KRISHAN SWARUP BHATNAGAR Vs. CHANDER MOHAN REWAL

JUDGEMENT

(1.) Appellant is the defendant, whereas, respondent No. 1 is the plaintiff and respondent No. 2 is defendant No. 2 and they will be referred to as such in this judgment. This appeal at the instance of the defendant is against the decree and judgment dated 23-3-1998 passed by District Judge, Shimla whereby the suit of the plaintiff was decreed for specific performance of the contract dated 25-8-1993 against the defendant, who is directed to execute the sale deed in respect of the suit property in favour of the plaintiff on his paying a sum of Rs. 3,70,000/- on account of balance sale consideration. The suit property is a house and adjoining vacant land bearing Khasra numbers 131, 132 and 133 situate in Estate Andheri, Summer Hill, Shimla. Initially the suit was instituted in the High Court but later on it was transferred to the Court of District Judge when the pecuniary limit of the said Court was increased from Rs. 2 lacs to Rs. 5 lacs.

(2.) The facts in brief, as pleaded in the plaint, are that the defendant who is owner of the suit property, had got published and circulated hand bills through property dealer defendant No. 2 offering sale of the suit property for Rs. 3,50,000/-, in response to which the plaintiff contacted defendant No. 2 and after inspecting the suit property, entered into sale agreement for consideration of Rs. 4 lacs on 25-8-1993 and paid a sum of Rs. 30,000/- as advance money besides Rs. 2,000/- as commission/service charges of defendant No. 2. The balance amount of Rs. 3,70,000/- was agreed to be paid at the time of execution of the sale deed, which was to be executed on 26-10-1993 as per the terms of the agreement. Thereafter, after obtaining permission from the Government on 14-10-1993 to purchase the suit property as required under Section 118 of the H.P. Tenancy and Land Reforms Act (hereinafter called 'the Act'). The plaintiff sent a registered letter to the defendant requiring him to obtain necessary certificate under the Income-tax Act but he refused to accept the said registered letter and informed defendant No. 2 that he was not interested in selling the suit property, who in turn further informed the plaintiff the intention of the defendant.

(3.) In these circumstances, the plaintiff gave legal notice by registered post to defendant No. 1 on 22-10-1993, which was also refused as per endorsement of the Postal Authorities, and attended the Office of the Registrar, Shimla to make himself available to the defendant for the execution and registration of the sale deed but the defendant did not turn up. Thereafter, the present suit was filed by the plaintiff for specific performance of the agreement dated 25-8-1993 requiring the defendant to execute the sale deed in respect of the suit property in favour of the plaintiff and in the alternative for damages. In para 8 of the plaint it is specifically averred that the plaintiff has always been willing and is still willing to perform his part of the contract to pay the balance amount of sale consideration i.e. Rupees 3,70,000/- to the defendant, but it seems that the defendant is not interested in performing his part of the contract as he has refused to abide by the terms of the agreement dated 25-8-1993.