of sale consideration. The plaintiff continues to aver that in the month of October, he fell critically ill and in his examination, it was discovered that both his kidneys had been damaged and was advised to undergo transplant surgery. Consequently, on 7.2.2008, he had undergone surgery in silver Oak Hospital, Mohali, Chandigarh. A period of 3 to 4 months was consumed by the plaintiff to recuperate. He avers that on his returning to normal life, he requested defendant No. 1 in the month of May, 2008 to execute the sale deed in his favour and to receive the balance amount of sale consideration. However, the response of defendant No. 1 to the overtures of the plaintiff was not favourable. The plaintiff kept on persuading the defendant No. 1 to honour her commitment and perform her part of the contract, however, to no avail. The unwillingness of defendant No. 1 to perform her part of contract had led the plaintiff to issue a legal notice of 19.8.2006 upon her. However, inadvertently the name of one Smt. Neelam Kapoor was mentioned in place of the name of the plaintiff. The inadvertent issuance of notice on behalf of Neelam Kapoor on the part of the counsel, squealed a reply of defendant No. 1 through her counsel of the aforesaid having not entered into any agreement to sell with the plaintiff. In sequel, the counsel for the plaintiff on detecting that inadvertent mentioning of the name of Neelam Kapoor in the notice dispatched, a rejoinder -cum -reminder, on 9.7.2008, to defendant No. 1 and to her counsel, which rejoinder -cum -reminder was accompanied by a notice rectifying the mistake in the name of the plaintiff, which had occurred in the earlier notice of 19.6.2008. Through the said rejoinder -cum -reminder, dated 9.7.2008, the plaintiff was again called upon defendant No. 1 to perform her part of obligation under agreement to sell. The plaintiff avers that defendant No. 1 had executed a general power of attorney bearing registration No. 121, dated 17.6.2008 in favour of one Sukh Dev Chauhan alias Raj Chauhan, which was registered before the Sub Registrar, Theog. In sequel, thereto, defendant No. 3, the general power attorney holder of defendant No. 1 sold the land measuring 0 -72 -03 hectare out of the suit land measuring 0 -74 -12 hectare to his brother Sh. Chander Chauhan for Rs. 10,00,000/ - under sale deed dated 25.7.2008, bearing registration No. 1052/08, registered before the Sub -Registrar (Rural), Shimla. The plaintiff avers that defendant No. 2 is not a bonafide transferee for value and has not acted in good faith while making the payment, inasmuch, as he and defendant No. 3 were having actual as well as constructive notice of the existence of earlier sale agreement dated 22.12.2006 executed by defendant No. 1 in favour of the plaintiff besides the legal notice and rejoinder -cum -reminder stood already served upon defendant No. 1, prior to the registration of the sale deed. The plaintiff avers that defendant No. 3 being the attorney of defendant No. 1 will be presumed to have acknowledged service of notice served upon his principal and whereas the defendant No. 2 is none other than his real brother. Consequently, it is averred that defendant No. 2 being the subsequent purchaser having knowledge of the earlier agreement to sell, stands in a fiduciary relation with the plaintiff, as such, he is bound to keep the suit land for and on behalf of the plaintiff and is further bound to protect his interest in his capacity of a trustee. The plaintiff continues to aver that sale transaction by defendant No. 3 in favour of defendant No. 2 is otherwise highly unusual as the land was sold for a much lower sale consideration of Rs. 10,00,000/ - as against the sale consideration of Rs. 45,00,000/ - agreed to be paid by the plaintiff to defendant No. 1 as per the agreement to sell, besides the average value of the land has been shown to be Rs. 82,80,000/ - in the sale deed on which stamp duty of Rs. 4,14,000/ - was paid. The plaintiff avers that the sale deed was executed just to defeat his legitimate rights with active and mutual connivance on the part of the defendants. The plaintiff further avers that defendant No. 2 being purchaser of the suit property, acquired title from defendant No. 1 subsequent to the earlier contract, is, therefore, bound to execute the sale deed in favour of the plaintiff in respect of the land which was transferred to him under the sale deed and defendant No. 1 is bound to transfer and execute the sale deed in favour of the plaintiff in respect of the remaining land left with her. It is further averred by the plaintiff that he has always been and is still ready and willing to perform his part of the contract and that without prejudice to above and in alternative, he submitted that since defendant No. 1 has failed to perform her part of the agreement and violated the terms and conditions of the same as she never offered herself for the execution of the sale deed, as a consequence he is entitled to and has right to receive double of the amount of Rs. 3,00,000/ - paid at the time of the execution of the agreement to defendant No. 1, accordingly, the plaintiff claims a sum of Rs. 6,00,000/ - on account of refund of advance paid including compensation along with interest at the rate of 12% per annum on the above amount on equitable grounds. The plaintiff prays for a decree for specific performance directing the defendants No. 1 and 2 to execute a sale deed in respect of their share and title in the suit land comprising Khata/Khatauni No. 45/104, Khasra No. 43/1, 64, 26/1, 130 kita 4, measuring 0 -17 -47 hectare, 48/65th share which comes to 0 -38 -24 hectare out of total land measuring 0 -51 -79 hectare comprising Khata Khatauni No. 49/115, khasra No. 44, 21/25th share which comes to 0 -15 -77 hectare out of total land measuring 0 -18 -78 hectare comprising khata khatauni No. 50/116, khasra No. 45, 15/144th share which comes to 0 -02 -64 hectare out of total land measuring 00 -25 -43 hectare comprising khata Khatauni no. 55/121 to 123, khasra No. 744, 48, 55, 53, 54, 57, 58, kita 7, situated at Mauja Chamiyana, Tehsil and District Shimla, H.P., the total suit land thus comes to 0 -74 -12 hectare or say about 9 bighas 7 biswas and in alternative the plaintiff prays for a decree for the refund of advance paid with compensation thereby directing the defendants No. 1 and 2 to pay a sum of Rs. 6,00,000/ - to plaintiff alongwith interest @12% per annum from the date of suit till payment.

(2.) THE suit was contested by the defendants and defendants No. 1 and 3 have filed separate written statement, whereas defendant No. 2 adopted the written statement filed by defendant No. 3.

(3.) DEFENDANT No. 3 in his written statement has taken the preliminary objections inter alia: maintainability, estoppel, plaintiff being not entitled to the discretionary and equitable relief under Specific Relief, suit is not property valued for the purpose of court fee, bad on account of joinder and non -joinder of necessary parties and jurisdiction and that the plaint as filed lacks material correct and better particulars. On merits, the execution of agreement to sell dated 22.12.2006 entered into interest the plaintiff and defendant No. 1 as also the terms and conditions as contained therein have been denied for want of knowledge. However, it is submitted that the plaintiff has set up his claim initially on the basis of agreement for sale dated 22.12.2006 but he himself failed to perform his part of the contract and therefore, he is not entitled to the relief as claimed. It is further submitted that the plaintiff was bound to pay Rs. 42 lacs before 21.3.2007 to defendant No. 1. However, he failed to perform his part of the contract, as such, after 21.3.2007, defendant No. 1 was not bound to sell land in question to the plaintiff. Issuance of notice followed by rejoinder -cum -reminder by the plaintiff is admitted. It is also submitted that the notice was duly replied to. It is submitted that the agreement to sell entered into inter se plaintiff and defendant No. 1 had come to an end on 22.3.2007. Execution of the general power of attorney by defendant No. 1 in favour of replying defendant No. 3 has been admitted and it is submitted that the land in question was sold on 25.7.2008. However, defendant No. 2 had agreed to provide a flat worth Rs. 50 lacs to defendant No. 1 and therefore, the claim as set up by the plaintiff that she had sold the land in question only for sum of Rs. 10 lacs is not correct. The alienation of one flat to defendant No. 1 by defendant No. 2 was part and parcel of the sale deed dated 25.7.2008. Defendant No. 2 and 3 have been averred to have no liability to pay any amount to the plaintiff. Defendant No. 2 has been averred to be a bonafide purchaser and he acted in good faith. Defendants No. 2 and 3 have been averred to be having no knowledge about the agreement to sell executed inter se the plaintiff and defendant No. 1.