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PATNA HIGH COURT
S.Ali Ahmad and Ram Nandan Prasad JJ.
Diwali Lal
Versus
Sardar Baldev Singh
Appeal from Original Decree No. 446 of 1983 ;
Decided On : FEBRUARY 27, 1985
SPECIFIC PERFORMANCE OF CONTRACT - AGREEMENT TO SELL - VALIDITY - AMENDMENT OF PLAINT - LIMITATION - READINESS AND WILLINGNESS TO PERFORM CONTRACT - ADJUSTMENT OF DUES.
Fact of the Case:
Plaintiffs and defendants entered into an agreement to sell a property for Rs. 80,000. Plaintiffs paid Rs. 1,000 as earnest money and were to pay the balance of Rs. 45,000 after adjusting their dues of Rs. 34,000. Defendants refused to execute the sale deed. Plaintiffs filed a suit for specific performance of contract.
Finding of the Court:
1. The agreement to sell was valid and genuine. 2. Plaintiffs were entitled to an adjustment of only Rs. 7,000 towards their dues, besides the adjustment of Rs. 1,000 paid as earnest money to the defendants. 3. Plaintiffs were required to pay Rs. 72,000 as balance of the consideration money for getting the sale deed executed by the defendants. 4. Plaintiffs had failed to prove that the suit property was valued at rupees two and a half lacs at the relevant time. 5. Plaintiffs had also failed to prove that there was a partition in 1969 at which the suit property was exclusively allotted to Bangali Lal. 6. Bangali Lal was not a necessary party to the suit as he was a stranger to the contract.
Issues: 1. Whether the agreement to sell was valid and genuine? 2. Whether the plaintiffs were entitled to an adjustment of their dues towards the consideration money? 3. Whether the plaintiffs were required to pay Rs. 72,000 as balance of the consideration money? 4. Whether the plaintiffs had failed to prove that the suit property was valued at rupees two and a half lacs at the relevant time? 5. Whether the plaintiffs had failed to prove that there was a partition in 1969 at which the suit property was exclusively allotted to Bangali Lal? 6. Whether Bangali Lal was a necessary party to the suit?
Ratio Decidendi: 1. The agreement to sell was valid and genuine as it was duly executed by the defendants and the thumb impressions of the defendants tallied with their admitted thumb marks. 2. The plaintiffs were entitled to an adjustment of only Rs. 7,000 towards their dues, besides the adjustment of Rs. 1,000 paid as earnest money to the defendants, as per the terms of the agreement to sell. 3. The plaintiffs were required to pay Rs. 72,000 as balance of the consideration money for getting the sale deed executed by the defendants as they had offered only Rs. 45,000 to the defendants which was lesser amount than that payable to them. 4. The plaintiffs had failed to prove that the suit property was valued at rupees two and a half lacs at the relevant time as the defendants had miserably failed to prove that the suit property was worth Rupees two and a half lacs. 5. The plaintiffs had also failed to prove that there was a partition in 1969 at which the suit property was exclusively allotted to Bangali Lal as it was beyond the scope of a suit for specific performance of contract. 6. Bangali Lal was not a necessary party to the suit as he was a stranger to the contract.
Final Decision: The appeal was allowed and the judgment and decree appealed against were set aside. The plaintiffs' suit was dismissed and the parties were directed to bear their own costs throughout.
RAM NANDAN PRASAD, J.
1. This appeal by the defendants, is directed against the decision given by the Additional Subordinate Judge, VIth Court, Patna, whereby he decreed the suit of the plaintiffs for specific performance of contract.
2. The case of the plaintiffs is that defendant No. 1 Diwali Lal and father of defendant No. 3, namely, late Hazari Lal who were full brothers, were carrying on business under the name and style of Bhagwan Das Baijnath Lal at Padri Ki Haveli, Patna City. After the death of Hazari Lal, defendants Nos. 2 and 3 carried on the said business along with defendant No. 1 under the Kartaship of the latter. Their business, however, suffered loss and they became indebted to different persons and eventually the business was closed in 1971. They used to take loans from the plaintiffs as well and they had become debtor to them to the tune of Rs. 34000/-. They owed money to the other creditors as well. When the creditors started pressing for the repayment of the loans the defendants decided to sell the suit property which is a double storied building over an area of 68 karris bearing plot Nos. 2492 and 2493 situate in Mohalla Kasera Galli, within Khajekalan Police Station. When they proclaimed for the sale of the said building, the plaintiffs offered to purchase the same for a consideration of Rs. 80,000/-. Considering the amount offered by the plaintiffs to be reasonable, the defendants agreed to sell the building to them for the said consideration. Accordingly, the details of the terms were settled and the defendants accepted Rs. 1,000.00 as earnest money and executed an agreement to sell on 29-11-1974. According to the agreement, a sale deed was to be executed by the defendants by 15-12-1974 on being offered Rs. 45,000.00 by the plaintiffs at the time of the execution of the sale deed after adjustment of their dues to the tune of Rs. 34,000.00 and the earnest money of Rs. 1,000/-. On 12-12-1974 the plaintiffs purchased requisite stamps for the sale deed from the Patna Treasury in the name of plaintiff No, 1 and made over a draft of the sale deed to defendant No. 1 for approval. He offered to pay balance of the consideration money at the time of registration of the sale deed, but the defendants went on evading the execution of the sale deed. When the plaintiffs found that the defendants were not willing to execute the sale deed in spite of repeated requests made by them, they instituted the present suit for specific performance of contract on 14-3-1975.
3. The suit was contested by the defendants. One written statement was filed by the defendant No. 1 and the other by defendants Nos. 2 and 3, but the case put forward in both the written statements was the same. They have admitted that they were carrying on business under the name and style of Bhagwan Das Baijnath Lal, but according to them, this business was closed when a partition took place in the family in 1969 and in course of which all the family properties were partitioned. According to them, the suit property fell in the share of one Bangali Lal in the said partition and since then he is coming in possession thereof as exclusive owner and these defendants have nothing to do with the same.
4. The defendants have, however, admitted that their joint family had incurred a debt of about of Rs. 80,000.00 and defendant No. 1 was asked to pay off the debts by selling the family assets like utensils etc. and holding No. 32/24. Accordingly, the defendant No.1 sold the utensils of the firm and the said holding and paid off the entire debts of the joint family. The defendants have denied that they owed a sum of Rs. 34,000.00 to the plaintiffs, but they admitted that they had taken some loan on handnote and Hatchita from them which they claimed to have repaid to them.
5. The defendants have emphatically denied to have entered into any contract for sale of the suit property with the plaintiffs or to have executed the alleged agreement to sell. Their plea in
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