HARIRAI SINGHANI Vs. SHRI HARI RAM CHANDNANI

JUDGEMENT

(1.) THIS civil first appeal under Sec. 96 CPC has been filed against the judgment and decree dt. 16.09.1995, passed by the Additional District Judge No. 1, Ajmer decreeing the respondents -plaintiff's (hereinafter 'the plaintiff ') suit for specific performance. The facts of the case are that the plaintiff filed a suit in the Court of District Judge, Ajmer on 08.09.1986. Subsequently the suit was transferred to the Court of Additional District Judge No. 1, Ajmer. In the suit it was stated that the plaintiff had entered into an agreement to sell with the defendant -appellant (hereinafter the defendant') on 30.06.1983 pertaining to house No. 1 -Kh -9, admeasuring 40' X 60' situate in Vaishali Nagar, Ajmer for a sum of Rs. 85,000/ -. It was stated that the defendant executed an agreement in favour of the plaintiff on the said date. A sum of Rs. 15,000/ - was paid by the plaintiff to the defendant through cheque on 01.07.1983 and Rs. 10,000/ - in cash on the same date. Thereafter, the plaintiff alleged that he had paid further sum of Rs. 25,000/ - to the defendant on 01.10.1983 through two cheques consequent to which the total payment to the defendant under the agreement to sell dt. 30.06.1983 aggregated to Rs. 50,000/ -. It was stated that the defendant as allottee of the Rajasthan Housing Board (hereinafter 'RHB') in respect of the suit property had agreed to get a clearance certificate and permission from the RHB for transferring the said house after making of payment due and outstanding amount to the RHB against the defendant. It was stated that under the agreement in issue a sale/transfer -deed as well as perpetual lease -deed in favour of the plaintiff was to be executed on or before 30.12.1983 and also registered with the jurisdictional Sub -Registrar. The further case of the plaintiff was that he requested the defendant a number of times to discharge his obligations under the agreement to sell dt. 30.06.1983 and obtain the requisite clearance certificate from the RHB by making the payment of amount due to them and then execute a registered sale -deed qua the suit property in favour of the plaintiff, but to no avail. It was stated that the plaintiff had been at all times and was still at all time of the filing of the suit and thereafter ready and willing to perform his obligations under the agreement to sell dt. 30.06.1983. The plaintiff stated that in the circumstances obtaining, he served a registered notice dt. 13.03.1985 on the defendant requiring him to perform his part of the contract for sale dt. 30.06.1983 and also inform him as he was always eager and ready and willing to perform his part of the contract. It was stated that even the notice did not elicit any response from the defendant. Reiterating that the plaintiff was ready and willing to even deposit the amount due to the RHB by the defendant with the right of adjustment thereof against the balance consideration due and payable under the agreement to sell dt. 30.06.1983 to the plaintiff it was prayed that the suit as laid for specific performance in terms of the agreement to sell dt. 30.06.1983 be decreed in favour of the plaintiff.

(2.) ON service of notice of the suit, the defendant filed a written statement of absolute denial. It was stated that the defendant had never entered into any agreement to sell with the plaintiff, nor signed any deed in regard thereto on 30.06.1983 or the receipted Rs. 50,000/ - or any amount at all from the plaintiff thereunder. Stating that the entire suit as laid was based on gross falsities, without merit and outcome of a conspiracy, it was prayed that the suit be dismissed.

(3.) THE plaintiff, in support of his case, examined four witnesses and relied upon 11 documents, exhibited before the trial Court. The defendant, in defence, relied on the evidence of his Power of Attorney, one Kartar Raisinghani, his brother (through whom he had in fact been impleaded in the suit) in view of the fact that the defendant did not reside in Ajmer, but was a resident of USA. On consideration of the evidence before it, the learned trial Court decided all the issues in favour of the plaintiff and decreed the suit.