R.S. Chauhan, J. - (1.) AGGRIEVED by the judgment and decree dated 30 -1 -2010, passed by Additional District Judge (Fast Track) No. 4, Ajmer, whereby the learned Judge has decreed the suit for specific performance in favour of the plaintiff -respondent, the defendant - appellants have challenged the same before this Court.
(2.) THE brief facts of the case are that the respondent, Major Hemant Singh Jamwal, instituted a civil suit for specific performance against the appellants with regard to an agreement to sell dated 19 -1 - 2006. According to respondent, he and appellant No. 1, Smt. Sheela Tulsyani, who is the power of attorney holder of appellant No. 2, Smt. Gopi, they had entered into an agreement to sell of a plot, for a consideration of Rs. 3,28,000/ -. At the time of signing of the agreement, the respondent had paid Rs. 28,000/ - to the appellant No. 1. Subsequently, despite the fact that the respondent repeatedly offered to pay the remaining amount of Rs. 3 lacs to appellant No. 1, she refused to have the sale -deed registered. The disinclination was shown ostensibly on the ground that there was some disagreement within the family about the sale of the plot in question. Since the appellants refused to perform the contract, the respondent filed the suit for specific performance of the contract. The appellants filed written statements. On the basis of pleadings of the parties, the learned trial court framed five issues, including the issue with regard to relief. In order to buttress his case, the respondent examined his power of attorney holder, Mr. Virendra Singh and exhibited eight documents, while the appellant No. 1 examined herself as a witness and exhibited eight documents. The appellant No. 2 neither examined herself, nor produced any documents. After going through the oral and documentary evidence, vide judgment dated 30 -1 -2010, the learned trial Judge decreed the suit in favour of the respondent. Hence, the present first appeal before this Court.
(3.) MR . G.P. Sharma, the learned Counsel for the appellants has vehemently contended that the agreement to sell was not duly stamped. Therefore, it could not have been received in evidence. Hence, the learned Judge has erred in marking it as an Exhibit. According to Section 40 of the Rajasthan Stamp Act, 1998, in case a document is not duly stamped, the same cannot be received in evidence. Secondly, although the said document is required to be registered under the Registration Act, the same has not been registered. Therefore, according to Section 49 of the Registration Act, the document could not have been admitted in evidence. Thirdly, once it was pleaded before the learned trial Judge, that there was disagreement within the family for the sale of the plot, the learned trial Judge should have exercised his discretion under Section 20 of the Specific Relief Act,1963 ('the Act' for short). Since the learned trial Judge has not exercised his discretion under Section 20 of the Act, the impugned judgment deserves to be set aside. Lastly, the learned trial Judge should have considered the applicability of Section 14 of the Act and should have concluded that the breach of contract can be compensated monetarily, therefore, the specific performance of the contract is not necessary.;