NARENDRA KUMAR JAIN,J - (1.) THE defendant-appellants have preferred this Regular First Appeal under Section 96 of the Code of Civil Procedure challenging the impugned judgment and decree dated 2nd May, 2005 passed by the Additional District Judge No.5, Jaipur City, Jaipur, whereby the learned trial court decreed the Civil Suit No.116/2004 of the plaintiff-respondent No.1 for specific performance of the agreement dated 19th May, 2004 and permanent injunction.
(2.) BRIEFLY stated the facts of the case giving rise to this appeal are that plaintiff-respondent No.1 N.K. Gupta filed a suit for specific performance of the agreement dated 19th May, 2004 (Exhibit-1), possession and permanent injunction in the Court of District and Sessions Judge, Jaipur City, Jaipur against the defendant-appellants and the defendant-respondent No.2, which was transferred for disposal to the Court of Additional District Judge No.5, Jaipur City, Jaipur. In the plaint, the plaintiff pleaded that the defendants No.1 to 3 agreed to sell their plot of land bearing No. DC-2 situated at Lal Kothi, District Center, Jaipur, measuring total area of 5631.9 square meters, to the plaintiff for a consideration of Rs.4,10,00,000/- (Rupees four crore ten lac only). The plaintiff paid Rs.7,00,000/- (Rupees seven lac) through Cheque No.018173 and Rs.3,00,000/- (Rupees three lac) by cash, to the defendants No.1 to 3. In addition to the above sale consideration, the plaintiff also agreed to give a showroom measuring 1000 square feet super-built-area on the ground- floor after completion of the construction of the complex over the land in dispute, to the defendants No.1 to 3. The agreement was reduced in writing on 19th May, 2004. The said plot was allotted by the defendant No.4 Jaipur Development Authority (for short, 'the JDA') in favour of the defendants No.1 to 3, on 28th October, 2000. The defendants No.1 to 3 were required to get the sale-deed executed in their favour from the JDA and, as per the terms of the agreement, the remaining amount of sale consideration was to be paid at the time of Registry; the entire proceedings of the agreement were to be completed within a period of sixty days. The defendants No.1 to 3 did not get the sale- deed executed and registered in their favour from the defendant No.4 JDA. The plaintiff was required to pay the remaining amount of sale consideration at the time of Registry before the Sub-Registrar and, he was always ready and willing to perform his part of the agreement. Since the plaintiff was not informed by the defendants No.1 to 3 as to whether they got the sale-deed executed and registered in their favour from the JDA, therefore, the plaintiff served a notice on 5th July, 2004 on the defendants No.1 to 3 through his Advocate wherein the defendants No.1 to 3 were asked to let the plaintiff informed as to whether they got the sale-deed registered in their favour from the defendant No.4 JDA, or not, and when would they get the sale-deed registered in favour of the plaintiff; the plaintiff is always ready and willing to pay remaining amount of sale consideration before the Sub Registrar. The defendants No.1 to 3 sent their reply to the above notice, on 16th July, 2004, stating therein that the plaintiff should pay the registry charges of the lease-deed to be executed and registered by the defendant No.4 JDA in favour of the defendants No.1 to 3, otherwise they would refund the amount of Rupees ten lac paid to them. They further stated that it was also agreed upon in between the parties that the plaintiff would bear the expenses in respect of lease-deed to be executed and registered by the defendant No.4 in favour of defendants No.1 to 3. The plaintiff thereafter sent a rejoinder on 26th July, 2004 to the reply of the defendants No.1 to 3 dated 16th July, 2004 making it clear that it was never agreed in between the parties that the plaintiff would bear the expenses of execution, stamping and registry of the lease-deed to be executed by the defendant No.4 in favour of the defendants No.1 to 3; therefore, the plaintiff asked the defendants No.1 to 3 to get the lease-deed executed and registered immediately in their favour and thereafter to execute and register the sale-deed in favour of the plaintiff; the plaintiff further stated in the rejoinder that he has always been ready and willing to pay the remaining amount of sale consideration and he has sufficient funds for the same. Thereafter, the defendants No.1 to 3 gave a threatening on 28th July, 2004 to the plaintiff that they would sell the disputed plot to some other person; thereupon, the plaintiff got a public notice published in the daily newspaper 'Rajasthan Patrika' on 31st July, 2004 to the effect that the defendants No.1 to 3 have agreed to sell the above disputed property to plaintiff by executing the agreement, therefore, if the same is purchased by any one then it will not be binding on the plaintiff. The plaintiff also gave an application to the Additional Director, JDA, on 10th August, 2004 and prayer was made therein not to transfer the aforesaid plot in the name of any other person.
(3.) IT was further pleaded in the plaint that due to the threatening given by the defendants No.1 to 3 to the plaintiff on 28th July, 2004 and 10th August, 2004 to the effect that, on account of price hike of the disputed land, they would sell it to some other person and, as such, the plaintiff was compelled to file a suit for permanent injunction immediately, which was filed against the defendants No.1 to 3 in the trial Court on 25th August, 2004 with the prayer that by way of permanent injunction, the defendants No.1 to 3 be restrained from transferring the said plot by means of sale-deed, mortgage, gift or in any other manner and they should not handover the possession thereof to anyone. It was also pleaded that the defendants filed their written-statement to the suit for injunction wherein they specifically admitted in Para 11 thereof that they gave threatening to the plaintiff on 28th July, 2004 and 10th August, 2004 that they would sell the disputed property to some other person, which shows dishonesty on the part of the defendants No.1 to 3 and, as such, the plaintiff is entitled to get a decree of specific performance of the agreement dated 19th May, 2004, as well as possession of the disputed plot. The plaintiff also filed an application for temporary injunction bearing No.65/2004 along-with the suit for injunction but the same was dismissed vide order dated 28th October, 2004 on the ground that the plaintiff has an alternative and effective remedy by way of suit for specific performance, therefore, the present suit for specific performance is being filed immediately.;