Gauhati High Court
M/S Shree Ganga Marbles vs Sardar Charan Singh And Ors on 20 November, 2015
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
RFA 59/2004
M/s. Shree Ganga Marbles, a Partnership
firm registered under the Indian Partnership
Act, having its principal place of business
In Saraf Building, 2nd Floor, A.T. Road,
Guwahati-1, District Kamrup represented
by its partner Sri Sushil Kumar Saraf, son
of Sri Laxmi Narayan Saraf, resident of
Athgaon, Guwahati-1, District : Kamrup.
------- Appellant/Plaintiff
VS.
1. Sardar Charan Singh
Son of Late Sardar Joginder Singh,
T.M. Engineering House,
Resident of Hatigaon, P.O.-Dispur,
Guwahati-5, District Kamrup.
-- Respondent/Defendant
2. Smti. Ikbal Kaur, Wife of Late Avtar Singh,
3. Sri Harpeet Singh, Son of Late Avtar Singh,
4. Sri Amardeep Singh, Son of Late Avtar Singh.
Nos. 2 to 4 are residents of Chanakya Path, Dispur, Guwahati-5, P.O.- Dispur, District : Kamrup.
5. United Bank of India Ulubari Branch, Guwahati-8, District : Kamrup.
------- Proforma Respondents
Proforma Defendants
BEFORE
HON'BLE MR. JUSTICE MANOJIT BHUYAN
For the Appellant :: Mr. R. Dubey
Mr. C.K.S. Baruah
Mr. G. Mishra
Mr. A. Dey
2
Mr. M. Rajkhowa
Ms. M.S. Pathak
Mr. A. Sattar
Mr. Z. Mukit
Ms. D. Saraf
Mr. S. Gupta
Mr. R.P. Gupta
......learned counsel for the appellant
For the Respondent/Defendant :: Mrs. R. Bordoloi
No. 1 Mr. T. Baruah
Mr. F. Ahmed
Ms. A. Medhi
Mr. R. Goswami
Mr. R. Bhattacharyya
Mr. R. Saikia
Mr. R. De (R-1)
Ms. D. Devi (R-1)
Mr. R.J. Sarma (R-1)
Ms. P. Phukan (R-1)
......learned counsel for the Respondent/
Defendant No. 1.
Date of hearing :: 20.11.2015
Date of delivery of Judgment :: 20.11.2015
JUDGMENT & ORDER(ORAL)
1. Heard Mr. R. Dubey, learned counsel representing the appellant as well as Mr. R.J. Sarma, learned counsel representing the Respondent No. 1/Defendant No. 1.
2. Title Suit No. 193/1989 was instituted by the appellant/plaintiff before the Court of the Civil Judge (Civil Division) No. 2, Kamrup, Guwahati for specific performance of the contract for sale. The facts as appearing from the plaint is that some time in the month of November, 1986 the Respondent/Defendant No. 1 i.e. Sardar Charan Singh expressed his intention to the appellant/plaintiff to sell land belonging to him measuring 6 Lechas covered by Dag No. 66 of Kheraj Periodic Patta No. 234(old)/181 (New) situated at Ulubari Town, Block-I, Mouza- Ulubari, Guwahati, 3 together with the four-storied RCC building standing thereupon. The said offer being accepted, an Agreement for Sale was drawn up and executed by and between the parties on 24.11.1986, which apparently was not registered. As part performance of the contract for sale, the appellant/plaintiff paid a sum of Rs. 2,00,000/- (Rupees Two lakhs) to the Respondent /Defendant No. 1 in advance out of the total contracted consideration of Rs. 10,00,000/- (Rupees Ten lakhs). The Agreement for Sale indicated the manner of the payment of the sum of Rs. 2,00,000/-, that is, by cash payment of Rs. 50,000/- and the balance Rs. 1,50,000/- by Pay Order dated 22.11.1996 of the Central Bank of India, Dispur Branch, Guwahati. The said Agreement disclosed delivery of possession of the ground floor of the building to the appellant and since the major portion of the ground floor was being occupied by a business concern, namely, M/s Star Refri Home (Assam) as a monthly tenant of the Respondent/Defendant No. 1 and rent having been paid up to 23.11.1986, the Agreement evidenced that the Respondent/Defendant No. 1 would have no claim further in respect of the rent from M/s. Star Refri Home (Assam) and the appellant will be entitled to collect and enjoy monthly rent from the said business concern on and from 24.11.1986. As regards the payment of the balance consideration of Rs. 8,00,000/-, the terms in the Agreement also disclosed that before execution of the Sale Deed scheduled for 31.11.1987, the contractual obligation of the Respondent/Defendant No. 1 was for delivering the vacant and khas possession of the upper floor of the building i.e. the first, second and third floor to the appellant. Another stipulation in the Agreement was to the effect that since the property in question was mortgaged to the United Bank of India, as such, the Respondent/Defendant No. 1 shall pay the loan amount and obtain No Objection Certificate from the Bank prior to registration of the Sale Deed. In the plaint, the appellant as the plaintiff urged that pursuant to the Agreement for Sale the Defendant No. 1 had also applied before the Deputy