V N ROY Vs. SHILA NARAYAN

JUDGEMENT

(1.) This appeal has been filed by the defendant No. 1-ap-pellant against the judgment and decree dated 13-3-1992 passed by the 2nd Subordinate Judge, Chas, Bokaro, in Title Suit No. 45 of 1988 whereby and whereunder the suit filed by the plaintiff-respondent No.1 for specific performance of contract has been decreed.

(2.) The plaintiff filed the aforesaid suit against the appellant and defendant-respondent No. 2 for a decree for specific performance of contract in respect of the suit property consisting of house premises with land, out-house and apartments comprised within Plot No. 114 situated at Co-operative Colony, Bokaro Steel City, in the district of Dhanbad. The plaintiff's case, inter alia, was that she is a medical practitioner employed at Bokaro General Hospital and the husband of the plaintiff is also a heart specialist previously employed in the Bokaro General Hospital and now practising as a private medical practitioner. The defendant No. 1 appellant is the owner of the house in the co-operative colony and defendant No. 2 has been occupying the suit property as a monthly tenant under defendant No. 1 appellant. The plaintiff's case was that defendant No. 1 entered into an agreement with her on 7-4-1987 for sale of the suit property on a consideration of Rs. 2.50 lakhs and an agreement to that effect was duly executed on 27-4-1987. The plaintiff, in part performance of the contract, paid a sum of Rs. 5,000/- to the defendant No. 1 by a bank draft dated 1-4-1987. There has been specific condition in the agreement that the balance amount of Rs. 2.45 lakhs will be payable to the defendant-appellant after deducting payment of dues payable to the co-operative society against the suit property. It was also specifically agreed that the vacant possession of the house shall be given by the appellant to the plaintiff on the date of first instalment and transfer deed of plot together with the house will be executed at the office of the Sub Registrar, Chas, after the balance amount is paid latest by the month of July, 1988 by the plaintiff. The plaintiff's further case was that in terms of the agreement, the defendant-appellant wrote a letter dated 29-7-1987 to the Secretary of the Bokaro Steel Employees Co-operative Society vide his letter dated 6-3-1987 intimating the defendant No. 1 about the dues of the Co-operative Society at Rs. 6,220/45P. The plaintiff as per the terms of the agreement cleared the entire co-operative dues till August 1987 on behalf of the defendant No.1. The plaintiff's further case was that the defendant No. 1 wrote to the defendant No. 2 on 30-4- 1987 and also the defendant No. 1 wrote a letter to the plaintiff's husband on 5- 6-1987 in which he has specifically "mentioned that the defendant No. 2 will be vacating the house by the end of July, 1987. Defendant No. 2 was further asked by the defendant No. 1 to vacate the suit-property and hand over possession to the plaintiff's husband. The plaintiff pleaded that the defendant No. 2 did not vacate the premises inspite of the aforesaid letters written by the defendant No. 1 and thus, the defendant No. 1 violated the terms of the agreement. The plaintiff further stated that giving vacant possession of the house to the plaintiff by defendant No. 1 was a condition precedent for payment of first instalment and for that reason, first instalment was not paid to the defendant No. 1. Further case of the plaintiff was that he has already written to defendant No. 1 letters dated 23-7-1987 and 13-8-1987 clearly mentioning that the entire balance money is ready and the defendant No. 1 has been requested to come to Bokaro to receive the balance consideration on execution of registered sale deed in favour of the plaintiff and hand over vacant possession of the premises to him. The plaintiff therefore claimed that he had been always eager, willing . and ready to perform her part of the contract right from the date of execution of the agreement. The plaintiff has written letters on 1-9-1987 under registered cover and also under certificate of posting calling upon the defendant No. 1 to perform his part of the contract as per the agreement and execute registered sale deed in her favour after receiving the balance consideration, but the defendant No. 1 failed to execute the registered sale deed. The plaintiff's further case was that she was surprised to receive a letter dated 18-9-1987 whereby the defendant No. 1 backed out from the terms of the agreement and unilaterally cancelled the agreement. The plaintiff then sent a registered Advocate's notice dated 18- 10-1987 to the defendant No. 1 calling upon him to execute and register the sale deed in her favour and put her into the vacant possession of the house in question. In reply thereof, the defendant No. 1 through his advocate, by letter dated 29-10-1987 returned the bank draft of Rs. 5001/- mentioning various incorrect, fabricated and wrong facts. By the said letter, the defendant No. 1 gave offer to the pilaintiff to purchase the suit premises on 'as is where is basis' within a fortnight of receipt of the reply. The plaintiff immediately replied to the said letter through her advocate refutting the entire allegations made in the said letter sent by the defendant No. l.The plaintiff then surprisingly received the letter dated 30-1-1988 sent by defendant No. 1 making baseless and fabricated allega- tions and mentioning about cancellation of the said agreement. The plaintiff having no alternative filcd the instant suit against the defendant for specific performance of contract. The - suit was contested by the defendant No. 1 appellant by filing a written statement denying and disputing the allegations made against him in the plaint. The defendant denied to have entered into any alleged written agreement for sale of the suit property for a consideration of Rs. 2.50 lakhs. The alleged written agreement dated 27-4-1987 is not a concluded contract and is not enforceable in law. The defendant's further case was that, in fact, the price of the suit property was poroposed to be Rs. 4,00,000/-(four lakhs) and not Rs. 2,45,000/-(Rupees two lakhs forty-five thousands); the proposal and offer for sale never materialised