GOYAL, J. - (1.) THIS is an appeal by the defendant Ganpat Singh against the judgment and decree of Additional District Judge No. 3, Ajmer dated 26. 7. 2003 passing a decree for specific performance of an agreement to sell the suit house in plaintiffs favour.
(2.) THE plaintiffs (father and son) filed a civil suit for specific performance on 8. 12. 2000 with the averments that the defendant entered into an agreement with the plaintiffs to sell western portion of the house AMC No. 338/5 situated at Lakhan Kotari, Ajmer for a sum of Rs. 8,00,000/ -. In pursuance of the said agreement the defendant received Rs. 3,50,000/- from the plaintiffs as part payment of the sale price and executed an agreement (Ex. 1) on 13. 12. 1998. It was agreed upon between the parties that the balance of the sale price shall be paid at the time of the registration of the sale deed. THE plaintiffs were always ready and willing to perform their part of the contract but the defendant continued to extend the time of executing the sale deed but did not execute the same inspite of notices dated 5. 10. 2000 and 25. 10. 2000 which were served upon the defendant. In his written statement, the defendant admitted having signed the agreement dated 13. 12. 1998 and also admitted receipt of Rs. 3,50,000/- from the plaintiffs. He, however, pleaded that he did not agree to sell the disputed property for a consideration of Rs. 8,00,000/- and the amount of Rs. 3,50,000/- was taken as loan from the plaintiffs. He was in need of money, hence he signed the document under pressure of the plaintiffs. He paid the interest @ 3% per month to the plaintiffs. The plaintiffs vide their rejoinder denied the new facts pleaded in the written statement. On the basis of the pleadings of the parties, issues were framed. Evidence was recorded. The learned Additional District Judge No. 3, Ajmer vide impugned judgment dated 26. 7. 2003 on consideration of the evidence led by the parties found that the defendant executed the agreement of sale which is Ex. 1 and received Rs. 3,50,000/- as part payment of the sale price; that the defendant failed to prove that this amount was advanced by the plaintiffs as loan; that the defendant failed to prove that he paid any interest to the plaintiffs; that the plaintiffs were ready and willing to perform their part of the contract and thus passed a decree of specific performance as prayed by the plaintiffs. I have heard learned counsel for the parties. On account of the submissions of Mr. J. P. Goyal learned counsel for the defendant-appellant following points are framed for determination :- (i) Whether the agreement Ex. 1 was executed as a security to repay the loan advanced by the plaintiffs-respondents ? (ii) Whether the decree of specific performance being discretionary in nature, the Trial Court should not have passed the decree of specific performance in this case ? (iii) Whether the defendant-appellant was not the sole owner, hence he has no right to execute the agreement Ex. 1 ?
(3.) FIRST Point :- Mr. Goyal contended that there was no question to execute the agreement of sale as the defendant- appellant was not the sole owner. It was also contended that the Trial Court did not consider the evidence in a proper manner and there was no reason not to rely upon the evidence of the defendant. Mr. Karnani learned counsel for the plaintiffs supported the decision of the Trial Court. In paras 3 and 4 of the written statement the defendant admitted the receipt of Rs. 3,50,000/- with a plea that this amount was advanced to him as loan and he has been paying the interest @ 3% per month. According to the statement of the plaintiff Chand Mal-P. W. 1 the defendant agreed to sell his house for a sum of Rs. 8,00,000/- and executed the agreement Ex. 1 and received a sum of Rs. 3,50,000/ -. This amount as per para 8 of the plaint was paid vide two cheques-one for Rs. 2,00,000/- and other for Rs. 1,50,000/ -. These facts were not denied by the defendant in his written statement. P. W. 1 Chand Mal denied any payment of amount as interest by the defendant. He, in cross- examination denied that this amount was paid to the defendant as loan. He denied that any amount of interest was paid to him by the defendant in presence of Om Prakash and Chotu Lal P. W. 2 Chotu Lal and P. W. 3 Om Prakash supported the oral testimony of the plaintiff. According to the statement of the defendant Ganpat Singh he delivered gold ornaments worth Rs. 30,000/- to the plaintiffs against the amount of interest on 23. 6. 1999, then he paid Rs. 84,000/- on 23. 8. 1999 and a sum of Rs. 63,000/- on 23. 4. 2000 as interest. In cross-examination, he stated that the facts of these three payment were disclosed by him to his counsel but he is unable to explain as to why these facts were omitted in the written statement. He further admitted three entries dated 23. 6. 1999, 23. 8. 1999 and 23. 4. 2000 on the back of the agreement Ex. 1. He admitted that time of the agreement was extended by him vide these three writings. D. W. 2 Kailash Sharma supported the oral testimony of the defendant. In cross-examination, he admitted that he is the tenant of the defendant. He further admitted that Ex. 1 agreement was got prepared by the defendant himself and this agreement was signed in the presence of the defendant Ganpat Singh, plaintiff Chand Mal and one witness Chotu Lal. Upon a careful study of the agreement Ex. 1, three entries on the back of this document extending time of the agreement from time to time and oral testimony, I find no reason to interfere with the findings of the Trial Court on this issue. There is no entry on the back of the agreement Ex. 1 with regard to payment of any amount as interest. There is no plea in the written statement about the payment of interest at three occasions as stated by the defendant in his statement and the explanation given by him is of no consequence because these facts were quite material. It is also significant to say that when the amount of Rs. 3,50,000/- was paid by the plaintiffs to the defendant through two cheques, in that case the oral testimony of the defendant is not reliable at all that he delivered gold ornaments worth Rs. 30,000/- and cash amount of Rs. 1,47,000/- against the amount of interest without obtaining any receipt from the plaintiffs. Therefore, the first point is decided against the defendant-appellant. ;