Commissioner, Kamrup on 16.05.1988 seeking permission for sale of the suit property. However, despite grant of the permission by the competent authority, the Respondents/Defendant No. 1 neglected to execute the Sale Deed facilitating conveyance of the suit properties to the appellant. Alleging deliberate breach of contract and the intention of the 4 Respondent/Defendant No. 1 to deprive the appellant of its right to enjoy the suit properties by withholding and/or wilfully avoiding discharge of his obligations under the Agreement for Sale, a Legal Notice was issued on 07.07.1989 addressed to the Respondent/Defendant No. 1 demanding of him to execute the Sale Deed by receiving the balance amount of Rs. 8,00,000/- after obtaining the No Objection Certificate from the United Bank of India. By the said Notice dated 07.07.1989, demand was also made for delivering possession of the first, second and third floor of the building, allowing the Respondent/Defendant No. 1, 30 days time for due compliance. The reply to the said Notice was made by the Respondent /Defendant No. 1 on 02.08.1989 whereby it was indicated that the said Respondent/Defendant No. 1 was not in a position to fulfil the conditions of Clause 6 of the Agreement dated 24.11.1986 as the tenants of the ground floor, first floor, second floor and the third floor of the building had refused to vacate their tenanted premises. It was also stated in the reply that the Agreement dated 24.11.1986 was void, being a Contingent Contract and due to uncertainty the same cannot be enforced specifically. However, the Respondent/Defendant No. 1 indicated that he was ready and willing to refund the advance amount received from the appellant. Considering the stand of the Respondent/Defendant No. 1 the appellant was constrained to institute Title Suit No. 193/1989 for specific performance of the contact for sale dated 24.11.1986 and at the same time stating that the appellant had all along being ready and willing to perform its part of the contract.
3. The suit proceeded against the Respondent/Defendant No. 1 and in so far as Defendant Nos. 2, 3 and 4 are concerned, they did not contest the suit. Written statement was filed by the Respondent/Defendant No. 1 as well as by the United Bank of India, Ulubari Branch, Guwahati, which was arrayed as a proforma defendant.
4. The written statement filed by the Respondent/Defendant No. 1 is more or less a general denial of the statements made in the plaint. It was stated that no amount by way of part payment was made by the appellant/plaintiff and neither the Respondent/Defendant No. 1 had ever parted with the possession of the ground floor of the RCC Building. It was also stated that the appellant was never authorised by the 5 Respondent/Defendant No. 1 to collect the monthly rent from M/s. Star Refri Home (Assam) and until the present time the said business concern was the monthly tenant of the Respondent/Defendant No. 1. In so far as the Agreement for Sale dated 24.11.1986 is concerned, the pleaded case of the Respondent/Defendant No. 1 is that he is an illiterate person and he had been misled and cheated by the appellant. Further, the signature of the Respondent /Defendant No. 1 had been obtained by the appellant/plaintiff by suppressing material facts and by committing fraud, inasmuch as, originally there were no clauses in the Agreement dated 24.11.1986 as shown in paragraph 4 and 5 thereof and the said paragraphs were inserted by the appellant subsequently. It was pleaded that the Agreement is one-sided and is against general conscience and therefore cannot be enforced. It was also stated that as the tenants residing from the ground floor to the third floor of the building were not willing to vacate the tenanted premises, as such, the Respondent/Defendant No. 1 was not in a position to execute a Registered Sale Deed in favour of the appellant/plaintiff. An additional ground was also taken in the written statement to the effect that sale permission in respect of 7 Lechas of land is not permitted under the provisions of the Guwahati Municipal Corporation Act and as such, the Respondent/Defendant No. 1 was also not in a position to transfer the land and building in the name of the appellant. In view of the fact that the Sale Deed was to be executed on or before 31.11.1987 and the same not having been done due to legal impediment and also having regard to the fact that it was a contingent contract, as such, no decree can be passed in favour of the appellant/plaintiff for specific performance of the contract.
