- (1.) SUNIL Ambwani, J. These two second appeals arises out of Original Suit No. 166 of 1986, Ram Kishan v. Om Prakash, real brothers, for specific performance of agreement dated 28-3-1985, and Original Suit No. 409 of 1986, Om Prakash v. Ram Kishan, for arrears of rent and ejectment. The trial Court consolidated both the suits and by a common judgment and order dated 30-3-1989, O. S. No. 166 of 1986 was dismissed for relief of specific performance of contract. It was decreed for alternative relief of Rs. 10,000 with cost. The trial Court decreed O. S. No. 409 of 1986 for arrears of rent at Rs. 500 per month w. e. f. 11-7-1986 and for eviction. The trial Court declared that the firm shall stand dissolved w. e. f. 11-7- 1986 and issued a Commission to prepare the accounts of the assets and liabilities of the firm. The defendant-Ram Kishan was asked to submit the account within two months with liberty to Om Prakash to issue a commission on his own expenses. The suit was directed to be pending till the preparation of final decree.
(2.) RAM Kishan filed First Appeal No. 328 of 1989 against the judgment and decree dated 30-3-1989 in O. S. No. 166 of 1986 and Civil Appeal No. 104 of 1989 against the judgment and decree of the same date in O. S. No. 409 of 1986. The appellate Court by its judgment dated 15-12-2005 allowed the First Appeal No. 328 of 1989 and decreed O. S. No. 166 of 1986 for specific performance of agreement dated 28-3- 1985 directing Om Prakash to execute the sale-deed on receipt of Rs. 35,000 from RAM Kishan, failing which the sale-deed was to be executed through Court. The appellate Court partly allowed Civil Appeal No. 104 of 1989 and the decree for arrears of rent and eviction was set aside. However, the decree for accounting of the partnership firm was maintained with direction to RAM Kishan to produce all the accounts of the firm for the period 12-12-1976 to 10-7-1986 within one month. Brief facts giving rise to these two second appeals are, that Om Prakash had purchased the disputed shop by sale-deed dated 9- 7-1976. He entered into an agreement to sell the shop to real brother, the defendant Ram Kishan for Rs. 45,000 by an agreement dated 28-3-1985 and received Rs. 10,000 in advance. The agreement was registered. According to the terms of this agreement the sale-deed was to be executed before 27-3-1986. Om Prakash alleged that he is in possession of the shop in which he is running kirana business. In his suit Om Prakash alleged that he is always ready and willing to perform his part of contract and is still ready and willing for the same and requested Ram Kishan to execute the sale- deed. Ram Kishan tried to avoid the execution of the sale-deed, on which a notice dated 24-2-1986 was issued to him, which was received by him on 27-2- 1986, but that he did not reach to the office of Sub- Registrar, Anoop Sahar on 29-3-1986. Ram Kishan admitted that Om Prakash is the owner of the shop vide sale-deed dated 9-7-1976 and had constructed a two storied building in November and December, 1976. He, however, denied that he entered into any agreement and accepted Rs. 10,000 towards part sale consideration. In the written statement he stated that at the time of purchase the shop was in dilapidated condition. It was purchased for Rs. 24,000. He got the old constructions demolished and constructed a shop with three portions and staircase and also constructed first floor. The value of the shop reconstructed for doing business is about 2-1/2 lacs. At the time of construction of shop his children were minor and as such he started business in the shop in partnership with his real brother Ram Kishan. It was mutually agreed that rent of the shop will be Rs. 150 per month and since thereafter the plaintiff is in possession of the shop alongwith defendant and they were doing business, which was started with Rs. 5000 with partnership of 50% each. The partnership was registered in Sales Tax Department on 12-12-1976. Om Prakash had given securities in the Sales Tax Department and had executed an undertaking and affidavit that he will not transfer the business without permission of the sales tax officer.
(3.) OM Prakash further stated in his written statement in O. S. No. 409 of 1986, that he was busy in his commission agency business of vegetables and relied upon his brother for doing business in the shop. In the year 1985 when the goods and stock were inspected, he was told by Ram Kishan that he had made investment of Rs. 10,000 from his share. By way of mutual accounting OM Prakash was found to be due for Rs. 10,000 in business. He did not have the amount available with him and as such executed the registered agreement by way of security for payment of Rs. 10,000. They were informed by the scribe at Anoop Sahar that expenses of execution of mortgage deed will be more than the expenses for agreement. Ram Kishan was fully aware at the time of execution of the agreement that he was not willing to sell the house and that Rs. 10,000 were not paid as part sale consideration. In the circumstances, the agreement is not liable to be enforced. On his part Om Prakash filed O. S. No. 409 of 1986 for accounting of the firm and for payment of his share with 18% interest. He also prayed for decree for ejectment and arrears of rent from 11-7-1986 to 10-8-1986 at the rate of Rs. 800 per month.;