ISHWAR LAL SON OF SHRI CHATTARLALJI MEHTA Vs. LEGAL HEIRS OF DECEASED BABU LALSON OF SHRI JYOTI PRASAD JI BIRIWASI

JUDGEMENT

(1.) This S.B. Civil Regular First Appeal has been filed under section 96 of the Code of Civil Procedure against the judgment and decree dated 21.03.2002 passed by the learned Additional District Judge, No.1, Udaipur in Civil Original Suit No.317/1995.

(2.) Briefly stated, the appellant-plaintiff filed a suit for specific performance of agreement, which was executed between the appellant-plaintiff and respondent-defendant on 05.01.1991 whereby the respondent-defendant agreed to sell his House No.36, Saheli Nagar, Udaipur for a sum of Rs. 8,50,000/- to the appellant-plaintiff. A sum of Rs. 7,50,000/- was adjusted against the loan which was advanced to the respondent-defendant and the remaining amount of Rs. 1,00,000/- was agreed to be paid to the respondent-defendant at the time of registration, which was to be got done within three months. According to the appellant-plaintiff, he was always ready and willing to perform his part of obligations but however, the respondent-defendant has failed to perform his part of obligations and also got extended the date of execution by agreement dated 30.05.1991 and it was further agreed between the parties that the respondent-defendant shall adjust the amount of interest on the paid up sale consideration of a sum of Rs. 7,50,000/- against the remaining sale consideration of Rs. 1,00,000/- to be paid the appellant-plaintiff at the time of registration. However, the respondent-defendant failed to perform his part of obligations under the aforesaid agreement and when the appellant-plaintiff came to know about the fact that the respondent-defendant is going to sell the suit house to somebody else, he got a notice published in the newspaper that the respondent-defendant had already entered into an agreement to sell the suit house for a sum of Rs. 8,50,000/- to the appellant-plaintiff and a sum of Rs. 7,50,000/-, which was advanced to the respondent-defendant, has already been adjusted against the sale consideration and it was decided that the remaining amount of sale consideration amounting to Rs. 1,00,000/- is to be paid by the appellant-plaintiff at the time of registration. The appellant-plaintiff was always ready and willing to perform his part of contract but the respondent-defendant has failed to perform his part of obligations. It was also contended that the interest on the paid-up sale consideration has accrued more than the amount of sale consideration already paid to the respondent-defendant. In the alternative it was also prayed that in case, the court does not think it proper to pass a decree for specific performance, decree for the recovery of a sum of Rs. 8,50,000/- with compensation may be passed against the respondent-defendant.

(3.) The respondent-defendant filed a detailed written statement denying loan taken from the appellant-plaintiff and further execution of the agreement to sell dated 05.01.1991.