5. In the written statement filed by the Proforma Defendant No. 5 i.e. the United Bank of India it was indicated that the property in question had been mortgaged to it and the Respondent/Defendant No. 1 is yet to repay the loan amount in full, which stood at Rs. 2,25,093.73 as on 31.03.1989. The Bank also pleaded that the property in question having been mortgaged to the Bank under Section 66 of the Transfer of Property Act, unless the said loan is fully liquidated and the property is redeemed, the Respondent/Defendant No. 1 was without any right either to sell or to 6 execute any Agreement for Sale in respect of the said property. In the said written statement prayer was also made that the Respondent/Defendant No. 1 be directed to clear the outstanding debts of the party before execution of a Registered Sale Deed in respect of the suit property.
6. The pleaded case of the parties concerned having been noticed, the learned trial Court framed as many as 8 (eight) Issues for adjudication of the suit. The issues so framed are as follows:
1. Whether there is cause of action for the suit?
2. Whether the suit is maintainable in its present form?
3. Whether the suit is barred by law of limitation?
4. Whether the defendant No. 1 being the owner of the suit property entered into a contract with the plaintiff to sale the same for a consideration of Rs. 10,00,000/-?
5. Whether the defendant No. 1 received Rs. 2,00,000/- being part of the consideration money in advance from the plaintiff?
6. Whether pursuant to said contract for sale the defendant No. 1 delivered possession of a part of the suit premises to the plaintiff?
7. Whether the defendant failed to perform his part of contract in respect of sale of the suit property?
8. To what relief; if any, the plaintiff is entitled?
7. During the proceedings in the suit, two witnesses were examined from the plaintiff's side and the Respondent/Defendant i.e. Sardar Charan Singh examined himself as DW1. In so far as the Issue Nos. 1 to 5 are concerned, the learned Trial Court answered the same in favour of the plaintiff/appellant upon due examination of the deposition of the witnesses on either side. The Trial Court found that the Respondent/Defendant No. 1 as the owner of the suit property had entered into a contract with the 7 appellant for sale of the said property for a total consideration of Rs. 10,00,000/-. Also, the Respondent/Defendant No. 1 had received an amount of Rs. 2,00,000/- being part of the consideration money paid in advance by the appellant/plaintiff. In so far as the Issue Nos. 6, 7 and 8 are concerned, the Trial Court answered the same against the appellant/plaintiff. The reasons assigned for such finding was that the PW2 i.e. Deoki Nandan Saraf, the proprietor of M/s Star Refri Home (Assam) had stated in his evidence that earlier he was a tenant under the Respondent/Defendant No. 1 but now he is the Tenant under the appellant/plaintiff. However, the statement of the said PW2 do not find corroboration, inasmuch as, the PW1 i.e. the Sushil Kumar Saraf had in his cross-examination stated that M/s. Star Refri Home (Assam) is still the tenant under the Respondent/Defendant No. 1. The Trial Court also found that for the period from 24.11.1986 until the date of issuance of Notice dated 07.07.1989, the appellant/plaintiff was sitting quiet without taking any steps, implying that the appellant was not ready and willing to perform its part of the contract which he was contractually obliged to do in terms of the Agreement for Sale, exhibited as Ext. 2. Referring to the sequence of events; the Trial Court arrived at the finding that it cannot alone be said that only the Respondent/Defendant No. 1 had failed to perform his part of the contract. The Trail Court while answering the Issues also took note of an additional fact that the Agreement for Sale was executed in the year 1986 and until 2004 the price of the land had gone up many times over during the span of 18 years. The Title Suit was answered by holding that although the appellant had instituted the suit within the period of limitation, but as the appellant had failed to prove his readiness and willingness to perform its part of the contract, as such, the appellant/plaintiff was not entitled to get equitable relief for specific performance of the contract for sale. However, as the Respondent/Defendant No. 1 had received an amount of Rs. 2,00,000/- from the appellant/plaintiff and still retained that amount without executing the Sale Deed, as such, the appellant/plaintiff was entitled to get a decree for release of the said amount from the Respondent/Defendant No. 1 together with interest @ 6% per annum from the date of institution of the suit until the date of realisation of the decretal amount together with the 8 cost of the suit. Accordingly, the suit was partly decreed on contest with cost of the suit on 19.04.2004.
