- (1.) This first appeal has been filed against the judgment and decree dated 5.9.2012 passed by Additional District Judge, (Fast Track) No.5, Jaipur Metroplitan City, Jaipur in Civil Suit No. 01/2012 (278/2008) whereby suit for specific performance filed by plaintiff respondent has been decreed.
(2.) The brief facts of the case giving rise to this appeal are that plaintiff respondent filed a suit for specific performance of the agreement dated 14.12.2006 alleging therein that the defendant and his four brothers jointly agreed to sale the property for a consideration of Rs. 80 lacs and plaintiff paid Rs. 5 lac as advance amount vide cheque dated 14.12.2006 to the appellant defendant. It was alleged that the defendant was having 1/5 share in the plot. It was also agreed that the rest of the amount will be paid at the time of execution of sale deed. It has been pleaded that the plaintiff was always ready and willing to perform his part of the agreement. Other co-sharer of the plot executed the sale deed in favour of the plaintiff but defendant did not execute the sale deed. On the notice dated 1.2.2008, the plaintiff has been asked to pay amount of Rs. 38 lac for execution of the sale deed hence the suit has been filed. The defendant appellant denied the allegations and his contention was that the total sale agreement was 2.15 crore out of which his share is 43 lacs but the plaintiff has paid only Rs. 5 lac. He has not paid the rest of the amount, hence agreement has been cancelled vide notice dated 1.2.2008. The plaintiff himself was not ready and willing to perform his part of the agreement. It has also been pleaded that original agreement which was for sale consideration of Rs. 2.15 crore is with Abdul Ajij, brother of the appellant who was also a power of attorney holder of appellant but as he lost the faith, the power of attorney has been cancelled. On the contention of the parties, six issues have been framed. Plaintiff has examined power of attorney Vinay Chand Dhandhiya and defendant has also examined himself. After hearing suit has been decreed, hence this appeal.
(3.) The contention of the appellant is that the agreement is fictitious one as the total sale consideration was Rs. 2.15 crore. Time was the essence of the contract as has not been complied within three months from 14.12.2006, hence limitation has expired and during the limitation, the respondent has not taken any steps to get the sale deed executed in his favour. The agreement has been terminated vide notice dated 1.2.2008 but no relief has been asked by the plaintiff to set aside the termination. The plaintiff has not appeared in the witness-box. Only his power of attorney holder Vinay Chand Dhandhiya has put in appearance who cannot testify the facts which are in personal knowledge of the plaintiff. Document Ex.15, agreement to sale is not admissible as it has not been registered and not duly stamped. Agreement has not been proved by producing the attesting witness. Respondent was not ever ready and willing to execute the sale deed, hence the court below has erred in decreeing the suit and the decree be set aside. Per contra, the contention of the respondent is that in the agreement to sale for immovable property, the general presumption is that the time is not the essence of the contract and no specific fact has been pleaded by the plaintiff to show that the time was the essence. Admittedly, the agreement has been entered on 14.12.2006 and registry was to be executed within a period of three months but admittedly, the defendant appellant has encashed the cheque of advance of Rs. 5 lac in May, 2007 which clearly shows that the time was not the essence of the contract. The sale deed could not be get executed as there were disputes between the defendant and his family members and defendant himself could not comply with the conditions of the agreement. The sale consideration was only Rs. 80 lac and never agreed for Rs. 2.15 crore and four other executor of the sale agreement have already executed sale deeds in favour of plaintiff and possession of the properties of their share have been handed over to him. He was always ready and willing to get the sale deed executed but on flimsy grounds, the defendant was not ready to execute the sale deed asking Rs. 38 lacs without any basis. Execution of the document has been admitted by the appellant, hence any contention as regards the admissibility of the document cannot be entertained. Vide legal notice dated 1.2.2008, the agreement could not be terminated and for the sake of arguments if it could be accepted that notice dated 1.2.2008 has been served yet the appellant has not complied with the condition of payment of half the advance amount, hence the agreement has not been terminated. Vinay Chand Dhandhiya husband of plaintiff has appeared in the witness-box who has personal knowledge of the transaction hence non examination of plaintiff is not fatal. When agreement to sale has been admitted by the appellant defendant himself, there was no need to examine any attesting witness and there is no infirmity in the decree and appeal be dismissed.;