- (1.)-THIS second appeal is listed for admission. Record was summoned at the time when the appeal was filed and both the Counsels are agreed that this appeal may be decided at the stage of admission itself.
(2.)SRI H. N. Singh Advocate appears for the defendant-appellant and Sri Rajeev Mishra Advocate for the plaintiff-respondent.
(3.)THE facts giving rise to the dispute are that an agreement to sell in respect of plot No. 15 having an area 1 bigha, 18 biswa and 12 dhoor was executed in favour of the plaintiff-respondent for a consideration of Rs. 1,17,000/- on 4. 9. 1991. The earnest money paid was Rs. 15,000/ -. There was a specific recital in the agreement that since the plaintiff-respondent was not in possession of the entire sale consideration, the sale deed will be executed by 30. 4. 1992 after payment of the remaining amount of Rs. 1,02,000/ -. It was further agreed that in the event, either party fails to perform its part within the stipulated period, then the plaintiff will be entitled to deposit the remaining money i. e. Rs. 1,02,000/- in the Court and get the sale deed executed which will not be objected by the defendant-appellant. It was further agreed that the possession will be handed over after execution of the sale deed. The plaintiff-respondent instituted Original Suit No. 118 of 1994 on 3. 9. 1994 for specific performance. The assertion in the plaint was that a notice for executing the safe deed was given by the plaintiff on 2. 8. 1994 by registered post asking the defendant-appellant to execute the sale deed after payment of balance consideration of Rs. 1,02,000/- on 25. 8. 1994 in the Registrar office. The defendant failed ' comply with the notice hence the suit was instituted. The defendant-appellant filed his written statement. The execution of the agreement to sell on 4. 9. 1991 was admitted. It was also admitted that the time frame for getting the sale deed executed was 30. 4. 1992 but since the plaintiff was not willing to get the sale deed executed within the time frame, she can not get the relief claimed and the defendant cannot be compelled to execute the sale deed. Additional plea taken by the defendant was that he was in need of money at the relevant time when the agreement was entered into as he was negotiating to purchase another land but since he did not have enough money, he offered his land to sell which was adjacent to the land of the plaintiff. He had borrowed Rs. 15,000/-, the date in the agreement to sell was 30. 4. 1992 but the plaintiff failed to get the sale deed executed. Whenever the defendant approached her, she was short of funds and, therefore, the sale deed could not be executed. The notice given on 2. 8. 1994 was much beyond time i. e. two years and four months and, therefore, the plaintiff was not entitled to the relief claimed in the plaint. The Trial Court framed as many as five issues and finally decreed the suit by judgment and decree dated 4. 9. 1998. The appellant preferred First Appeal No. 17 of 1999 in the Court of District Judge, Bhadohi at Gyanpur. The Lower Appellate Court framed additional issue No. 6 which reads as under; "issue No. 6.-Whether the terms of the contract was violated, if yes, its effect on the contesting parties?"