8. Being aggrieved, the appellant have preferred this instant appeal challenging the judgment and decree dated 19.04.2004 passed by the Civil Judge (Senior Division) No. 3, Guwahati in the aforesaid Title Suit.
9. Mr. R. Dubey, appearing for the appellant submits that the findings and decisions of the Trial Court in respect of Issue Nos. 6, 7 and 8 suffers from grave illegality as the same had been passed by misreading the evidence on record. Referring to the finding of the Trial Court in Issue No. 6 that PW1 in his cross-examination had admitted that M/s. Star Refri Home (Assam) was still the tenant under the Respondent/Defendant No. 1, it is contended that the deposition of PW1, on cross, clearly indicates otherwise. What actually transpires from the evidence on record is the statement of PW1 that "it is not true that Star Refri Home is still a tenant under Defendant No. 1". This according to Mr. Dubey goes to the root of the discussion in Issue No. 6 and based on a correct reading of the deposition of PW1, the said issue could not have been held against the appellant/plaintiff. As regards the finding that the appellant/plaintiff was not willing and ready to perform its part of the contract, Mr. Dubey contends that the said finding was arrived at as a matter of course without going into or discussing the roles/obligations of either party as specified in Ext. 2 i.e. the Agreement for Sale. Although the Trial Court had very subtly indicated that the Respondent/Defendant No. 1 had failed to perform his part of the contract, however, there are no discussions whatsoever in respect of any failure on the part of the appellant/plaintiff in discharging its part of the contract. To this end, Mr. Dubey makes reference to the facts as appearing from the evidence on record, more particularly para 6 of Ext. 2, to show that the primary obligation was cast upon the Respondent/Defendant No. 1 that before execution of the Sale Deed he was required to deliver vacant and khas possession of the upper floors of the building and further to liquidate the Bank Loan and to obtain the No Objection Certificate from the said Bank. Reference is also made to the steps taken by the appellant/plaintiff in issuing the Notice dated 07.07.1989 (Ext.-8) whereby demand had been made to the Respondent/Defendant 9 No. 1 for executing the Registered Deed of Sale after obtaining clearance certificate from the United Bank of India. Mr. Dubey contends that the appellant's role in discharging its obligation under the terms and conditions of the Agreement was consequent upon the discharge of obligations by the Respondent/Defendant No. 1 under the said Agreement. The fact that the appellant/plaintiff had all along being ready and willing to perform its part under the contract is apparent and as a matter of fact the appellant had already paid a sum of Rs. 2,00,000/- as part performance of its obligation. Mr. Dubey further contends that the findings in Issue No. 6, 7 and 8 are ex-facie perverse and are not based on the evidence on record.
10. Additionally, Mr. Dubey contends that the Agreement for Sale is not in the realm of a contingent contract as defined under Section 31 of the Indian Contract Act, 1872. Further, the denial of the Trial Court to decree specific performance, although discretionary, the same had been exercised arbitrarily and was not guided by sound, reasonable and judicial principles. It is also argued that the appellant/plaintiff having averred and proved that he is ready and willing to perform the essential terms of the contract which was required to be performed by it, as such the Trial Court could not have legally denied decree for specific performance of the contract, that too, when the evidence clearly showed that it was the Respondent/Defendant No. 1 who had all along been instrumental in deferring the enforcement of the contract in question. Mr. Dubey relies upon following decisions:
i) (2014) 11 SCC 605 [Biswanath Ghosh (dead) by
Legal Representative and Others v. Gobinda Ghosh
Alias Gonindha Chandra Ghosh and Others.]
ii) (2015) 1 SCC 705 [Zarina Siddiqui v. A. Ramalingam
Alias R. Amarnathan.]
iii) (2002) 8 SCC 146 [Nirmala Anand v. Advent
Corporation (P) Ltd. and Others.]
11. On a query of this Court on the enforceability of the Agreement for Sale which is an unregistered document, Mr. Dubey contends that in view 10 of Section 17(1-A) read with Section 53-A of the Transfer of Property Act, 1882, the requirement of registration was not a statutory requirement prior to 24.09.2001 in cases where the transferee has in part performance of the contract been in possession of the property or any part thereof etc.
12. The facts above and the legal principles referred to by Mr. Dubey has been noticed. I have also heard Mr. R.J. Sarma, learned counsel representing the Respondent/Defendant No. 1. Mr. Sarma submits that the judgment and decree under appeal do not suffer from any infirmity and the same was rendered strictly on the basis of the evidence on record.
