Heard learned counsel for the defendant appellant and learned counsel for the plaintiffs respondents first set, who has appeared through caveat at the admission stage. Learned counsel were also heard on 22.02.2012.
This is one of the defendants' second appeal arising out of O.S. No.328 of 1990 which was filed by Nanayee Singh against Bishwanath. Appellant is son of Bishwanath and proforma respondents No.2 to 8 are wife, daughters and other sons of Bishwanath. Respondents No.1/1 to 1/8 are sons of Nanyee Singh original plaintiff.
The suit was filed for specific performance of an agreement for sale executed by Bishwanath in favour of Nanyee Singh on 22.08.1989. Agreed sale consideration was Rs.45,000/- out of which Rs.44,000/- had been paid as earnest money. Only Rs.1000/- remained to be paid as balance sale consideration. Sale deed was to be executed within a year. The suit for specific performance of the agreement for sale was decreed on 13.08.1999 by Civil Judge, Senior Division, Deoria. Against the said decree original defendant filed Civil Appeal No.71 of 1999, which was dismissed on 10.11.2011, hence this second appeal.
The argument of learned counsel for the appellant that plaintiff was not ready and willing to perform his part of the agreement is not at all convincing. The main argument is that plaintiff did not prove that he had the money. Almost entire sale consideration (about 97%) had been paid as earnest money and only Rs.1000/- were to be paid more. Accordingly, it cannot be accepted that he was not having money to pay balance sale consideration or that he did not have money to bear expenses for execution of the sale deed. Learned counsel for the appellant has referred to the oral statement of the plaintiff, copy of which is Annexure-IV to the affidavit filed in support of stay application in this second appeal. There is nothing in the said statement, which can show that plaintiff was neither having money nor was in a position to arrange for the money. Both the courts below after thorough examination of the evidence rightly held that plaintiff was ready and willing to perform his part of the agreement. Agreement was also found to be proved.
Accordingly, I do not find any substantial error in the impugned findings.
However as the suit was decreed after 10 years of the execution of the agreement by the trial court and appeal also remained pending for 11 years before the lower appellate court hence in view of Supreme Court authority reported in Pratap Lakshman Muchandi Vs. Shamlal Uddavadas Wadhwa AIR 2008 SC 1378 it was essential for the courts below to direct payment of some more amount to the defendant by the plaintiff.
On 22.02.2012 in terms of Section 89, C.P.C., I suggested to the learned counsel for the plaintiffs respondents that an additional amount of Rs.1 lac should be paid by the plaintiffs. Sri S.A. Lari, learned counsel for the respondents sought time to consult his clients. Today Sri S.A. Lari learned counsel categorically states that plaintiffs respondents have accepted the suggestion of the court and are ready to pay Rs.1 lac more.
Accordingly, findings recorded by the courts below and the impugned decree are substantially affirmed. However the impugned decree is varied only to the extent of payment of Rs.1 lac more. This amount of Rs.1 lac in addition to balance sale consideration of Rs.1000/- if not already deposited shall positively be deposited within three months and on such deposit being made the sale deed shall immediately be executed by the executing court. After execution of the sale deed the amount of Rs.1 lac deposited by the plaintiffs respondents shall be paid to the appellants. In case the amount of Rs.1 lac (or Rs.1,01,000/- as the case may be) is not deposited within three months then the agreement and the impugned decree shall stand rescinded under Section 28 of Specific Relief Act.
Second appeal is decided/ disposed of accordingly.
Order Date :- 24.02.2012 NLY