M.V. KRISHNAMURTHY Vs. SRINIVASU AND ANOTHER

JUDGEMENT

(1.) This is plaintiffs appeal from the judgment and decree dated 3-2-1997 passed by the I Additional City Civil Judge, Bangalore, in O.S. No. 5118 of 1980 dismissing the plaintiffs suit.

(2.) The facts of the case in brief are that view agreement dated 7-4-1972 entered arrived at and executed by the plaintiff and the defendants, plaintiff agreed to purchase and the defendants agreed to sell the plaint schedule property as described in the schedule for a sum of Rs. 8,000.00. According to the plaintiff/appellant's case, 1st defendant obtained the consent of the 2nd defendant to sell the plaint schedule property to the plaintiff/appellant and according to the plaintiff, the defendant 2 joined in execution of agreement of sale. According to the plaintiff/appellant, he had paid a sum of Rs. 1,000.00 in advance towards the part of the sale consideration and it was also provided as per the terms of the agreement to sell that out of the sale consideration of Rs. 8,000.00, Rs. One thousand has already been paid in advance and Rs. 3,000.00 has to be paid to the mortgagee S. Nagaraju and balance of Rs. 4,000.00 has to be paid to the owner-defendant 1 within three months before the Sub-Registrar. The plaintiff/appellant's case is that he approached the defendants i.e., respondent's with money and asked them to execute the sale deed and to perform the agreement. But, the defendants avoided. The plaintiff has alleged in the plaint that he has always been ready and he is still willing to perform his part of the contract of which defendants have the notice. With these allegations, the plaintiff filed the above suit and sought the reliefs as under. The plaintiff claims that the Court may order the defendants and particularly, the 1st defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the schedule property and to pay the costs of the suit. He also prayed that any other reliefs which the Court deems fit, may also be granted.

(3.) The defendant/respondent 1 filed the written statement. He has, in paragraph 2, very clearly stated that, it is true that the defendant had entered into agreement to sell the suit schedule property to the plaintiff vide agreement dated 7-4-1972. But he denied that he had obtained the consent of defendant 2 for sale of schedule property. The defendant 1 asserted that the defendant 2 had joined and signed the deed not as a party to the sale deed, but only as a witness attesting the agreement. The defendant admitted that earnest money of Rs. 1,000.00 was paid to hint. He asserted that he had received only Rs. 1,000.00 towards advance and Rs. 3,000.00 is payable to the defendant 2 in terms of conditions of mortgage deed dated 25-2-1972 and balance to the defendant. The defendant pleaded that at the time of contract, the plaintiff had not performed his part of contract within three calendar months from 7-4-1972 namely on or before 7-7-1972. The defendant alleged that the plaintiff failed to perform his part of contract and notice dated 11-7-1972 had been issued to coerce the defendant to perform terms of contract. The defendant/respondent 1 denied to have committed breach of contract. He alleged that the plaintiff is the erring party as the plaintiff has not performed his part of contract and he is not entitled to decree for specific performance of agreement to sell dated 7-4-1972. The defendant denied that the plaintiff is or has been ready to perform his part of contract.