13. I have perused the pleadings, the evidence and the findings and decisions of the learned Trial Court. With regard to Issue No. 6 which was answered in the negative, it appears without shred of doubt that the deposition of PW1 i.e. Sushil Kumar Saraf had been erroneously recorded. The evidence on record of PW1 do not go to show that in his cross- examination he had stated that M/s. Star Refri Home (Assam) is still a tenant under the Respondent/Defendant No. 1. It also appears from the records that on and from the date of execution of the Agreement for Sale a major portion of the ground floor of the building was enjoyed by the appellant/plaintiff, in that, the rent paid by the PW2 i.e. the proprietor of M/s Star Refri Home (Assam) was not made to the respondent/Defendant No. 1 but to the appellant/plaintiff. On record, the PW2 on cross had deposed that M/s Star Refri Home is assessed by the Income Tax Authority and the Income Tax Returns and Balance Sheet submitted to the ITO shows that monthly rent were being paid by it to the appellant/plaintiff. In that view of the matter the discussion, finding and decision on Issue No. 6 is wholly erroneous and the same could not have been answered in the negative.
14. As regards the discussion, finding and decision on Issue Nos. 7 and 8 are concerned, the Trial Court have recorded a finding to the effect that the Respondent/Defendant No. 1 had failed to perform his part of the contract. However, there are no discussions and findings touching upon any aspect of the matter that the appellant/plaintiff had also failed to discharge its part of the contract. Referring to Clause 6 of the Agreement 11 for Sale dated 24.11.1986 (Ext.-2) the clear postulation was that the balance consideration of Rs. 8,00,000/- will be paid by the appellant to the defendant No. 1 on execution of the Sale Deed and before such execution and payment of the balance consideration, the Respondent/Defendant No. 1 was required to deliver vacant and khas possession of the upper floors of the building to the appellant. Under Clause-7 of the said Agreement, the Respondent/Defendant No. 1 was also required to liquidate the loan amount and to obtain a No Objection Certificate from the United Bank of India prior to registration of the Sale Deed. From the evidence on record of PW1 i.e. Sushil Kumar Saraf, who is a partner of the appellant firm, it appears that after execution of the Agreement for Sale (Ext.-2) he had personally met the Respondent/Defendant No. 1 on a number of occasions and had requested him to pay the dues outstanding to the Bank and to secure release of the suit land and house from mortgage and to execute the Registered Sale Deed in favour of the appellant. It is also on record that the said PW1 had also informed the Respondents/Defendant No. 1 about their willingness to pay the dues and to have the Registered Sale Deed executed at any given time. However, according to PW1, the Respondent/Defendant No. 1 continued to defer from doing anything citing various pretexts. It was under such circumstances that the Notice dated 07.07.1989 was sent to the Respondent /Defendant No. 1. In view thereof, the finding and decision of the Trial Court that the appellant/plaintiff was not willing and ready to perform its part of the contract, as specified in Ext.2, is also an erroneous and perverse finding. Situated thus, it was improper on the part of the Trial Court to have answered the Issue No. 7 in the negative.
15. The point for consideration and decision in this appeal being whether the Trial Court had erred in law in passing the judgment and decree dated 19.04.2004 in Title Suit No. 193/1989 on ground that the same was rendered by misreading the evidence on record, this Court for reasons and findings in the preceding paragraphs holds that the findings and decisions of the Trial Court in Issue No. 6, 7 and 8 have been incorrectly and illegally rendered.
1216. Although no issue was framed on the question as to whether or not the Agreement for Sale dated 24.11.1986 was a "Contingent Contract", this Court nevertheless holds that the Agreement for Sale dated 24.11.1986 do not come within the realm of "Contingent Contract" as defined under Section 31 of the Indian Contract Act, 1872. Section 10 of the Specific Relief Act, 1963 pertains to cases in which specific performance of contract is enforceable. It lies in the discretion of the Court to direct enforcement of specific performance of any contract, amongst others, when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. To make out a case that money for its non-performance would afford adequate relief, the same is to be proved. Else, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. Such discretion of the Court in partly decreeing the suit for realisation of Rs. 2,00,000/- with interest thereon in favour of the appellant/plaintiff is not a discretion validly exercised in terms of the condition precedent under Section 10 of the Specific Relief Act, 1963. Also, having regard to the pleadings and the evidence on record, the Trial Court could not have barred relief for specific performance of the contract to the appellant/plaintiff, inasmuch as, the case of the appellant/plaintiff did not fall under the personal bar enjoined in Section 16(c) of the Specific Relief Act, 1963. Instead, the discretion and power of the Trial Court ought to have been exercised in terms of Section 20 of the said Specific Relief Act, 1963. Although the Trial Court was not bound to grant such relief merely because it was lawful to do so, the discretion of the Court ought to have been exercised on sound and reasonable principles removed from any arbitrariness. The appellant/plaintiff having demonstrated that it had done specific act in consequence of the contract, the Court ought to have exercised discretion in accordance with sub- section (3) of Section 20 of the Specific Relief Act, 1963. It was not open for the Trial Court to refuse the relief for specific performance of the contract merely on the ground that the contract has been claimed to be not enforceable at the instance of the Respondent/Defendant No. 1.
