JUDGMENT :

(Goutam Bhaduri, J.)

1. The instant appeal is against the judgment and decree dated 28.02.2018 passed by the third Additional District Judge, Durg, whereby the suit for specific performance of agreement was decreed.

2. As per the plaint allegations, appellant/defendant owned a land bearing Kh.No.717/44 admeasuring 2086 sq.ft., wherein at the ground floor, construction of 1032 sqft was made and at the first floor construction of 930 sqft was made. The property is situated at Mouja Kasaridih, Ward No.42, Lane No. 1 P.H.No.18/25, Tahsil & District Durg. Plaintiff G.S. Arora averred that an agreement to sell the property was made by the seller-defendant for Rs.12 lakhs, out of which, 8 lakhs was paid by the plaintiff (Appellant no.1 herein) and further, the agreement was executed on 22.07.2011 and was got registered. As per the terms of the agreement, the remaining amount of Rs.4 lakhs was to be paid at the time of registration of sale deed. The plaintiff further averred that when the sale deed was not executed within the specified time, the defendant was asked to execute it, on which, the defendant sought time and another agreement was executed on 21.11.2011 that he will execute the sale deed by 31.12.2011. Thereafter the plaintiff respondent informed the defendant that he would be present with remaining amount of Rs.4 lakhs before the Sub-Registrar, but despite the fact that he was present there till 31.12.2011, the defendant seller did not turn up and sale-deed could not be executed. Therefore, the suit was filed by specific performance of the agreement.

3. The case of the appellant/defendant is that Virendra Kumar Tiwari, husband of appellant was in need of money, as such, he received an amount of Rs.2,30,000/- as a loan and interest over such loan was levied @ 4 ½ % per month and in lieu of security of such loan, 3 Cheques were given, which were kept in possession of the plaintiff and further more, the subject suit land was kept as a security for the loan. The defendant further stated that the agreement (Ex.P.1) was executed in the background of fact that on repayment of loan of Rs.2,30,000/-, the agreement would be cancelled, therefore, the agreement dated 22.07.2011 was a formal document which was not included to be acted upon for execution of sale deed. It is further stated that the defendant was not at all given Rs.8 lakhs and as per the guidelines of 2011 the market value of the property is worth Rs.80 lakhs, therefore, obviously it could not have been sold for Rs.12 lakhs. The seller further asserted that the agreement was in lieu of security of loan received of Rs. 2,30,000/- and since the financial position of the seller became week, as such, the plaintiff purchaser got certain documents executed and are being used for the purpose of the suit.

4. On the basis of the pleading of the parties, the trial Court framed as many as 7 issues and decreed the suit for specific performance without there being an issue on readiness and willingness. Issue no.1 was whether there was any transaction to purchase subject suit property. The answer to this issue was given in favour of the plaintiff. Issue no. 2 was as to whether the Appellant defendant after obtaining advance amount of Rs.8 lakhs on 22.7.2011 and further balance of Rs.4 lakhs within four months thereafter executed the sale agreement to sell the suit property and handed over the possession in favour of the plaintiff ? The court has answered the issue in positive. With respect to issue no. 3 whether the defendant has executed any promissory note on 21.11.2011 to execute the sale deed by 31.12.2011, finding was given in favour of the plaintff. Issue no. 4 was framed with respect to non-compliance of the terms of agreement and promissory note and the finding was against the defendant. With respect to issue no. 5, the trial Court held that the plaintiff is entitled to get the sale deed of the subject suit property registered in his favour. With respect to Issue no