inasmuch as the agreement dated 27-4-1987 was not executed by all the parties concerned and could not take the shape of a concluded contract. The defendant further questioned and challenged the validity of payment of dues of Rs. 6,958.95 P by the defendant to the co-operative society. The defendant further denied that the consideration money was ever tendered to him by the plaintiff and the defendant was not bound to give vacant possession of the suit property to the plaintiff. It was further pleaded that the plaintiff and her husband were never ready and willing to perform their part of the contract, inasmuch as they failed to execute the concluded contract. It was further pleaded that the defendant No, 1 had written a letter to the Society for permission to sell the house, but as the plaintiff and her husband failed to execute and conclude the contract, the Defendant recalled and cancelled the said letter written to the Society. The alleged proposed agreement dated 27- 4-1987 naving not been executed and concluded, the same is not binding on the defendant and is not enforceable in law. The defendant further stated that the alleged letters/notice issued by the plaintiff's advocate are on wrong assumption of the valid contract, but, in fact, the alleged contract was never completed and concluded by executing the same by the parties to the agreement. The defendant further pleaded that in reply to the notice of the plaintiff, the defendant No. 1 even at that stage gave a fresh offer without prejudice, to purchase the house on 'as is where is basis' and on a payment of full consideration amount as agreed earlier, but the plaintiff failed to accept and act on the said offer. Besides above, the defendant No. 1 in his written statement further pleaded that he decided to permanently settle at Bhilai and to construct a house there after selling the suit property to any prospective buyer. It was stated that Dr. Sushil Kumar, husband of the plaintiff being eager to buy the house, expressed his desire to purchase the same by letter dated 6-3-1987. The defendant by his reply dated 10-3-87, intimated to Dr. Sushil Kumar that his brother-in-law who was at Bokaro Steel City has also expressed his desire to purchase the suit property for a sum of Rs. 3.75 lakhs, but as the defendant expected Rs. 4,00,000/- (rupees four lakhs), he had turned down the offer of his brother-in-law. It was further pleaded that defendant No. 2 also expressed his desire to purchase the suit property and wanted to know the price and in reply, the defendant intimated that he expected the price of Rs. 4,00,000/- for the suit property. In the meantime, through intervention of the friends, defendant No. 1 proposed on 7-4-1987 to sell the suit property to the plaintiff and her husband, subject to settlement of the price and modalities of the payment. Later on, it had been discussed and settled that the price should be fixed at Rs. 4,00,000/- out of which a sum of Rs. 1.5 lakhs would be paid in cash to the defendant No. 1 and the sum of Rs. 2.5 lakhs should be paid in instalments, and the deed of transfer would be written showing the price as Rs. 2.5 lakhs only. It is alleged by the defendant No. 1 that the manner and time of payment had been settled and written by the husband of the plaintiff Dr. Sushil Kumar in his own hand. The defendant further pleaded that while discussing the further details, the plaintiff's husband laid special stress on getting vacant possession of the house immediately as he had desire to start his independent practice from the said house. It was, therefore, decided that Dr. Sushil Kumar would pay Rs. 5,000/- as an advance before formal agreement is written and balance amount of Rs. 2,45,000/- (Rupees two lakhs and for- tyfive thousand) that would be written in the deed would be paid by instalments to the defendant No. 1; the first instalment would be paid soon after the vacant possession of the house is given to Dr. Sushil Kumar and the balance would be paid as per the agreed schedule as stated above. It was also decided that Dr. Sushil Kumar would be required to pay, besides the agreed price of Rs. 4 lakhs, a sum of Rs. 1.000/- per month during the period of the aforesaid month of the first instalment as monthly and last instalment. It was further decided that Dr. S. Kumar would deposit dues of the Society payable by the defendant No. 1 and it would be adjusted toward the agreed price. The defendant's further case was that in course of the aforesaid negotiation, agreement had been prepared on 27-4-1987, proposed to be executed by Dr. S. Kumar, his wife plaintiff and defendant No.l. The name of the plaintiff was introduced by Dr. Sushil Kumar as he intended to purchase the house jointly with her. The said agreement however, had not been executed by Dr. S. Kumar with a plea that he would take the agreement with him for further study and would thereafter execute the same. Dr. Sushil Kumar thereafter began to vacillate and wanted that the vacant possession of the house must be a condition precedent for the proposed purchase, otherwise, it would not be possible for him to purchase the house. Thus, the alleged agreement remained in the proposal stage and had never been executed by Dr. S. Kumar. The learned Court below framed the following is- sues:-

(3.) The Court below took up issue Nos. (viii) and (ix) which are important issue3 and decided it in favour of the plaintiff-respondent. The Court below found that Exhibit 3, the Agreement dated 27-4-1987, was a concluded contract between the parties whereby and whereunder defendant No. 1 appellant agreed to sell the suit property in favour of the plaintiff on the terms and conditions contained in the said Agreement. The Court below further came to a finding that the said Agreement by defendant No. 1 with the plaintiff is legal, valid, operative and enforceable and the said Agreement cannot be unilaterally cancelled by the defendant-appellant. The Court below further found that the plaintiff-respondent was always ready and willing to perform her part of the Agreement and it was defendant No.l who was defaulter in performing his part of obligations as per the Agree- ment. Accordingly the suit was decreed "by the impugned judgment.