RAKESH KUMAR GARG, J. - (1.) THIS is plaintiff's second appeal challenging the judgment and decree of the lower Appellate Court dated 30.3.2013 whereby while accepting the appeal of the defendant -respondents against the judgment and decree of the trial Court dated 4.8.2011, the suit of the appellant for specific performance of the agreement in question has been dismissed.
(2.) AS per the averments made in the plaint, the defendant - respondents were the owners in possession of the land in dispute by virtue of sale deeds dated 24.6.1997 and 27.6.1997. Vide agreement to sell dated 28.11.2005, the defendant -respondents agreed to sell the suit land for a total sale consideration of Rs.6 lacs in favour of the appellant and received an amount of Rs.50,000/ - as earnest money at the time of execution of the agreement dated 28.11.2005. The remaining sale consideration was to be paid at the time of execution and registration of the sale deed by the plaintiff. The last date of execution and registration of the sale deed was fixed as 15.2.2006. As per the agreement, the suit land was free from all encumbrances and it was agreed that the defendant -respondents will get the mutations of the aforesaid sale deed entered and sanctioned prior to the last date stipulated for execution and registration of the sale deed. It is the further case of the appellant that he was always ready and willing to perform his part of the contract. On 15.2.2006, he tendered the balance sale consideration to the defendants and demanded transfer of the property in question by execution of the sale deed but the defendants showed their inability to perform their part of the contract on the pretext that the mutation is yet to be entered and sanctioned in their name and they further assured the plaintiff that as and when the mutation of their sale deeds will be entered and sanctioned, they shall perform their part of the contract by executing sale deed in his favour, but out of greed, the defendants dishonestly refused to get the mutation sanctioned and refused to execute the sale deed in favour of the plaintiff. Hence, the suit. Upon notice, the defendant -respondents contested the suit by filing written statement. Execution of the agreement in question was admitted. However, it was submitted that the plaintiff -appellant had failed to perform his part of contract and was never ready and willing to perform his part of the contract, as he had no sale consideration and expenses of the stamp and registration etc. It was the further pleaded case of the defendant - respondents that the plaintiff -appellant was a property dealer and was in search of a prospective buyer of the land in question, for which he failed, and was not having sufficient funds with him and thus, failed to make the payment of the sale consideration. He never came forward to perform his part of the contract and failed to make the payment of balance sale consideration within stipulated period i.e. on or before 15.2.2006 and thus, the amount of Rs.50,000/ - paid as earnest money stood forfeited and the agreement in question stood cancelled automatically. There was no privity of contract between the parties after 15.2.2006 and the suit filed by the plaintiff -appellant was liable to be dismissed. On the basis of pleadings of the parties, following issues were framed: - "1. Whether the defendants entered into an agreement to sell dated 28.11.2005 with the plaintiff in respect of the suit land detailed in para No.1 of the plaint for a sale consideration of Rs.6,00,000/ - and received Rs.50,000/ - from the plaintiff as earnest money? OPP. 2. Whether the plaintiff has been ready and willing to perform his part of contract? OPP. 3. Whether the plaintiff is entitled to the relief of specific performance and injunction as prayed for? OPP. 4. Whether the plaintiff has no locus -standi and cause of action to file the present suit? OPD. 5. Whether the plaint is liable to be rejected under Order 7 Rule 11 of C.P.C.? OPD. 6. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD. 7. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD. 8. Whether the plaintiff has concealed the true and material facts from the court? OPD. 9. Relief -
(3.) AFTER hearing learned counsel for the parties, the trial Court under issue no.1 held that execution of the agreement in question is not in dispute. Under issues no.2 and 3, it was held that the plaintiff was ready and willing to perform his part of contract and therefore, he was entitled to the relief of specific performance of contract and further entitled to the relief of injunction against the respondents for not alienating the suit property to anyone except the plaintiff. Under issues no.4 to 8, it was held that the plaintiff had every cause of action and locus standi to file the present suit and the same is not liable to be dismissed under Order 7 Rule 11 CPC. The plaint has been properly valued for the purposes of Court fee and jurisdiction and the plaintiff cannot be estopped from filing the suit by his own act and conduct. Finally, a decree for possession by way of specific performance was passed in favour of the plaintiff.;