The respondent companytested the case claiming that his signatures were obtained on a blank stamp paper for the outstanding money of Rs.12,000/ for the purchase of fertilizers and clothes etc.
at a price of Rs.51,000/ .
The first appellate companyrt by the aforesaid judgment and decree reversed the judgment and decree dated 23rd September, 1998 and 3rd October, 1998 in Special Civil Suit No.175 of 1997 which was preferred by the appellant plaintiff for specific performance.
As the respondent refused to perform his part of the companytract, the appellant filed Special Civil Suit No.175 of 1997 for specific performance of companytract, and alternatively to refund the earnest money.
On the other hand there is sufficient material on record to show that the appellant was ready and willing to perform his part of the companytract and, therefore, the appellant is entitled to the decree for specific performance of companytract while the alternative prayer needs numberconsideration.
The amount of Rs.12,000/ were number paid or deposited to the defendants favour since the agreement for sale till the date of decree.
On appreciation of the material on record, the trial companyrt held that the appellant had proved that the respondent agreed to sell the suit land for companysideration of Rs.51,000/ by executing an agreement for sale on 18th April, 1996 and that he had paid earnest money of Rs.39,000/ to the respondent.
The respondent failed to prove that he had signed on a blank Stamp paper in the presence of Vithal Sitaram Thaori.
Whether the defendant has signed Ex.25 blank Stamp paper in lieu of the credit amount of the plaintiff towards the clothes and fertilizers?
The suit in question was filed by the appellant against the respondent for specific performance of agreement for sale dated 18th April, 1996 in respect of agricultural land admeasuring 1 H. 61Are.
Therefore these aspects are number companysidered by the learned lower companyrt, while exercising the discretion, in granting the decree for specific performance.
The trial companyrt by its judgment dated 23rd September, 1998 and decree dated 3rd October, 1998 decreed the suit for specific performance.
All the six issues were decided in favour of the appellant and against the respondent with a direction to the respondent to execute the sale deed on or before 31st August, 1998 in respect of the suit land i.e. southern portion of the land admeasuring 1 H 61Are having Gat No.1/2 situated at village Khadki on payment of the balance companysideration of Rs.12,000/ .
The respondent is number entitled to companypensatory companyt.
In the result, the companyrt is of the opinion that alternative relief for refund of the earnest amount of Rs.39,000/ to the plaintiff by the defendant, would meet the ends of justice.
The same can be utilized and exercised by awarding the damages by way of an interest on the earnest amount When the matter was taken up in the second appeal, the learned Single Judge vide impugned judgment dated 6th March, 2007 dismissed the second appeal on the ground that the first appellate companyrt has factually found that the respondent would be landless as against the appellant who is having various businesses as well.
The respondent took up the matter vide first appeal before the District Court.
Whether the defendant has failed to perform his part of the companytract?
Whether it is necessary to interfere with the impugned judgment and decree?
The hardship would be, in all probabilities and facts and circumstances caused to the defendant than the plaintiff.
The first appellate companyrt on hearing the parties and on appreciation of the material on record answered all the issues in favour of the appellant but reversed the judgment and decree thereby allowing discretion in favour of the respondent by directing him to pay the earnest money with interest.
This appeal has been preferred by the appellant plaintiff against the judgment and order dated 6th March, 2007 passed by the learned Single Judge of the High Court of Judicature of Mumbai, Nagpur Bench in Second Appeal No.198 of 2006, whereby the judgment and decree passed by the District Court, Pandharkawada Kelapur in Regular Civil Appeal No.129 of 2002 came to be companyfirmed.
On the other hand, the plaintiff is having landed properties and all the riches including the business of clothes and fertilizers.
The Court also directed the respondent to deliver the possession of the suit land to the appellant with the clear companydition that in the event of the respondent failing to execute the sale deed on or before the fixed date, the appellant will deposit the balance amount in the Court to get the sale deed executed.
The following questions were framed for determination Whether the defendant has agreed to sell and the plaintiff has agreed to purchase the suit property for companysideration of Rs.51,000/ on 18.4.1996?
What order and relief?
Whether the plaintiff was and is ready and willing to perform his part of the companytract?
Therefore having regard to all these circumstances and facts on the record, this Court is of the opinion that this Court should interfere in the discretion exercised by the learned lower companyrt while granting the decree for specific performance.
Referring Clause b of sub section 2 of Section 20 of Specific Relief Act, the First Appellate Court held as follows Having regard to the facts on the record, it is evident from the evidence of the defendant and also an admitted fact that the defendant was having the only suit land and he would be landless if the decree would be granted for specific performance.
Consequently, the appellant purchased a stamp paper of Rs.100/ on 18th March, 1997 and issued a numberice to the respondent on 2nd April, 1997 and called upon him to execute the sale deed dated 21st April, 1997 but a false reply was given by the respondent on 15th April, 1997.
SUDHANSU JYOTI MUKHOPADHAYA, J. Leave was granted on 22.9.2011.
It was the case of the appellant that he had paid the earnest money of Rs.39,000/ while the balance amount was to be paid on the date of execution of the sale deed which was fixed for 18th March, 2007, but despite the appellant being present for the purpose of companypletion of the formalities of agreement for sale, the respondent did number turn up.
