DEEPAK RAJANI Vs. K B PAMPATHI

JUDGEMENT

(1.) This appeal is filed by the plaintiff in O.S.No.8621/1995 on the file of XI Addl. City Civil Judge, Bangalore being aggrieved by the judgment and decree dated 31-10-2003 insofar as dismissal of the relief of specific performance.

(2.) The material facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows: O.S.No.8621/1995 was filed by the appellant herein against the respondents-defendants-1 to 3. Defendants-2 & 3 are the children of defendant No.1 and they constitute the joint family. Defendant No.1 was the kartha of the joint family. THE joint family own premises bearing No.17/1 situated at 4th cross, Shankarapuram, Bangalore-4 morefully described in the schedule. THE joint family incurred a loan in the State Bank of India, Shankarapuram Branch and also raised a loan from one Sri H L Sridhara Murthy as the joint family has been badly in need of some funds for their legal necessity and family benefit. Hence, the defendants offered to sell the schedule property and the plaintiff offered to purchase the same and agreement of sale was executed in that behalf. It is also averred that defendant No.1 had entered into an agreement of sale with one Sri M S Palani Chamy and received an advanced of Rs.1,67,000/- and out of the said amount, defendants discharged the mortgage loan in favour of H.L. Sridhara Murthy by means of registered document dated 18-1-1992 and the said M.S. Palani Chamy agreed to give up his right, title and interest acquired under the agreement by receiving back the advance amount paid by him. At the instance of the said M.S.Palani Chamy, defendants herein entered into an agreement of sale with the plaintiff on 10-11-1994 agreeing to sell the schedule property in favour of the plaintiff free of all encumbrances, for a valuable consideration at the rate of Rs.650/- per sq.ft. and the total amount works out to Rs.20,28,000/-. THE defendants received from the plaintiff in all, a sum of Rs.9,55,000/- as advance on various dates, out of which, defendants have received a sum of Rs.3,10,000/- by way of Pay Order issued by the Indian Bank, Ulsoor Branch infavour of defendant-1, a sum of Rs.90,000/- was paid by means of a cheque bearing No.850505 drawn on Indian Bank, Ulsoor Branch and a sum of Rs.2 lakhs was paid to M.S.Palani Chamy for and on behalf of the defendants in full and final settlement of the claim under the agreement dated 4-1-1992 while canceling the agreement by means of Pay Order No.575954 issued by the Indian Bank, Ulsoor Branch, a sum of Rs.3 lakhs was paid by means of a Pay Order issued by the State Bank of India, Rajajinagar Industrial Estate Branch bearing No.528943 dated 9-11-1994 and a sum of Rs.55,000/- was paid in cash, in all, total amount of Rs.9,55,000/- was paid to the first defendant towards part consideration of Rs.20,28,000/-. THE defendants agreed to execute the sale deed and register the same within two months from the date of the agreement. Since the defendants committed breach of the contract, the plaintiff issued a notice claiming that he is ready and willing to perform his part of the contract and that he should execute the registered sale deed as per the agreement dated 10-11-1994. Since the said request was not heeded to, suit was filed for the following reliefs:

(3.) Having regard to the pleadings, following issues were framed: (1) Whether the plaintiff proves that the defendant on behalf of himself and defendants-2 & 3 entered into agreement of sale dated 10-11-1994 agreeing to sell the suit schedule property for the consideration amount of Rs.20,28,000/-' (2) Whether the plaintiff proves that the defendants have committed the breach of the agreement of sale' (3) Whether the plaintiff proves that he was ever ready and willing to perform his part of the contract' (4) Whether the plaintiff is entitled to the relief of specific performance of the agreement of sale' (5) Whether defendants-2 & 3 proves that it is not binding upon their share as they have not agreed to sell their shares' (6) What decree or order'