TYAGI, J. - (1.) THIS is a defendants' appeal against the judgment and decree of the Additional District Judge, Alwar dated 31st of August, 1973, decreeing the suit of the plaintiff for specific performance.
(2.) PLAINTIFF Daulatram filed a suit making an averment that he entered into an agreement with the defendants Gyanchand and Padamchand to purchase a shop belonging to the defendants for an amount of Rs. 7,000/- and against this price he paid Rs. 1,300/- to the defendants on the same day and a further sum of Rs. 500/- was paid after some time. The grievance of the plaintiff was that the defendants did not execute the sale deed and hand over the possession of the disputed shop to the plaintiff. Notices were exchanged between the parties. The defendants in a reply to one of the notices alleged that the price fixed was not Rs. 7,000/- but Rs. 11,500/- and that it was so agreed between the parties that within a period of one month the plaintiff shall pay to the defendants the balance of the price and get the sale deed registered, but the plaintiff failed to discharge his obligation under the agreement and therefore he forfeited the amount of Rs. 1,300/- which was terned as an earnest money by the defendants and that after the period of one month the plaintiff was not entitled to claim the specific performance. The defendants also denied to have received the amount of Rs. 500/- from the plaintiff. The plaintiff after receiving the said notice was left with no alternative but to file a suit alleging the aforementioned facts and prayed that a decree for the specific performance of the contract be awarded in favour of the plaintiff and that if the court arrives at a finding that the sale price was fixed at Rs. 11,500/- the plaintiff would pay the balance of the sale price after deducting Rs. 1,800/ -. A decree for Rs. 200/- as damages was also sought by the plaintiff and it was also prayed that in case the decree for specific performance is not granted, the defendants may be asked to refund Rs. 1,800/- with interest at the rate of 12% to the plaintiff. The defendants came out with a plea that was disclosed by them in reply to the notice (Ex. 4) received from the plaintiff dated 1-3-1969 and prayed that the suit of the plaintiff be dismissed with costs. After the written-statement was filed by the defendants, the plaint was amended by the plaintiff wherein it was specifically mentioned that the plaintiff was ready and willing to discharge his obligation under the agreement and even now if the court feels that the sale price was fixed at Rs. 11,500/- he is ready and willing to pay the balance of the sale price to the defendants to enable them to execute the sale deed in favour of the plaintiff. The trial court framed, on the basis of the pleadings of the parties, as many as 10 issues. The plaintiff Daulatram came in the witness-box and his statement was recorded. He also produced eight other witnesses. In order to demolish the case of the plaintiff both the defendants entered the witness-box and deposed that the price of the shop was fixed at Rs. 11,500/- and that the time was the essence of the contract; therefore, after the lapse of the period of one month the plaintiff could not claim a decree for the specific performance of the agreement. They also denied the receipt of Rs. 500/- from the plaintiff. Besides these two witnesses, the defendants examined D. W. 3 Damodarlal who was responsible for playing the role of a middle man to bring the two parties together for entering into the said agreement. Ramjilal (D. W. 4) who was the Munim of the defendants was also examined to prove the terms of the agreement of Sale and also to rebut the fact that he did not go to shop of the plaintiff to deliver a receipt for Rs. 1,300/- as deposed by the plaintiff himself. The trial court, after carefully examining the evidence of the parties, rejected the plaintiff's claim that the defendants had agreed to sell their shop for Rs. 7,000/-and held that the price was fixed at Rs. 11,500/ -. The court also held that the plaintiff could not prove the payment of Rs. 500/- towards the balance of the sale price, but the court passed a decree for the specific performance of the agreement directing the plaintiff to deposit the balance of the sale price, that is Rs. 10,200/- in the court and the defendants were directed to execute the sale deed in favour of the plaintiff. It is in these circumstances that the defendants have filed this appeal in this Court. The plaintiff has also preferred cross-objections claiming that this Court should hold that the price fixed for the sale of the shop was Rs 7,000/- and not Rs. 11,500/- and that it may further be held that the plaintiff had paid, besides Rs. 1,300/-, a sum of Rs. 500/-to the defendants towards the sale price.
