ASHOK KUMAR Vs. KALI PRASAD

JUDGEMENT

(1.) This first appeal has been filed by the defendant-appellant against the judgment and decree dated 9.5.1986 passed by Sri Ganga Ram, the learned 1st Subordinate Judge, Gaya in Title Suit No. 30 of 1984 decreeing the plaintiff-respondent's suit for specific performance of contract.

(2.) The original plaintiff-respondent Kali Prasad (since deceased) had filed Title Suit No. 30 of 1984 for specific performance of contract dated 23.11.1983. The plaintiff's case in short is that the defendant-appellant entered into a contract for sale dated 23.11.1983 with the plaintiff to sell the holding for a sum of Rs. 65,000/-. The agreement to sell was executed and Rs. 10,000/- was paid as advance consideration. It was agreed between the parties that the sale deed would be executed on payment of balance consideration of Rs. 55,000/- on or before 31.3.1984. The further case is that since after the execution of the agreement the plaintiff approached the defendant several times and requested to receive the balance consideration amount of Rs. 55,000/- but the defendant avoided in one pretext or other. The plaintiff issued notice but the defendant did not execute the sale deed. The plaintiff was always ready and willing to perform his part of contract.

(3.) The appellant on being noticed appeared and filed a contesting written statement. Besides taking various ornamental pleas, the defendant stated that plaintiff never approached the defendant and never tendered the balance consideration money. The further case of the defendant is that he entered into an agreement with one Bishwanath Prasad on 24.11.1983 to purchase an oil mill and the last date for registering the sale deed was 1.4.1984. Because the plaintiff failed to pay the balance consideration amount the defendant could not pay the consideration amount to Bishwanath Prasad as such the sale deed for purchasing oil mill could not be obtained and the earnest money which the defendant had paid to Bishwanath Prasad was forfeited. The defendant also denied all other allegations. The readiness and willingness on the part of the plaintiff was also denied.