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PATNA HIGH COURT
Mungeshwar Sahoo, J.
Ram Chandra Prasad —Appellant
versus
Smt. Mina Devi —Respondent
First Appeal No. 60 of 2007
Decided on 16.5.2011
(ii) Specific Relief Act, 1963—Section 16(c)—Suit for specific performance of contract—Plaintiff agreed to purchase and defendant agreed to sell suit house—Plaintiff paid earnest money of Rs.2,24,000—As per agreement balance amount of Rs.76,000 payable at time of execution of sale deed—Payment of earnest money proved—Plaintiff ready and willing to pay balance consideration to get sale deed executed—Alternative relief of recovery of Rs.2,24,000 with interest @ 2% p.m. granted by Court below upheld. (Paras 19 and 20)
Result: Appeal dismissed.
Mungeshwar Sahoo, J.—The defendant has filed this first appeal against the judgment and decree dated 26.9.2006 passed by Sri Radheshyam Singh, the learned 4th Subordinate Judge, Bhojpur, Ara in Title Suit No.593 of 2002 whereby the learned Court below decreed the alternative prayer of the plaintiff/respondent in the suit for specific performance of contract.
2. The plaintiff/respondent filed the aforesaid Title Suit No. 593 of 2002 praying for specific performance of contract dated 22.12.1999 on receiving balance consideration amount of Rs.76.000 and in the alternative prayed for a decree for recovery of Rs.2.24.000 with interest @ Rs.2 per month from the date of agreement dated 22.12.1999.
3. The plaintiff prayed the aforesaid relief on the facts inter alia which may be briefly stated thus, that the parties were knowing each other from before. The defendant/ appellant had taken loan at the time of marriage of his daughter and to repay the same he agreed to sell the suit house for Rs.3.00,000. The plaintiff/respondent agreed to purchase the same and paid Rs.2,24.000 as earnest money and a Mahadanama was executed in presence of the witnesses. The defendant signed on the Mahadanama. According to the said agreement the balance consideration amount of Rs.76,000 was to be paid and then a sale deed was to be executed and registered in favour of the plaintiff. The plaintiff arranged the said amount in the month of October, 2002 and went to pay the defendant and asked him to execute the sale deed but the defendant avoided. Thereafter the plaintiff and her husband tendered the said balance amount of Rs.76,000 repeatedly but the defendant avoided. Then the plaintiff sent advocate notice. On 24.10.2002 the defendant replied the notice also whereupon the plaintiff came to know about the ill-intention of the defendant. The agreement was to be performed within 22.12.2002.
4. The defendant/appellant appeared and filed contesting written statements denying all the allegations made in the plaint. Mainly, the defence of the appellant is that no such agreement was ever executed between the parties. There was no agreement. The payment of earnest money of Rs.2.24.000 was also denied. It is stated that the agreement in question is forged and fabricated. The further defence is that the defendant has no other house except the suit house and his son has got equal interest in the property and the defendant/appellant is a drunkard.
5. On the basis of the above pleadings of the parties, the learned Court below framed various issues.
6. After trial the learned Court below came to the conclusion that the agreement i.e. Mahadanama is genuine and the defendant in his full sense after receiving the earnest money of Rs.2.24.000 executed the said agreement in presence of the witnesses. The learned Court below also found that the defendant has not returned the said earnest money nor executed the sale deed. However, the learned Court below found that the defendant/appellant has got the suit house as his only residential house and in the suit house he is residing with his family, therefore, granted the alternative relief instead of granting the relief for specific performance of the contract.
7. The plaintiff is satisfied with this decree whereby alternative relief has been granted. However, the defendant has filed this first appeal challenging that part of the decree whereby the alternative relief has been granted.
8. The learned counsel Mr. V. Nath appearing on behalf of the appellant raised two grounds assailing the aforesaid part of the decree. The first ground raised by the learned Counsel is that the suit for specific performance of contract itself was not maintainable and in such circumstances the said suit should have been dismissed, therefore, there was no question of granting alternative relief but the learned Court below has wrongly granted alternative relief. There is neither pleading in terms of Section 16(c) of the Specific Relief Act nor evidence
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