Point of Law: In a suit for specific performance supression of material facts would disentitle a party from getting relief of specific performance.

JUDGMENT :

GOUTAM BHADURI, J.

1. Challenge in this appeal is to the judgment and decree dated 30.11.2017 passed by the Fourth Additional District Judge, Raipur, to the Court of First Additional District Judge in Civil Suit No. 55-A/2012 whereby the suit for specific performance brought by the plaintiff/appellant was dismissed.

2. The facts, in brief, are that the plaintiff No. 1 Sunder Devi Vyas is the wife of Late Jai Shankar Vyas; plaintiffs No. 2 and 3 Devendra Kumar Vyas and Hitendra Kumar Vyas are the sons and plaintiffs No. 4 and 5 Smt. Bhagwati Devi Bohra and Smt. Vijay Laxmi Purohit are the sons and daughters of Late Jai Shankar Vyas. The suit property is situated at Lane No. 2, Rajeev Gandhi Ward, Fafadih, Raipur, bearing khasra No. 280 (Part), Plot No. 1/51 (Part), Sheet No. 20 admeasuring 2645 sq. ft. wherein on the ground floor construction over 1366 sq. ft. was made and in the first floor construction over 870 sq.ft. was made. As per the plaint averments, agreement of purchase of the said house was entered with Sudhir Kumar Singh for a sale consideration of Rs. 15.00 lacs and along with it movable property attached to it was valued to Rs. 7.00 lacs was also agreed to be sold and total sale consideration of Rs. 22.00 lacs was fixed. The agreement was executed on 29.11.2004 (Ex.D/1). The initial agreement was entered by Jai Shankar Vyas (husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 5) and Rs. 10.00 lacs was paid on different dates. Subsequently, the sale agreement was notarized on 24.01.2005 (Ex.P/4).

3. According to the plaint averments before the sale deed could be executed Sudhir Kumar Singh (seller) died. The property was mortgaged with the Union Bank of India (defendant No. 3) and it had attached the property for recovery of the dues under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’). According to the plaintiff, it was agreed that the plaintiff would purchase the same and Rs. 10.00 lacs in lieu of repayment of loan was paid to the Bank by plaintiffs and further agreed that the remaining sale consideration to the tune of Rs. 12.00 lacs would be advanced by way of housing loan by the Bank to the plaintiffs. The plaintiff contended that he was ready and willing to execute his part of contract but the possession of the subject suit property was not given. Plaintiff further contend that after payment of Rs. 10.00 lacs the coercive sale at the instance of the Bank was stopped but the defendant failed to give possession of the suit premises to the plaintiff. Further averments have been made that the plaintiff is ready and willing to get the sale deed executed by payment of remaining amount of Rs. 12.00 lacs as per the sale agreement. According to the plaintiff, the defendant failed to comply with the terms of agreement and hence notice was served upon them to get the sale deed executed but eventually the defendant failed to do so. Consequently, suit for specific performance was filed against the defendants.

4. The defendants No. 1 and 2 in their reply denied the plaint averments. It was stated that the plaintiff has not paid the earnest money at any point of time to the defendant Nos. 1 and 2 or to late Sudhir Kumar Singh or Bank in lieu of loan and the agreement which was sought to be executed was fabricated and based there on subsequently the suit was filed. It was pleaded as a result the agreement is illegal and the same is not binding on the plaintiffs. The defendants further contended that there was no concluded contract in respect of the suit property in between the plaintiff and the defendant. According to the defendants, after the death of Sudhir Kumar Singh his legal heirs were not substituted, therefore, the suit abated and the agreement cannot be ordered to be specifically performed.

5. The defendant No. 3/Bank in its reply stated that loan was granted to the defendant on cash credit accoun