NARENDRA KUMARI Vs. SHANTA KOTHARI

JUDGEMENT

(1.) The defendant-appellants have preferred this civil first appeal under Section 96 read with Order 41 Rule 1 CPC against the judgment and decree dated 24.04.1993 passed by the Additional District Judge No.4, Jaipur City, Jaipur in Civil Regular Suit No.157/1985 whereby the learned trial Court decreed the suit filed by the respondent-plaintiff for specific performance of the agreement to sell and it was directed to the appellants to execute the sale-deed in favour of the respondent within a period of two months. It was further directed that if the appellants fail to comply the order the respondent would be entitled to get the sale-deed executed in her favour through Court.

(2.) Brief relevant facts for the disposal of this appeal are that the plaintiff-respondent filed a suit against the defendant-appellants on 14.8.1985 with the averment that the appellants floated a housing scheme in the name of "Shivrani Apartments" to allot plots and to construct flats upon them and they agreed to sell constructed Flat No.1 to the respondent in lieu of sale consideration of Rs.3,25,000/- on 24.8.1982 and issued a receipt after obtaining Rs.1,25,000/- as advance. It was further averred that the appellants could not carry out their housing scheme and, therefore, a further agreement was executed between the parties on 1.9.1983 and the appellants undertook to refund the advance amount of Rs.1,25,000/- with interest at the rate of 18% per annum from 24.8.1982. It was also undertaken by the appellants that if they fail to refund the aforesaid amount with interest, the respondent would be entitled to obtain the Flat No.1 in lieu of aforesaid amount of Rs.1,25,000/- through Court. It was further averred that despite oral request several times and written notice the appellants failed to execute sale-deed in respect of the flat in favour of the plaintiff-respondent. It was prayed that the respondent is entitled to get decree for specific performance of the contract in her favour and if by any reason the Court finds it unable to pass decree for specific performance, she is entitled decree for Rs.1,91,875/- alongwith the interest and the costs.

(3.) In the written statement almost all the averments of the plaint were denied and it was specifically averred that on 24.8.1982, the respondent was not in India as she was residing in Switzerland. It was further averred that the alleged agreement and receipt are forged. It was further averred that it has not been explained by the respondent that when she is a foreign citizen why the sale consideration was paid neither through Demand Draft or cheque. It was objected that without the permission of Central Government, the respondent was not entitled to purchase immovable property in India.