(3.) LEARNED counsel appearing on behalf of the appellants argued that in the face of the finding given by the court below that the price of the shop was fixed at Rs. 11,500/- a decree for the specific performance of the contract could not be passed against the defendants as the plaintiff, who was all through claiming the price at Rs 7,000/- cannot be said to have been ready and willing to discharge his obligation under the contract of sale because he never offered to the defendants the real balance of sale price which was Rs. 10,200/ -. Mr. Hastimal, appearing on behalf of the plaintiff respondent, on the other hand, contended that the plaintiff in his amended plaint had specifically averred that in case the sale price is found to be. Rs. 11,500/-he was prepared to pay the balance calculated on the basis of the said price and therefore in the circumstances of this case it should be held that the plaintiff was ready and willing to discharge his obligation under the agreement of sale. Before deciding this question whether in the light of the finding of the court below a decree for specific performance can be passed, I would like to dispose of the cross objections of the plaintiff wherein he requires this Court to hold that the price settled between the parties was Rs. 7,000/- and not Rs. 11,500/ -. I was taken through the statements of the plaintiff's witnesses. Plaintiff Daulatram (P. W. 1) has, however, stated that the price was settled at Rs. 7,000/ -. He produced Moolchand (P. W. 2) and Mangalram (P. W. 3) to prove that the settlement arrived at between the parties for the sale of the shop was for Rs. 7,000/ -. In order to draw support to this averment the plaintiff produced Rameshwar (P. W. 5) who had purchased a ,neighbouring shop from Pushpadevi, daughter of Padamchand defendant, for Rs. 7,000/ -. The learned Judge while dealing with this question has very carefully dealt with the testimony of these witnesses and he found that no reliance can be placed on the depositions of Daulatram (P. W. 1), Moolchand (P. W. 2) and Mangalram (P. W. 3) regarding the settlement of price. P. W. 2 Moolchand could not, however, point out the exact shop about which the agreement was entered into between the parties. He even could not correctly disclose the age of Gyanchand who, in his opinion, was about 60 to 65 years of age. Similarly, Mangalram's testimony which suffers from various infirmities pointed out by the learned trial court, was not found to be trustworthy. Daulatram (P. W. 1) is the plaintiff himself. But if their statements are examined in the light of the exchange of notices, then it becomes clear that the price was not settled at Rs. 7,000/ -. In a reply to the notice (Ex. 4) the defendants' counsel Shri Madanlal Bhargava made it clear that the price settled was Rs. 11,500/- and not Rs. 7,000/ -. This reply is dated 1st of March, 1969. Thereafter another notice was issued on behalf of Daulatram by Shri Shradhanand Sharma, Advocate on 20th of March, 1969 wherein this fact was not denied by the learned Advocate of the plaintiff that the price was not fixed at Rs. 11. 500/ -. This document is Ex. 5. When a controversy about the sale price had been raised by the defendants in their reply dated 1-3-1969 (Ex. 4), then it was but natural for the plaintiff, when another notice was issued on his behalf, to have refuted the allegation made by the defendants about the sale price but it was not done. Rameshwar has come in the witness-box and has deposed that he had purchased a shop in the neighbourhood of the disputed shop from the daughter of Padam Chand defendant - Smt. Pushpadevi, for Rs 7,000/- but the condition of this shop as pointed out by the learned Judge is different from the disputed shop and, therefore, it cannot afford a clue to fix the price of the disputed shop at Rs 7,000/ -. Besides the sale transaction between Rameshwar and Smt. Pushpadevi, the plaintiff has placed reliance on two other sale transactions of similar shops which were sold to Hardwarilal and a godown purchased by Gaindmal. The learned trial judge himself went to inspect the site and found that the condition of the shops that were sold to Rameshwar, Hardwari Lal and Gaindmal was different from the condition of the suit shop and therefore those transactions cannot afford any ground to accept the averment of the plaintiff that the agreement was entered between the parties for the sale of the suit shop for Rs. 7,000/ -. Gaindmal (P. W. 9) has specifically mentioned that the premises purchased by him were a godown and not a shop and that the godown is situate on the back of the shop. In my opinion, these instances of prior sale of other shops cannot afford a valid clue to ascertain the price of the suit shop. ;