AJAY KUMAR MITTAL, J. - (1.) THIS Regular Second appeal filed by the appellant defendant (hereinafter referred to as "defendant") is directed against the judgment and decree dated 14.3.2005 passed by the District Judge, Ludhiana whereby the appeal preferred against the judgment and decree dated 20.12.2001 passed by Civil Judge (Junior Division) Ludhiana decreeing the suit of the respondent-plaintiff (hereinafter referred to as "plaintiff") for possession by specific performance, has been dismissed.
(2.) SUCCINCTLY stated, the plaintiff filed a suit for decree of possession by specific performance of plot No. 68-D, measuring 250 square yards situated in Bhai Randhir Singh Nagar, Ludhiana shown in red colour in the site plan attached with the plaint and undisputedly, owned and possessed by the defendant. It was averred in plaint that the defendant with a view to sell the said plot to the plaintiff entered into an agreement for its sale/transfer in his favour for a consideration of Rs. Five lacs. A sum of Rs. One Lac was paid to the defendant as advance by the plaintiff. A written agreement containing all terms and conditions was executed between the parties, which was signed on 8.9.1993. It was stipulated in the agreement that the balance amount of Rs. Four Lacs will be paid by 1.12.1993 and all formalities and documents for effective transfer/sale shall be executed and the possession of the plot delivered at the time of payment of the balance amount. It was also agreed that all expenses in that regard will be borne by the plaintiff whereas the defendant shouldered the responsibility of completion of the documents. It was further averred that the deal to sell the plot was struck through the office of M/s. Vikas House Building Company Private Limited, Ludhiana and the plaintiff was willing to perform his part of contract and ready with money. The plaintiff contacted the defendant at Chandigarh on 25.11.1993 and also requested him to do the needful. But the defendant wanted more time and consequently the time limit as mentioned in the agreement dated 8.9.1993 was extended to 4.12.1993 in regard to which an endorsement was also made on the second page of the agreement which was signed by the parties and the witness. It was also averred that the plaintiff in performance of his part of contract got prepared two bank drafts i.e. one in the sum of Rs. Three Lacs and the other of Rs. One lac to show his bona fide in that regard. The plaintiff also issued registered notice as well as notice under Postal Certificate to the defendant informing him that the remaining amount of sale consideration was ready with him and also requested the defendant to reach the office of M/s. Vikas House Building Company at 10 AM on 2.12.1993 so that remaining formalities were completed and documents executed. Since the defendant still failed to perform his part of the contract, the plaintiff issued registered notices to the defendant calling upon him to do the needful as agreed vide agreement to sell and, even contacted the defendant on 5.12.1993 and also tendered a sum of Rs. Four lacs to him, but he refused to perform his part of the contract. This led to the filing of the suit for decree of possession by specific performance. The defendant contested the suit by filing written statement. In the preliminary objections raised in the written statement, it was stated that the agreement relied upon by the plaintiff was invalid and void. The date for execution of the sale deed was neither settled nor stipulated in the alleged agreement as the father of the plaintiff told that a fresh agreement will be executed after consulting his son i.e. the present plaintiff as he himself was not authorized to settle all the terms and conditions. Since the alleged agreement was signed by the father of the plaintiff at Chandigarh, the civil court at Ludhiana had no jurisdiction. On merits, however, the defendant admitted having received a sum of Rs. One lac from the father of the plaintiff. It was stated to be incorrect and false that the remaining amount of Rs. Four lacs was to be paid by the plaintiff to the defendant as per the alleged agreement. In fact, as per the said agreement, a sum of Rs. Three lacs and fifty thousand was to be paid by the plaintiff to the defendant by 1.12.1993 and the remaining amount of Rs. 50,000/- was to be paid when the formalities like obtaining No Objection Certificate and sanctioning of house plan were completed. It was specifically stated that the plaintiff never paid Rs. 3.50 lacs as stipulated. The defendant was always ready and willing to execute the sale deed and no other formalities, as alleged by the plaintiff, remained to be completed or complied with. It was also stated that question of delivery of possession of the plot in dispute did not arise as the plaintiff had failed to comply with the commitment regarding payment of the balance amount. It was further specifically denied that the plaintiff was ready and willing to perform his part of the contract and was also guilty of breach of the agreement and the amount of Rs. One lac paid by the plaintiff stood forfeited on the date when the default was committed by him on 4.12.1993. It was also stated that the defendant contacted the plaintiff at Chandigarh on 25.11.1993 who told him that he had been able to arrange a sum of Rs. 2.5 lacs only and could not pay the amount as stipulated in the said agreement and, therefore, the date of execution of sale deed be extended. Accordingly, the date of execution of sale deed was extended from 1.12.1993 to 4.12.1993. It was denied for want of knowledge that the plaintiff was ready with money in the shape or bank drafts which fact has come to defendant's knowledge only after going through the plaint and this ground seemed to have been taken with a mala fide intention and to create a defence against the defendant. In the end it was stated that the suit filed by the plaintiff was misconceived and even if it be accepted that the said agreement was valid, the maximum relief that the plaintiff could claim was that he can ask for refund of Rs. One lac paid by him in advance.
(3.) THE plaintiff filed a detailed replication controverting the pleas raised in the written statement and reiterating those taken in the plaint.;