BALDEV RAJ CHOPRA Vs. RAKESH KUMAR

JUDGEMENT

(1.) APPELLANT -defendant has laid this first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC') for assailing the impugned judgment and decree dated 05.10.1987 passed by the learned Addl. District Judge No. 2, Sri Ganganagar (for short, 'learned trial Court'). The learned trial Court on adjudication of the suit filed by respondent -plaintiff has passed a decree for specific performance of contract in his favour and against the appellant.

(2.) THE factual matrix, as depicted in the plaint, is that the respondent -plaintiff instituted a civil suit against the appellant -defendant for specific performance of contract, inter -alia, on the ground that the appellant defendant executed an agreement to sale in respect of his House No. 130, 'E' Block, Sri Ganganagar, measuring 32 x 50 ft, for a consideration amount of Rs. 40,000/ -. As per description in the plaint, the house in question is having six rooms and latrine etc, and the agreement to sale was executed on 21st of December 1981. The respondent plaintiff also averred in the plaint that at the time of agreement to sale, security amount/earnest money of Rs. 10,000/ - was paid to the appellant on the same day and in lieu thereof the appellant handed over possession of one room and kitchen to the respondent. Subsequently, the appellant -defendant again approached the respondent on 11th November 1982 and received a sum of Rs. 5,000/ - against the consideration amount, and an endorsement to this effect was made by him overleaf the agreement to sale. Thus, according to the respondent -plaintiff, by 11th November 1982, out of total consideration amount of Rs. 40,000/ -, a sum of Rs. 15,000 was paid by him to the appellant -defendant, and therefore, the outstanding consideration amount remained confined to Rs. 25,000/ - only. The factual antecedents in the plaint further reveal that as per agreement to sale, the appellant -defendant was under an obligation to execute a registered sale deed within a year from the date of execution of agreement to sale however the said duration was extended by him upto 19th February 1983 but even after expiry of the said date the appellant failed to fulfill his promise and no steps were taken by him to perform his part of the contract by execution of registered sale deed for the house in question. Plaintiff -respondent also averred in the plaint that as per terms of the agreement, entire expenditure for registration was required to be paid by the respondent -plaintiff, therefore, in order to show his readiness and willingness to perform his part of the contract, the plaintiff -respondent sent a registered notice to the appellant on 27th January 1983 calling upon the appellant to execute registered sale deed in his favour. In the notice, the respondent has also stated that he is prepared to pay the remaining consideration amount of Rs. 25,000/ - as well as the requisite expenditure for registration charges. However, as per the version of the respondent -plaintiff in the plaint, the appellant refused to accept the said notice and as such the said registered envelope returned back undelivered. For persisting his readiness and willingness to perform his part of contract, the respondent -plaintiff thereafter sent a telegram to the appellant on 16th of February 1983 which was received by the appellant. With all these averments, the respondent -plaintiff has asserted in the plaint that he was always ready and willing to perform his part of contract but the appellant -defendant has not acceded to his request and failed to perform his part of contract in terms of the agreement. In order to show his bona fides, the respondent -plaintiff has also stated in the plaint that on the appointed day i.e. on 19th February 1983, he visited the office of Sub Registrar (Registration), Sri Ganganagar and presented an application on 19th February 1983 in his office, thereby he conveyed the Sub Registrar that he is prepared to pay the remaining consideration amount as well as the registration charges. However, on 19th February 1983 appellant did not turn up for performing his part of the contract and therefore the sincere efforts made by the respondent -plaintiff remained futile. Highlighting the conduct of the appellant, the respondent -plaintiff has also averred in the plaint that he received a communication from the appellant whereby a request was made at his behest to extend the period of registration upto 19th of April 1983. Relying on the said communication, the respondent plaintiff waited upto 19th April 1983 but uptil 19th April 1983 the appellant has not performed his part of the contract. While castigating the appellant for his reluctance to perform his part of the contract, the respondent -plaintiff has made a specific plea in the plaint that the appellant has resiled from his promise in view of escalation in the market rate of the property in question. According to respondent -plaintiff, the appellant was under an obligation to perform his part of the contract, and therefore, by not adhering to the terms of the contract, he has violated the terms of the agreement to sale, which is ex -face dehors the law. Emphasizing the conduct of the appellant, the respondent -plaintiff has averred in the plaint that due to omissions and commissions of the appellant, cause of action accrued to him on 19th February 1983 and on 19th April 1983. On the strength of these pleadings, the respondent -plaintiff has prayed for granting him decree for specific performance of contract.

(3.) ON the basis of pleadings of the rival parties, the learned trial Court settled following issues for determination: