JUDGMENT :

Goutam Bhaduri, J.

1. Heard.

2. Challenge in this appeal is to the order dated 26.07.2016, passed by the Court of Additional District Judge, (FTC), Rajnandgaon (CG) in Civil Suit No.9-A/11, whereby the suit for specific performance of contract filed by the plaintiff was dismissed. The instant appeal is by the plaintiff/purchaser to the agreement.

3. The suit was filed on 31.03.2009 that the plaintiff entered into an agreement with Smt. Parwati Sharma for purchase of a land bearing Khasra No.274/8 and 274/13 total 16,000/- sq. feet, situated at Village Lakholi for consideration of Rs.97 Lakhs. The agreement of sale was executed on 03.12.2007 and earnest money of Rs.5 Lakhs was paid in cash thereafter on 08.12.2007 Rs.1,50,000/- cash was paid and subsequently an amount of Rs.2,50,000/- & Rs.1,00,000/- was paid through cheque thereby total earnest money of Rs.10,00,000/- was paid and according to the plaintiff, the sale was to be executed till 03.09.2008. As per plaintiff before such sale deed is executed, a month before the land was required to be demarcated and all the documents of title deed were required to be handed over. It was further agreed that part of the subject land since was occupied by Ashoka Transport, it was also decided to get such premises vacated from them. It was further agreed that since the land was adjacent to the National Highway it was agreed in case the part of land is acquired for construction of the Highway if any part of the land is released, then the condition of adjustment the amount of consideration was agreed. It was also agreed that if the land goes by measuring from 90 feet from the center of the road, then it would be the seller’s liability. Further as per plaintiff it was agreed that from the date of agreement if seller is in need of money within a period of three months an amount of Rs.15 Lakhs would be paid and the rest of the amount would be paid at the time of registration of sale deed. The agreement was typed on 08.12.2007 wherein the receipt of Rs.5 Lakhs on 03.12.2007 was acknowledged. It further stated that in the agreement, the number of land was shown wrongly by typographic mistake and it was written as 278/8 and 274/13.

4. The plaintiff further contended that the defendant sent a notice of cancellation of the agreement on the ground that the plaintiff had not paid the amount of Rs.15,00,000/- within three months from the date of 03.12.2007. The plaintiff further stated that after receipt of cancellation notice of agreement, the plaintiff published a public notice that as to whether anyone has any right or charge over the property, but pursuant to such public notice no response was received. Whereas the defendant published the cancellation notice of agreement in the news paper. The plaintiff further stated that as agreed, the plaintiff appeared before the Sub-Registrar on 12.05.2008 with the amount of consideration to get the sale deed registered but the defendant did not turn up and when contacted it was stated that the Husband of the defendant is since out of station, therefore, the sale deed could not be executed and the same state of affairs continue and eventually the plaintiff by a notice dated 27.05.2008 called upon the defendant to execute the sale deed in his favour. The plaintiff further stated that the defendant neither got the land demarcated as agreed in the sale agreement nor got the part of the land vacated from Ashoka Transports, therefore, she herself failed to perform her part of contract and illegally annulled the agreement. Consequently, the execution of the sale deed of the subject property of agreement by payment of 87 Lakh was prayed for.

5. The defendant in her reply agreed to receive the amount of Rs.10 Lakhs pursuant to the oral agreement on 03.12.2007 for sale of land bearing Khasra No.274/8 & 274/13. It was stated that on 03.12.2007 no agreement was executed and receipt of the amount of Rs.5 Lakhs was only acknowledged in a stamp of Rs.50/- and the pl