Dilip Gupta - (1.) -This second appeal has been filed by the defendant for setting aside the judgment and decree dated 6.9.1982 passed by the learned Additional District Judge, Budaun whereby the judgment and decree dated 7.11.1981 passed by the learned Civil Judge has been set aside and the defendant has been directed to execute the sale-deed in favour of the plaintiff on payment of Rs. 3,480 within a period of three months failing which the plaintiff would be at liberty to seek the assistance of the Court.
(2.) THE plaintiff had filed the suit for specific performance of the registered agreement of sale executed on 17.2.1979 on the allegation that the aforesaid agreement had been executed by the defendant in favour of the plaintiff for a consideration of Rs. 13,000 out of which Rs. 2,520 was initially paid and thereafter Rs. 7,000 was paid at the time of registration of the agreement to sell while the balance sale consideration of Rs. 3,480 was required to be paid at the time of registration of the sale-deed. It was also stated that the plaintiff has always been ready and willing and is still ready and willing to get the sale-deed executed after payment of Rs. 3,480 but the defendant avoided the same despite repeated demands by the plaintiff. THE plaintiff had, therefore, asked the defendant by registered notice to reach the office of the Sub-Registrar on 11.2.1980 and though the plaintiff remained present in the office of the Sub-Registrar on the said date from morning till evening but the defendant did not reach there. A written statement was filed by the defendant denying the execution of the agreement. His case was that he had borrowed a sum of Rs. 7,000 from Raja Ram, the husband of the plaintiff and Raja Ram took the defendant to the office of the Sub-Registrar, Budaun under the false pretext that some document had to be executed in respect of the said loan. It was further stated that the property in the suit was purchased by the defendant in auction sale for a sum of Rs. 20,000 and therefore, the defendant could not have agreed to sell the said shop for Rs. 13,000. The trial Court framed the following issues : "1. Whether the defendant had agreed to sell disputed shop alongwith land in suit to the plaintiff as alleged ? 2.Whether the defendant received 9520 towards the earnest money ? 3.Whether the plaintiff has always been ready and willing and is still ready to perform her part of contract ? 4.Whether the defendant executed the disputed agreement of sale dated 17.2.1979 ? 5.Whether this Court has no jurisdiction to try the suit ? 6.Whether any fraud was played by the plaintiff's husband on the defendant, in the execution of the agreement of sale in suit as alleged ? If so its effect ? 7.Plaintiff's relief ?"
(3.) ISSUE No. 5 was decided in favour of the plaintiff and against the defendant. ISSUE Nos. 1, 2, 4 and 6 were jointly decided by the trial Court. On the basis of the evidence on record both oral and documentary, the trial Court recorded the following findings in respect of the aforesaid issues : "Therefore, in view of the entire evidence on record, it is proved that the defendant executed the disputed agreement of sale dated 17.2.1979 in favour of the plaintiff and he received Rs. 9,520 from the plaintiff. It is also proved that no fraud was played by the plaintiff's husband on the defendant in execution of the agreement of sale. But it is not proved that the defendant had actually agreed to sell the disputed shop alongwith the land in suit to the plaintiff. It appears that he had actually executed the agreement of sale in favour of the plaintiff as security to the alleged money, borrowed by him from the plaintiff. All the issues are, therefore, decided accordingly." In respect of issue No. 3 the trial court recorded a finding that it was proved by the documentary as well as oral evidence on record that the plaintiff had always been ready and willing to perform her part of the contract. While deciding issue No. 7 the trial court found that the plaintiff was not entitled to get the relief of specific performance but she was entitled to get the alternative relief of recovery of Rs. 9,520 alongwith interest from the date of execution of the agreement to sell. The suit was accordingly decreed for recovery of Rs. 9,520 with interest at the rate of 6% per annum from 17.2.1979 upto the date of recovery.;