BHALCHANDRA PANDURANG RAJANDEKAR Vs. MAHADEO LAXMINARAYAN SHRAOGI

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiff for specific performance of an agreement to sell a plot of land in Akola Civil Station measuring 200 feet by 180 feet. The agreement is dated 3-6-1936 and is Ex. P. 1. The rate agreed on was 4 annas a square foot, and as the site measured 36000 square feet, the price, although not stated, would come to Rs. 9000. It was also agreed that Rs. 4000 was to be paid by 11 O'clock on 5-6-1936 and this was done. The sale-deed, however, was never executed and each side blamed the other for the failure. Subsequently the defendant 1, Laxminarayan, sold the plot in separate lots to the other defendants who were impleaded and who had begun construction of their houses on the plot before the suit was brought. The plaintiff claimed specific performance of the agreement after payment by him of the balance of Rs. 5000, and in the alternative claimed that he should be paid damages to the extent of Rs. 9000, with interest at 8 annas per cent. per month or, failing that, that the sum of Rs. 4000 paid towards the consideration of the sale should be returned to him with interest at the same rate.

(2.) THE trial Court negatived the plaintiff's claim in all respects and held that it was he who broke the contract and further that time was of the essence of the contract and dismissed the plaintiff's suit. The plaintiff has appealed. The original defendant 1, Laxminarayan, is now dead and his son and his widow have been substituted in his place as respondents.

(3.) ON 5-6-1936 Ex. P-8 was executed and it was also drawn up by Mr. Deshpande who drew up Exs P.-1 and 1 D. 8 and is headed Isar-chithi, that is to say, earnest note. It runs as follows: Isar-chithi (earnest note) executed in favour of Bhalcbandra Pandurang Rajandekar, resident of Eajanda at present at Akola by Badridas Ramrai shop at Akola, proprietor Lakshminarayan Badridas Marwadi Agrawal, resident of Akola to the following effect: On 3-6-1936 a souda (contract) was made between you and me for selling to you my plot and an agreement note has been executed in respect thereof. In accordance therewith I have this day received four thousand rupees from you on account of earnest money. It is settled to take the remaining amount of five thousand rupees before the Registering Officer. In lieu of this amount, i.e. for a consideration of nine thousand rupees, it is agreed to sell to you the site, absolutely belonging to me situate in the north-west corner i.e. the entire site from the plot sold to Dr. Joglekar by me and situate in the corner of the road towards the bank and the main road (leading to the station) upto the fencing in front of my bungalow in the Civil Station at Akola, measuring 180 feet from south to north or if less whatever it may be found (after taking measurements) and 200 feet from east to west, thus making 36,000 square feet i.e. at the rate of four annas per square foot.