TRIBIKRAM SINGH Vs. MOST. GARIBALA DEBI

JUDGEMENT

(1.) The instant First Appeal has been directed against the Judgment dtd. 4/9/2018 and decree dtd. 18/9/2018 whereby the suit of plaintiff for the specific performance has been dismissed and allowed the alternate relief for refund of the earnest money along with interest.

(2.) The brief facts leading to this First Appeal are that the plaintiff had instituted a suit with these averments that the plaintiff is the permanent resident of Seraikella town having his house and other landed properties, and the landed property situated in mouza Kudarsai, Thana No. 302, Khata No. 18 belonged to and stood recorded in the name of late Kalipada Daroga who was the father of principal defendant No.1 and after his death the property was amicably divided between the principal defendant no.1 and his brothers in which the lands described in the schedule of the plaint fell in share of the principal defendant which is situated in the jurisdiction of this Court. The principal defendant proposed to sell the suit land to plaintiff in consideration of Rs.30,60,000.00 to which plaintiff agreed and consequently an agreement to sale was executed between plaintiff and defendant No.1 on 21/1/2012 and it was also notarized in presence of proforma defendant No. 2 and 3. Initially Rs.2,00,000.00 was paid as advance in cash and cheque duly acknowledged and agreed between the parties that the plaintiff will pay the balance amount Rs.28,60,000.00 as per convenience before registration of the sale-deed to defendant No.1. According to the terms of the agreement Rs.4,00,000.00 were also further paid. Out of which 1,00,000/- was paid through cheque No. 913770 and Rs.3,00,000.00 were paid in cash to the principal defendant on 30/4/2012 in presence of proforma defendant No.2 and 3 and other witnesses. The receipt of the same was also given to the plaintiff acknowledging the payment. Hence the balance amount of Rs.24,60,000.00 was to be paid by the plaintiff at the time of execution and registration of sale-deed. During the pendency of the suit defendant No.1 Sudhena @ Sano Darogha died and after his death his legal heirs 1(a) to 1(d) were substituted.

(3.) On behalf of defendant the written statement filed on the ground that the suit of the plaintiff was not maintainable as the same was barred by the provision of Sec. 34 of the Specific Relief Act. Suit is also barred by the provision of waiver, estoppel and acquiescence. The plaint was not properly verified as per provisions of Order 6 Rule 15 of C.P.C. When the plaintiff came to know that the defendant No.1 is willing to sell out the land then he approached the responding defendant No.1 and proposed him to sell the land. Upon the proposal and request defendant No.1 was ready to sell the same to plaintiff and the agreement to sale was also executed. However, the agreement to sale was also notarized. The suit is also bad on account of mis-joinder of parties as defendant No.2 and 3 have been arrayed in the suit. The plaintiff has not come before the Court with the clean hands so he is not entitled to the relief claimed. The plaintiff was never ready and willing to perform his part of agreement to sale. The responding defendant was in urgent need of money so he had given notice to execute the sale-deed in his favour but the plaintiff did not do so. As such he violated the terms and conditions of the agreement to sale and there was no way out for the defendant to sell out the same land to any other person. It is the plaintiff who has violated the terms and conditions of agreement to sale who has replied the notice issued on behalf of the responding defendant in wrong way. As per terms of the agreement to sale the balance amount of the full consideration amount has to be paid as convenience of defendant No.1 who has already requested the plaintiff to pay the full consideration amount to him and get the sale-deed registered within ten days from the receipt of the notice. Hence had shown his willingness to register the sale-deed in favour of the plaintiff but the plaintiff failed to do so.