Honble GOYAL, J.–This is an appeal by the defendant Ganpat Singh against the judgment and decree of Additional District Judge No. 3, Ajmer dated 26.7.2003 passing a decree for specific performance of an agreement to sell the suit house in plaintiffs favour.

(2). The plaintiffs (father and son) filed a civil suit for specific performance on 8.12.2000 with the averments that the defendant entered into an agreement with the plaintiffs to sell western portion of the house AMC No. 338/5 situated at Lakhan Kotari, Ajmer for a sum of Rs. 8,00,000/-. In pursuance of the said agreement the defendant received Rs. 3,50,000/- from the plaintiffs as part payment of the sale price and executed an agreement (Ex.1) on 13.12.1998. It was agreed upon between the parties that the balance of the sale price shall be paid at the time of the registration of the sale deed. The plaintiffs were always ready and willing to perform their part of the contract but the defendant continued to extend the time of executing the sale deed but did not execute the same inspite of notices dated 5.10.2000 and 25.10.2000 which were served upon the defendant.

(3). In his written statement, the defendant admitted having signed the agreement dated 13.12.1998 and also admitted receipt of Rs. 3,50,000/- from the plaintiffs. He, however, pleaded that he did not agree to sell the disputed property for a consideration of Rs. 8,00,000/- and the amount of Rs. 3,50,000/- was taken as loan from the plaintiffs. He was in need of money, hence he signed the document under pressure of the plaintiffs. He paid the interest @ 3% per month to the plaintiffs.

(4). The plaintiffs vide their rejoinder denied the new facts pleaded in the written statement.

(5). On the basis of the pleadings of the parties, issues were framed. Evidence was recorded. The learned Additional District Judge No. 3, Ajmer vide impugned judgment dated 26.7.2003 on consideration of the evidence led by the parties found that the defendant executed the agreement of sale which is Ex.1 and received Rs. 3,50,000/- as part payment of the sale price; that the defendant failed to prove that this amount was advanced by the plaintiffs as loan; that the defendant failed to prove that he paid any interest to the plaintiffs; that the plaintiffs were ready and willing to perform their part of the contract and thus passed a decree of specific performance as prayed by the plaintiffs.

(6). I have heard learned counsel for the parties. On account of the submissions of Mr. J.P. Goyal learned counsel for the defendant-appellant following points are framed for determination :-

(i) Whether the agreement Ex.1 was executed as a security to repay the loan advanced by the plaintiffs-respondents ?

(ii) Whether the decree of specific performance being discretionary in nature, the Trial Court should not have passed the decree of specific performance in this case ?

(iii) Whether the defendant-appellant was not the sole owner, hence he has no right to execute the agreement Ex. 1 ?

(7). First Point :- Mr. Goyal contended that there was no question to execute the agreement of sale as the defendant- appellant was not the sole owner. It was also contended that the Trial Court did not consider the evidence in a proper manner and there was no reason not to rely upon the evidence of the defendant. Mr. Karnani learned counsel for the plaintiffs supported the decision of the Trial Court.

(8). In paras 3 and 4 of the written statement the defendant admitted the receipt of Rs. 3,50,000/- with a plea that this amount was advanced to him as loan and he has been paying the interest @ 3% per month. According to the statement of the plaintiff Chand Mal-P.W.1 the defendant agreed to sell his house for a sum of Rs. 8,00,000/- and executed the agreement Ex.1 and received a sum of Rs. 3,50,000/-. This amount as per para 8 of the plaint was paid vide two cheques-one for Rs. 2,00,000/- and other for Rs. 1,50,000/-. These facts were not denied by the defendant in his written sta

Click Here to Read the rest of this document