1317. In the case of Biswanath Ghosh (supra) the Apex Court held that the Court should be slow to throw out the claim for specific performance on mere technicality of the pleading if sufficient fact and evidence are brought on record which would show the readiness and willingness of a party to perform its part of the contract. In the said case, the Apex Court after examination of a catena of decisions summarised that the readiness and willingness of a person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfil the obligation and accept the performance when the time for performance arise. In the instant case, the appellant/plaintiff had kept the contract for sale subsisting and also demonstrated its readiness and willingness to fulfil its obligation as to when the time for performance would arrive. In the case of Zarina Siddiqui (supra) the Apex Court have held that it is well settled that remedy for specific performance is an equitable remedy and the Court while granting a decree of specific performance exercises its discretionary jurisdiction. Such exercise of discretion under Section 20 of the Specific Relief Act, however, cannot be arbitrary but must be exercised in accordance with sound and reasonable judicial principles. The equitable discretion is also depending upon the conduct of the parties. No doubt, the necessary ingredient has to be proved and established by the plaintiff in order that the discretion can be exercised judicially in his favour. At the same time it must also be ensured that if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the Court, then such discretion should not be exercised by way of refusing to grant specific performance. In the instant case the conduct of the Respondent/Defendant No. 1 atleast go to show that he tried to mislead the Court by stating that he did not receive any advance from the appellant for the sale of the property in question.
18. Another aspect that weighed in the mind of the Trial Court was that 18 years had elapsed from the date when the Agreement had been executed in the year 1986 and during these years the price of the land had gone up many times over. In this connection and as held by the Apex Court in the case of Nirmala Anand (supra) that ordinarily the plaintiff is not to 14 be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of the litigation. While balancing the equities, one of the consideration that is required to be kept in view is as to who is the defaulting party. Also, it should be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. The Apex Court held that while balancing the equities the totality of the circumstances is required to be seen. At this stage, Mr. Dubey, upon clear instructions of his client, submits that indeed the value of the property have increased over the period of time. The total consideration of Rs. 10,00,000/- was fixed way back in the year 1986. Mr. Dubey contends that his client is ready and willing to pay 12% interest on the balance amount of Rs. 8,00,000/- to which the Respondent/Defendant No. 1 is entitled to upon execution of the Sale Deed w.e.f. 30.11.1987, which was the date scheduled for execution of the Sale Deed under the terms of the Agreement for Sale dated 24.11.1986. Mr. Dubey, also submits from instructions that the Bank Loan has also been liquidated by the Respondent/Defendant No. 1 by this date.
19. Having heard the learned counsel for the parties and after going through the materials on record and also noticing that the suit is of 1989, this Court, in exercise of its appellate powers and being satisfied that the evidence on record is sufficient to enable this Court to pronounce judgment and decree, allows the present appeal by reversing the judgment and decree dated 19.04.2004 passed in Title Suit No. 193/89. Accordingly, decree is passed for specific performance of the Agreement of Sale dated 24.12.1986 (Ext.-2) with direction to the Respondent/Defendant No. 1 to execute a Registered Sale Deed in respect of the suit properties described in the Schedule to the plaint and to deliver possession thereof to the appellant. The appellant is also directed to make payment of Rs. 8,00,000/- together with interest @ 12% per annum w.e.f. 30.11.1987 to the Respondent/Defendant No. 1 on or before the date of execution of a Registered Sale Deed in respect of the suit properties.
1520. The Title Suit No. 193/1989 is decreed on contest for which a decree is to be accordingly drawn up. Having regard to the facts of the case, there shall be no order as to costs.
21. The appeal stands allowed to the extent indicated above.
sds JUDGE