DEVENDRA BASAPPA DODDANNAVAR Vs. PONUBAI

JUDGEMENT

(1.) The plaintiff in O.S. NO.403 of 1962 on the file of the if Additional Munsiff, Belgaum, is the appellant. He filed his suit for specific performance of an agreement for sale. This agreement is dated 20-8-1959 and marked Ext.49. His case is that according to the agreement, the sale transaction had to be completed within two months from the date of the agreement. The time was extended by 15 days more i.e. upto 26th October, 1959. On 26th October, 1959, the plaintiff alleges that he waited for the defendants to complete the transaction. But, they did not do so. Therefore, he sent a telegram on 26-10-59 and followed it up with a letter informing the defendants on the plaintiff's willingness to take the sale deed and calling upon them to execute the deed. The telegram and the letter did not fetch any reply. But, on 9-11-1959, a telegram marked Ext.55 was sent by the defendants stating that the plaintiff did not complete the sale deed and they are not responsible. Thereafter, the plaintiff sent the letter dated 11-11-1959 marked Ext.57 requiring the defendants to intimate to him the time and date when the defendants would execute the sale deed. They also complained that the defendants have failed to execute the sale deed though the plaintiff is always willing to take it. The plaintiff called upon the defendants to pass the sale deed and to fix the date and time when and where he should see the defendants to take the sale deed. He also indicated that in the event of failure to comply with the demand, he would file a suit. The plaintiff got a reply Ext.58 stating that he should stop further unnecessary correspondence with the defendant. In spite of waiting for a long time, the defendant has failed to keep up the terms of the contract and execute the sale deed. The plaintiff also says that he has kept the remaining sale price ready and that he is willing and ready to perform his part of the agreement. He mentions that the cause of action for the suit arose on 14-11-959 when the defendant's letter Ext.58 was received asking the plaintiff not to correspond with him any further. The plaintiff, therefore, sought the relief for specific performance. In the alternative, he made a prayer that in the event of this Court not being inclined to grant r decree for specific performance, he may be granted a decree for damages amounting to Rs.4,700.

(2.) The second defendant who has been taking an active part in this agreement has filed a written statement and the 3rd defendant has adopted the same. The other defendants are ex parte. It may be mentioned that the 1st defendant is the widow of one Tuljansa and the defendants 2 to 5 are his sons. Defendants 6, 7 and 8 are the daughters of the deceased. Consequent on the death of Tuljansa, the defendants 6, 7 and 8 have also been impleadcd to this suit.

(3.) The defendants do not dispute the execution of the agreement dated 20-8-59 and also the extension of time as evidenced by the endorsement dated 19-10-59 of Ext.49. The defendants plead that the time was the essence of the contract under the agreement for sale. By mutual consent, the time for completion of the contract was extended upto 26-10-59, all other terms of the agreement continuing as before. It is pleaded that it was agreed amongst the parties that they have to meet at the office of the writer on 27-10-59 and get the sale deed written by him and that the plaintiff was to pay and purchase general stamp paper and also meet the registration expenses in accordance with the agreement. He was also to pay the balance of the agreed price before the Sub Registrar and get the document registered. It is further alleged that the defendants waited in the office of the writer and the plaintiff turned up and wanted the document to be executed in favour of the plaintiff's wife and the defendants readily agreed to do the same. After this, the plaintiff left the place and did not turn up on that day. When the defendants returned home, they found a telegram issued by the plaintiff which is marked Ext.53. The defendants also state that they have made an application to the Chairman, Gram Panchayat Committee as desired by the plaintiff relating to an open space for the purpose of road. The defendants allege that they were ever ready and willing and earnest to complete the agreed sale transaction before and on 26-10-59. They stated that as a matter of grace, they extended time for completing the transaction upto 9-11-59. The defendants also admit having received the letter Ext.57 and having replied to the same as per Ex.58 on 13-11-1959. The defendants state that the plaintiff never seriously intended to complete the transaction, but merely went on carrying correspondence without any intention to carry out the agreement. They say that the correspondence emanating from the plaintiff was merely a pretence to keep alive the plaintiff's claim and hide his unwillingness to fulfil his part of contract. The defendants plead that the plaintiff is now induced to file the suit as the prices of building sites in the locality have been rising to a considerable extent. He is trying to get a wrongful gain and dishonest advantage by the present false claim. They deny the right of the plaintiff to get specific performance or to damages or to any other relief in this suit. On the basis of these pleadings, the trial Court framed several issues. It is stated by both the parties that the first issue framed by the trial Court is unnecessary. The second issue relates to whether the deceased Tuljansa and defendants 2 to 4 committed breach of contract to execute the sale deed and the fourth issue is whether the plaintiff committed breach of contract as averred by defendants 2 and 3. The third issue is whether the plaintiff is entitled to specific performance for the sale agreement dated 20-8-1959. The trial Court found in favour of the plaintiff on these issues referred to above. No question of considering the alternative relief arose. As a result of the findings the trial Court decreed the suit. Against this, the contesting defendants 2 to 4 preferred RA. No 47 of 1968 on the file of the Civil Judge, Belgaum. The learned Civil Judge set aside the decree of the trial Court and allowed the appeal with costs thus dismissing the plaintiff's suit. Against this judgment and decree of the lower appellate Court the plaintiff has preferred this second appeal.