MRS. SUSHILA DEVI SINGH Vs. MRS. MONIA SHEEL, DAUGHER OF DR. RAJESHWAWR PRASAD TONDON AND WIFE OF MR. VIVEK SHEEL

JUDGEMENT

(1.) The instant appeal has been preferred against the judgment dated 11.07.2003 and decree dated 24.07.2003 passed by Shri Bashisth Shukla, the then Subordinate Judge X, Patna in Title Suit No. 80 of 1996 whereby and whereunder the Suit was dismissed on contest but without cost and the defendant was directed to return the earnest money of Rs. 30,000/- together with compoundable interest at the rate of 8 % per annum to the plaintiff within one month, failing which the plaintiff shall be entitled to recover the same through the process of the Court. The plaintiff is the appellant and the defendants are the respondents 1 to 5. During pendency of this appeal, the respondent no. 1 died and his name has been expunged, further during pendency of the appeal, the respondent no. 1 sold the suit property to Gangeshwari Devi and then Gangeshwari Devi has been added as respondent no. 6.

(2.) The plaintiff filed the aforesaid Title Suit for a decree of specific performance of contract on the basis of an agreement for sale dated 04.03.1993 executed by Dr. Rajeswhar Prasad Tondon for and on behalf of his four daughters on the basis of power of attorney. The plaintiff has sought relief for a decree of specific performance of contract in respect of the suit property as described in Schedule 1 of the plaint in favour of the plaintiff and against the defendants, directing the defendants to jointly perform the part of their statutory obligation after receiving the remaining amount of consideration i.e. Rs. 21,70,000/- from the plaintiff within the time as fixed by the court, failing which the sale deed be executed in favour of the plaintiff through the process of the court and the plaintiff be put in possession of the suit premises.

(3.) As per the case of the plaintiff, the plaintiff entered into an agreement for sale of the suit property on 04.03.1993 with the defendant no. 1 in respect of the Schedule 1 property as the defendants no. 2 to 5 had given a power of attorney to defendant no. 1. The defendant no. 1 had purchased a piece of land having an area of 7.35 Kattha from Patliputra Co-operative House Construction Society Ltd. Patna through registered deed of sale dated 09.01.1970 out of his personal funds and constructed double storied house over the same. The defendant no. 1 gifted the said entire property in 4 parts through 4 registered deed of gift in the year 1983 and handed over the possession to the donees. The said flats were in occupation of the tenants namely, Dr. Vijay singh, Sri K. K. Verma, Mr. K. Prabhakar and Mr. D. K. Mishra one flat each. The defendant no. 1 executed an agreement for sale on 04.03.1993 in favour of the plaintiff with respect to the suit property for a total consideration of Rs. 22,00,000/- and received Rs. 30,000/- as an earnest money. The terms and condition of the said agreement for sale, as agreed in between the parties, were incorporated in the deed. One of the term was that the defendants will get the flats of the building in question vacated and cleared from the occupation of the tenants by the end of June, 1993 or earlier, however, it was added that the plaintiff shall have no objection to purchase the property in case the defendant no. 1 inspite of his best efforts did not evict Dr. Vijay Singh, one of the tenant, by June, as against him Eviction Case No. 14 of 1987 was going on and the plaintiff by way of purchaser shall take over the case and continue all the legal remedies to evict Dr. Vijay Singh. As per deed, in the event of clear and vacant possession was not granted by June 1993, the plaintiff shall have the sole discretion to extend any time or demand full refund of his entire earnest money but in any case defendant No. 1 was required to evict the rest three tenants. The plaintiff remained always ready and willing to purchase the said property by making payment of remaining consideration amount and to get the sale-deed executed and for that the plaintiff approached the defendants through representative several times and also got the notices sent through the Lawyer. The defendant no. 1 gave reply to the notice dated 06.09.1993 through his advocate, having mala-fide intention, alleging that the agreement was executed under duress and the plaintiff would not arrange the money to get the sale-deed executed and registered and as such the defendant no. 1 is not obliged to execute the sale-deed and the defendant no. 1 sent bank draft of Rs. 30 thousand with the said reply notice and wanted to retract from the said agreement for sale. The defendant no. 1 having full knowledge that the plaintiff resides at USA, he sent the reply notice to the plaintiff's advocate. The plaintiff came to India in February 1995, and, then she became acquainted and subsequently she sent a notice on 26.04.1995 stating that she in exercise of her option is extending time of the agreement because the defendants have failed to get the tenants evicted within stipulated time and she expressed her willingness and readiness to get the sale-deed executed and bank draft of Rs. 30,000/-she sent back to the defendant no. 1. As per the agreement, time is not the essences of the contract, the defendant no. 1 asked the plaintiff to pay higher price of consideration for which the plaintiff was not ready, the defendant no. 1 was looking for another purchaser in contravention of the terms as agreed between the parties which necessitated the plaintiff to file the suit.