- (1.) Defendant Raj Kumar @ Ram Kumar having been unsuccessful in both the courts below has approached this Court by way of instant regular second appeal. Respondents-Plaintiffs Surinder Kumar Sood and his wife Shashi Bala Sood filed suit against defendant-appellant claiming specific performance of agreement to sell.
(2.) The plaintiffs alleged that the defendant agreed to sell the suit property to the plaintiffs for Rs. 7,00,000/- (Rupees seven lacs) and received Rs. 4,80,000/- (Rupees four lacs eighty thousand) as earnest money i.e. Rs. 3,80,500/- (Rupees three lacs eighty thousand five hundred) vide cheque dated 01.02.2003 and Rs. 99,500/- (Rupees ninety nine thousand five hundred) in cash and executed agreement dated 01.02.2003. Sale deed was agreed to be executed up to 05.08.2004. Date for execution of sale deed was extended to 14.10.2004. Accordingly the plaintiffs remained present in the office of Sub-Registrar on 14.10.2004 with requisite amount to get the sale deed executed in terms of the agreement but the defendant did not turn up and committed breach of the agreement although plaintiffs have always been ready and willing to perform their part of the contract. The plaintiffs also sent legal notice dated 18.11.2004 to the defendant who received it on 19.11.2004. Still he failed to execute the sale deed, necessitating the filing of the suit.
(3.) The defendant in his written statement broadly controverted the plaint averments. The defendant alleged that he never agreed to sell the suit shop to the plaintiffs. On the contrary, according to defendant, he agreed to mortgage the disputed shop with plaintiffs for Rs. 4,80,000/- (Rupees four lacs eighty thousand) as mortgage money out of which the defendant received Rs. 3,80,500/- (Rupees three lacs eighty thousand five hundred) by way of cheque whereas the balance mortgage amount of Rs. 99,500/- (Rupees ninety nine thousand five hundred) was to be received after few days. However, after few days, the defendant learnt that the plaintiffs had got executed impugned agreement to sell in connivance with witnesses and scribe, in place of mortgage deed. Various other pleas were also raised.;