ARJUNDAS PARASURAM Vs. C V KESAVAMURTHY

JUDGEMENT

(1.) This appeal by the plaintiff is directed against the judgment and decree dated 11-4-1974 passed by the Second Additional District Judge, Bangalore, in R. A. No. 39 of 1973, on his file, modifying the judgment and decree dated 27-2-1973 passed by the Principal Civil Judge, Bangalore, in OS No. 102 of 1971, on his file, and reducing the quantum of damages granted by the learned Civil Judge.

(2.) The plaintiff instituted a suit, for damages claiming total damages of Rs. 12,265 from the defendants on the ground that the defendants committed breach of contract, namely, an agreement to sell the suit land. The plaintiff has averred that on or about 26-4-1948 a vacant piece of land then bearing Municipal No. 16 situate in Kumara Park East Extension, Bangalore City, was purchased by defendant-5 (Firm) of which defendants 1 and 2 were partners. Defendant-5 (Firm) put up two buildings on the said site - one of them being a block of buildings consisting of 4 flats bearing Municipal NoS. 8, 9, 10 and 11 on the eastern portion of the vacant land and the other building which was put up on the western portion is a residential bungalow bearing Municipal No. 12. Defendant-2 retired from the Firm (defendant-5). But defendats 3 and 4 joined the Firm as partners subsequently. On 12-10-1970, defendants land 3 represented to the plaintiff that the defendants wished to sell the block of buildings bearing Municipal Nos. 8, 9, 10 and 11 and the vacant space in front and they agreed to sell the same to the plaintiff for Rs. 1,94,000 net, and, pursuant to the agreement, received a sum of Rs. 10,000 from the plaintiff and executed a receipt for the same. The agreement was actually drawn up and executed on 20-10-1970. According to the agreement, the balance of consideration of the sale was to be paid by the plaintiff within a period of three months from the date of the agreement and a regular sale deed was to be obtained from the defendants. The defendants agreed that if they failed to execute the sale deed, they would refund the sum of Rs. 10,000 together with an additional sum of Rs. 10,000 for damages for breach of contract. The defendants were bound to make available all the title deeds in respect of the property. They did not make available the same to the plaintiff and, accordingly, the plaintiff got issued a lawyer's notice calling upon the defendants to make them available. Some time was extended by mutual agreement to make them available. On 23-2-1971, the plaintiff was served with a letter from the defendants enclosing a power of attorney authorising defendant- 1 to sell his right in the property by defendant-2 Soon after the receipt of the letter, the plaintiff got drafted, according to him, a sale deed purporting to be a sale deed of the western portion of the property consisting of the two flats on the western side in the name of his wife as his nominee and the other half being on the eastern side to be conveyed in the name of the plaintiff. In that draft sale deed, however, the plaintiff made it clear that the defendants had to make arrangement for leading the water falling from the roof of the building of the defendants away from the buildings to be sold. He further included a clause that the window in the building of the defendants opening on the premises to be sold to the plaintiff should be closed. He further stipulated that a small strip of land leading to the garages should also be included in the sale deed and he further stated in the notice issued that in case the defendants were not ready to agree to the terms and sell the land, they should return Rs. 10,000 paid as earnest money. The defendants, however, were not agreeable for the additional terms imposed in the draft sale deed and they returned Rs. 10,000 paid to them as earnest money on 3-4-71 through their Advocate by means of a cheque. The plaintiff encashed this cheque without prejudice to his right to claim damages for breach of contract. On these averments, the plaintiff has asserted that the defendants have committed breach of contract to sell the land and, as such, he instituted the suit for damages for breach of contract. He claimed by way of damages the following amounts:

(3.) The suit was resisted by defendant-5 (Firm) by filing its written statement. According to the defendants they were ever ready and willing to perform their part of the contract. It was the plaintiff who backed out by trying to vary the terms of the contract originally entered into. In fact, the defendants even agreed to make adjustments with regard to water flowing from the roof immediately the sale deed was executed. With regard to the space leading to the garages, they pointed out that there was no such agreement to sell the space. There was no access to the garages from the residential premises to the plaintiff. The window referred to in the plaint was the window of the kitchen of the residential house of the defendants. It was the main source of light and air to that portion of the building and it abutted the open space in front of the building agreed to be sold to the plaintiff. There was no agreement to close the window originally and the plaintiff could not plead for variance of the contract. Hence, the defendants were Mot agreeable to make changes in the contract originally entered into. Unless the variations in the contract were agreed to by the defendants, the plaintiff was not ready and willing to purchase the premises as agreed to. That way, they contended that it is the plaintiff who committed breach of the contract and not the defendants. On that basis, the defendants made out a counter claim by way of damages. They claimed that they had to pay interest on Rs. 1,00,000 borrowed from the Syndicate Bank since the plaintiff failed to purchase the premises as agreed upon. Under that head, they claimed Rs. 3,750 towards interest by way of damages. They further claimed Rs. 250 given to the broker, Rs. 250 towards drafting charges and Rs. 50 towards notice charges. Thus, in all they claimed Rs. 4,300 by way of damages from the plaintiff and they paid Court-fees upon the same. The other defendants adopted the written statement.