M.M.KUMAR,J - (1.) THIS is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of fact recorded by both the Courts below holding that the suit of the plaintiff-respondent for alternative relief for recovery of sum of Rs. 1,50,000/- with interest @ 12 per cent p.a. from the date of execution of the agreement to sell dated 8.10.1999 before the passing of decree and future interest @ 6 per cent p.a. from the date of decree till realisation on the principal amount deserved to be decreed in his favour. The prayer of the plaintiff-respondent for partial specific performance of the agreement to sell to the extent of land measuring 3 kanals 9 marlas as detailed in the head note of the plaint and for recovery of Rs. 42,190/- with interest has been declined. Both the Courts below have concurrently found that the agreement to sell dated 8.10.1999 has been amply proved on record and the theory of loan transaction as projected by the plaintiff-respondent has been held to be concocted one.
(2.) THE trial Court had passed a decree for specific performance of a part of contract which infact was entered into between the parties in respect of 7 kanals 3 marlas of land. The decree was passed by the learned trial Court in respect of 3 kanals and 9 marlas. The trial Court has further passed the decree for recovery of Rs. 42,190/- in favour of plaintiff-respondent which was the balance amount after working out the price of the land proportionately as stipulated in the agreement to sell. In other words, land measuring 3 kanals 9 marlas was found to be worth Rs. 1,07,810/- and since the plaintiff had already paid earnest money of Rs. 1,50,000/- vide agreement to sell dated 8.10.1999 balance amount of Rs. 42,190/- was to be recovered by the plaintiff-respondent from the defendant-appellant. On appeal, filed by the defendant-appellant the decree passed by the trial Court, as noticed above, was held to be in contravention of the provisions of Section 12(3)(a)(b)(ii) of the Specific Relief Act, 1963 (for brevity 'the Act'). After quoting the aforementioned provisions, the learned appellate Court in para 12 of the judgment observed as under :- "The plaint reading of the provisions of Section 12(3)(a)(b)(ii) of the Specific Relief Act clearly supports the contention of the counsel for the appellant. In case, the plaintiff wanted the specific performance of the contract, in respect of a part of the property, agreed to be sold to him, though the part left unperformed forms a considerable part, admitting compensation then, he was not entitled to claim the damages/compensation for the remaining part. The trial Court, being oblivious of this provision, wrongly granted the relief of specific performance, in favour of the plaintiff."
(3.) THE learned lower appellate Court after dealing with various judgments cited at the bar came to the conclusion that the plaintiff-respondent did not relinquish his claim with regard to compensation and damages which is allegedly suffered on account of non-performance of the remaining part of the contract continued to observe as under :- "... In the instant case, as stated above, while claiming specific performance of a part of the property, agreed to be sold, in favour of the respondent, he did not relinquish his claim, with regard to the compensation/damages, which he allegedly suffered, on account of non-performance of the remaining part of the contract.... Since the conditions contained in Section 12(3)(a)(bb)(ii) were not fulfilled by the plaintiff, while seeking performance of a part of the agreement, and, on the contrary, he claimed compensation/damages, for the remaining part of the contract, left unperformed, no help can be drawn from the aforesaid authorities, by the respondent...... However, as held above, the plaintiff had not filed the suit, with regard to the performance of the agreement to sell, in toto, by impleading the third party, in whose favour, a part of the land, in dispute, was sold. This authority is also of no help, to the case of the respondent. The submission of the counsel for the respondent being without merit, must fail, and the same is rejected." ;