JUDGEMENT
SHEKHER DHAWAN,J. -
(1.)Present regular second appeal having been filed by
the defendant is against judgment & decree dated 21.1.2013, passed by the
First Appellate Court, whereby appeal was partly accepted and impugned
decree was passed in a suit for specific performance, whereas the Court
of first instance dismissed the suit for proprietary possession as
mortgagee by way of specific performance of agreement dated 10.4.2003.
(2.)For the sake of convenience, parties are being referred to as per their status before the Court of first instance.
(3.)Relevant facts of the case that plaintiff -Santokh Singh had filed suit for proprietary possession as mortgagee by way of specific performance of
agreement dated 10.4.2003 of the suit land. As per plaintiff, payment of
Rs. 74,000/ - was made to the defendant on the date of agreement and the
total sale consideration was Rs. 80,000/ -. The stipulated date for
execution and registration of the mortgage deed was 5.4.2006 and in case
of default in payment by the defendant, plaintiff would be entitled to
enforce the agreement through Court of law and to recover Rs. 1,28,000/ -.
Defendant contested the suit taking the plea that plaintiff concealed the
material facts from the Court and there was no cause of action. Defendant
also took the plea that neither agreement of mortgage of the suit land
was executed on 10.4.2003 nor earnest money of Rs. 74,000/ - was received
and plaintiff was not entitled to enforce the agreement and to recover
Rs. 1,28,000/ -. Defendant had never delivered possession of the suit
land. Rather defendant is in possession of the same. As defendant never
entered into agreement with the plaintiff, so there was no question of
readiness and willingness to perform his part of the agreement of
mortgage and prayed that present suit be dismissed.
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