- (1.) This appeal has been preferred against the Judgment dated 04.01.2012, Decree dated 21.01.2012, passed and signed by Sub Judge-X, Ranchi in connection with Title Suit No. 259/2002 whereby the learned Sub Judge has been pleased to decree the suit for specific performance in favour of the respondent no. 1 and directed the appellant to execute Deed of Sale with respect to suit property after receiving the balance consideration amount with cost, failing which the Court will execute the Deed of Sale according to process of law.
(2.) The appellants were defendants no. 2 and 3 whereas proforma respondent no. 2 was the defendant no. 1 in the Court below. The respondent no. 1 was the plaintiff who filed Title Suit No. 259/2002 in the Court of Sub Judge-I at Ranchi with following facts: I. The defendant no. 1 is the absolute owner of the property pertaining to M.S. Plot No. 1875 corresponding to present Municipal Holding No. 1031, area measuring 6 Katha 9 Chhatak within Ward No. VII of Ranchi Municipal Corporation situated at Mohalla Tharpakhna, Town Ranchi, P.S. Lower Bazar, District Ranchi. II. The defendant no. 1 as land owner and the defendant no. 2 through its proprietor Surendra Kumar Singh, defendant no. 3 entered into a written agreement in favour of the plaintiff on 16th September, 1999 whereby and whereunder the defendant nos. 2 and 3 are required to construct multi-storied building complex (G +4) consisting of as many as thirteen flats besides parking space on the aforementioned land and name of the building complex would be Anjalika Awaas. III. By the said agreement, the defendant no. 1 agreed to sell his proportionate share in the aforementioned land and the defendants no. 2 and 3 agreed to sell one flat being Flat No. 2 on the first floor of the proposed multi-storied building complex consisting of two bed rooms, one drawing-cum-dining room, two bathrooms, one kitchen and balcony measuring 1000 Sq. Ft. of super built-up area, morefully described in the schedule to the plaint for a consideration of Rs.4,75,000/- (rupee Four Lacs Seventy Five Thousand) only and the plaintiff paid a sum of Rs.5,000/- only as an advance to the defendants no. 2 and 3 on the date of execution of the said agreement i.e. on 16.09.1999. IV. The plaintiff is a Government employee posted in the office of the Accountant General, Bihar, Hinoo, Ranchi, who had obtained loan to the extent of Rs.1,75,000/- for purchasing a Flat and said sum of Rs.1,75,000/- was paid to defendants no. 2 and 3 through Cheque No. 459159, dated 31.12.1999, and thus paid total sum of Rs.1,80,000/- to the defendant as advance which was duly acknowledged by the defendant no. 3 who issued a receipt dated 26.01.2000. V. The plaintiff further got sanctioned loan of Rs.3,00,000/- (Rupees Three Lac.) by Punjab National Bank, Ranchi and by cash order bearing no. RRF 746291, dated 17.01.2001 for Rs.1,00,000/- (Rupees One Lac.) drawn in favour of the defendant no. 2 and tendered the same towards part payment to the defendant no. 3 but it was refused. The plaintiff had also assured to pay balance sum of Rs.2,00,000/- (Rupees Two Lac.) to the defendant within ten days. VI. The plaintiff requested the defendant several times to receive balance consideration money and deliver possession of the flat and also to execute registered deed of sale in his favour for the suit property but the defendant went on postponing the issue on one pretext or the other. VII. The plaintiff was also ready and willing to pay the balance consideration money and to meet necessary expenses towards registration and execution of deed of sale in pursuance of the agreement dated 16.09.1999 but the defendant refused and neglected to perform their part of obligation under the agreement and hence cause of action for filing of suit arose on and from 16.09.1999 and on 31.12.1999, 26.01.2000 and on subsequent dates when the plaintiff requested the defendant to receive balance consideration and execute the Sale Deed in favour of the plaintiff and lastly on 5th September, 2000, when the plaintiff failed to comply the terms of agreement. VIII. On the basis of averments made in the plaint, the plaintiff sought for a decree for specific performance of agreement dated 16.09.1999 and prayed that the defendant be directed to execute and register deed of sale in favour of plaintiff with respect to suit premises after receiving balance consideration amount, cost of the suit, interest pendentilite and future and any other relief or reliefs to which the plaintiff may be found entitled.
(3.) The defendant no. 1 did not appear and hence the suit proceeded against him ex-parte. Defendant no. 3 for himself and on behalf of defendant no. 2 filed written statement admitting therein the agreement dated 16.09.1999 (Ext.-1) executed by and between the parties and also acknowledged receipt of Rs.1,80,000/- paid by the plaintiff against sale of suit property. Further case of the defendant is that due to non payment of instalments as per the schedule, the agreement dated 16.09.1999 was cancelled and that too, with the consent and approval of the plaintiff. The defendant was always ready and prepared to return the part payment received by him to the plaintiff provided he gives back the original agreement and 'No Objection Certificate' or the certificate issued by the office of the Accountant General, Bihar and Jharkhand to the effect that they had no objection. It was contended that on the basis of agreement dated 16.09.1999, the plaintiff had taken housing loan to the extent of Rs.1,75,000/-. In the event of cancellation of agreement, the said amount was liable to be refunded to the Government. To avoid any encumbrances on the suit property, the defendants no. 2 and 3 had also made correspondence with the office of the Accountant General and letters to this effect were sent. The defendants have further made out a case that as per payment schedule of said agreement, the possession of suit premises was to be delivered by the defendants to the plaintiff/ purchaser on or before 31.03.2000 and at the time of handing over of flat, the plaintiff was under obligation to clear all the balance consideration amount i.e. last 10% of the balance consideration amount. Since the plaintiff failed to pay the balance consideration amount as per schedule of the agreement and he had given consent to cancel the agreement (Ext.-1), the defendants no. 2 and 3 executed another agreement for sale for the said flat in favour of Mrs. Bishakha Saha (Ext.-D). Further pleading of the defendant in the written statement were that no cause of action ever arose, the payment schedule as agreed by the plaintiff was not followed and he failed to pay the balance consideration amount. The suit was liable to be dismissed for non-joinder of necessary party.;