Point of Law : It was plaintiff who herself was responsible for non performance of the agreement. It has been proved that plaintiff herself had abandoned the intent to purchase the suit property.

JUDGMENT :

The appellant assails judgment and decree passed by learned District Judge, Solan, District Solan, H.P., in Civil Suit No. 17-S/1 of 2009, whereby the suit of the respondent has been decreed for recovery of Rs. 10,00,000/- along with proportionate costs and interest @ 6% per annum from the date of filing of the suit till realization of the whole decretal amount.

2. The respondent herein (hereinafter referred to as plaintiff) filed a suit for recovery of Rs.11,00,000/- along with future interest @12% per annum against the appellant (hereinafter referred to as the defendant).

3. Plaintiff and defendant had entered into an agreement dated 10.08.2006 (Ex.PW1/B) whereby plaintiff had agreed to purchase 5/19 share measuring 5 Biswas including two storeyed house, owned and possessed by defendant, in Khasra number 66, total measuring 19 Biswas, situated at Village Thada Ka Thakurdwara, Tehsil Kasauli, District Solan, H.P. (for short “suit land”).

4. Plaintiff filed the above noted suit against the defendant on the premise that the performance of agreement Ex.PW1/B had been frustrated on account of acts of omissions and commission on the part of the defendant. Plaintiff specifically averred in the plaint that defendant had represented himself to be the absolute and exclusive owner of the house and five Biswas of land, hence, plaintiff on such belief had entered into agreement, Ex.PW1/B. Further, plaintiff alleged that she later on came to know that defendant was co-owner with Shri Roop Lal son of Shri Dila Ram and Roop Lal son of Shri Kanshi Ram, which provided her with reasons to apprehend that the suit land was not identifiable and further NOC from other co-owners was also required. As per plaintiff, defendant purposely and willfully abstained from getting the house and land identified and demarcated, despite repeated requests of the plaintiff. It was also averred that plaintiff always was ready and willing to perform her part of contract but it suffered frustration due to non-cooperation from the defendant. Plaintiff also alleged that she had visited the house of the defendant many times with her relatives, requesting him to complete the documentation, but it was declared by the defendant that neither he would get NOC from co- owners nor would he get the house identified.

5. Plaintiff also pleaded her plight being a poor person. It was alleged that defendant could not usurp her hard-earned money and get unduly enriched.

6. Defendant contested the suit. He, however, admitted the execution of agreement, Ex.PW1/B and receipt of Rs.10,00,000/-. All other allegations against him were denied. He came out with the plea that neither he had refused the performance of his part of contract nor the performance thereof was frustrated. As per defendant, plaintiff could not arrange the balance of sale consideration. It was submitted that as per agreement Ex.PW1/B, the sale deed was to be executed by 10.02.2007. Since, 10.02.2007 happened to be the Second Saturday and the office of Sub Registrar was closed, defendant had telephonically asked the plaintiff to get the sale deed executed a day earlier, but she did not respond. Defendant again asked the plaintiff telephonically to get the sale deed executed on 12.02.2007 i.e., on the next working day. He kept waiting in the office of Sub Registrar throughout the day but she again failed to turn up. It was further submitted that defendant had purchased the share of 5 Biswas in Khasra No. 66, total measuring 19 Biswas situated at Mauza Thada Ka Thakurdwara, Tehsil Kasauli, District Solan, H.P., in the year 2000, from previous owner and had thereafter constructed a house after getting its plan sanctioned from the department of Town and Country Planning. Defendant also alleged that plaintiff had visited the house in question before execution of agreement, Ex.PW1/B and after having satisfied herself, she had executed the agreement. As per defendant, there was no need to obtain any NOC from the co-owner