GYANCHAND Vs. DAULATRAM

JUDGEMENT

(1.) THIS is a defendants' appeal against the judgment and decree of the Additional District Judge, Alwar dated 31st of August, 1973, decreeing the suit of the plaintiff for specific performance.

(2.) PLAINTIFF Daulatram filed a suit making an averment that he entered into an agreement with the defendants Gyanchand and Padamchand to purchase a shop belonging to the defendants for an amount of Rs. 7,000/- and against this price he paid Rs. 1,300/- to the defendants on the same day and a further sum of Rs. 500/- was paid after some time. The grievance of the plaintiff was that the defendants did not execute the sale deed and hand over the possession of the disputed shop to the plaintiff. Notices were exchanged between the parties. The defendants in a reply to one of the notices alleged that the price fixed was not Rs. 7,000/- but Rs. 11,500/- and that it was so agreed between the parties that within a period of one month the plaintiff shall pay to the defendants the balance of the price and get the sale deed registered, but the plaintiff failed to discharge his obligation under the agreement and therefore he forfeited the amount of Rs. 1,300/- which was terned as an earnest money by the defendants and that after the period of one month the plaintiff was not entitled to claim the specific performance. The defendants also denied to have received the amount of Rs. 500/- from the plaintiff. The plaintiff after receiving the said notice was left with no alternative but to file a suit alleging the aforementioned facts and prayed that a decree for the specific performance of the contract be awarded in favour of the plaintiff and that if the court arrives at a finding that the sale price was fixed at Rs. 11,500/- the plaintiff would pay the balance of the sale price after deducting Rs. 1,800/ -. A decree for Rs. 200/- as damages was also sought by the plaintiff and it was also prayed that in case the decree for specific performance is not granted, the defendants may be asked to refund Rs. 1,800/- with interest at the rate of 12% to the plaintiff.

(3.) LEARNED counsel appearing on behalf of the appellants argued that in the face of the finding given by the court below that the price of the shop was fixed at Rs. 11,500/- a decree for the specific performance of the contract could not be passed against the defendants as the plaintiff, who was all through claiming the price at Rs 7,000/- cannot be said to have been ready and willing to discharge his obligation under the contract of sale because he never offered to the defendants the real balance of sale price which was Rs. 10,200/ -. Mr. Hastimal, appearing on behalf of the plaintiff respondent, on the other hand, contended that the plaintiff in his amended plaint had specifically averred that in case the sale price is found to be. Rs. 11,500/-he was prepared to pay the balance calculated on the basis of the said price and therefore in the circumstances of this case it should be held that the plaintiff was ready and willing to discharge his obligation under the agreement of sale.