PARVATHI AMMAL Vs. M. DHANA PAUL

JUDGEMENT

(1.) THE original defendants l(a) and l(b), (later treated as defendants 2 and 3) in O.S. No. 15523/2002 on the file of XVIII Addl. City Civil Court, Mayohall, Bangalore, have filed this appeal against the judgment and decree passed in the said suit on 20th of December 2005. For the sake of convenience, the parties are referred to as per their respective ranks before the trial Court,

(2.) THE case of the plaintiff (respondent herein) is that, Late Mr. P.T. Perumal (original defendant) was the absolute owner of the residential property bearing New No. 4 (Old No. 6), Madhava Mudaftar Street, Ulsoor, Bangalore -08, measuring East to West 32f and North to South 45', more fully described in the suit schedule. The suit property consists of old building comprising of four tenements. Mr. Perumal acquired the said property through registered Sale Deed dated 28tn December 1987. The defendant desired to sell the suit property, hence he represented to the plaintiff that in order to meet his domestic and other legal necessities, he intended to sell the suit property for consideration of Rs. 13 lakhs. The plaintiff agreed to purchase the same for the said consideration. Accordingly, the plaintiff and defendant entered into an agreement dated 6.12.1998 and under the said agreement, plaintiff paid a sum of Rs. 1,20,000/ - to the defendant. It was agreed that the sale transaction shall be completed within 11 months from the date of transfer of khata of the schedule property in the name of defendant and taxes paid up to the date. Since the property had three different tenants, plaintiff agreed to pay the balance sale consideration of Rs. 11,22,000/ - to the defendant only when the defendant hands over all the four vacant portions of the schedule property. The defendant executed the Power of Attorney in favour of PW -2 Mr. Ranganath as per Ex. P2. The sale transaction could not be completed within the stipulated period of 11 months as the defendant could not get the tenants vacated within the said period. The defendant sought further time to register the sale deed by getting the tenants vacated. The plaintiff paid further amounts of Rs. 80,000/ - on 12.6.1999, Rs. 1 lakh on 15.11.1999 and Rs. 1,25,000/ - on 13.8.2000. Subsequently, on the request of the defendant, the plaintiff paid additional sum of Rs. 2,95,000/ - by executing another agreement dated 18th September 2001 which is registered in the office of Sub -Registrar, Shivajinagari Bangalore. The said agreement was not executed by Mr. Perumal, but by his power of attorney holder (PW -2). Thus, in all, a sum of Rs. 7,20,000/ - was received by the defendant as on 18th September 2001. Under the said agreement dated 18th September 2001, again the parties agreed to complete the sale transaction within 11 months from that date and the plaintiff agreed to pay the balance sale consideration of Rs. 5,80,000/ - within the said stipulated period. However, during the interregnum, the defendant, due to his old age and ill -health, pleaded for some more funds to meet his necessities and consequently, the plaintiff paid a further sum of Rs. 3,80,000/ - to the defendant on the condition that the defendant should put the plaintiff in vacant possession of the entire suit schedule property to the plaintiff within one month, failing to do so, the defendant shall be liable to pay damages to the tune of Rs. 2,000/ - per day, which shall be deducted from out of the sale consideration, The defendant agreed to the said condition. Accordingly, the parties entered into another agreement dated 15th November 2001. It is further case of the plaintiff that the original agreements dated 6.12.1998 and 15.11.2000 and the receipts were lost by the plaintiff, but by then, he had obtained retained the attested copies of the agreements and receipts. To the said effect, the plaintiff issued public notice in the Sunday Express news paper and Kannada Prabha on 30th of December 2001. He also lodged the complaint to the police alleging loss of original documents. However, defendant did not come forward to execute the sale deed in favour of the plaintiff and hence the plaintiff was constrained to issue legal notice dated 29.12.2001 calling upon the defendant to execute the sale deed. Though the said notice was served on the defendant, no reply is issued by him to the plaintiff. Thereafter, a suit came to be filed for specific performance.

(3.) BASED on the pleadings, the following issues were raised by the trial Court.