K. ANANTHI KUMAR Vs. S. GOPAL

JUDGEMENT

(1.) THIS is plaintiffs appeal against the judgment and decree of the trial Court which has dismissed the suit of the plaintiff for specific performance of the agreement of sale.

(2.) FOR the purpose of convenience the parties are -referred to as they are referred to in the original suit.

(3.) THE defendant purchased the schedule property from the said Nanjappa under a registered sale deed dated 28.11.1993 for a consideration of Rs. 98,000/ -. He was put in possession on execution of the sale deed. In the middle of 1986 the defendant approached the husband of the plaintiff and informed him that he has purchased a lodge by name of Sunbeam Lodge which Is presently known as Srinidhi Lodge for which he is in need of certain amounts and accordingly, sought, for financial assistance. The brother of the defendant by name S. Namyan was known for several years to the husband of the plaintiff. The plaintiff and her husband along with her minor son issued three cheques totalling to Rs. 1,75,000/ - drawn on the Syndicate Bank, Gandhinagar Branch, Bangalore. The said cheques were duly encashed by the defendant, The understanding was the said amount is to be returned by the defendant, within a period of three months and it is to be treated as hand loan in order to augment the purchase of the lodge by the defendant. The defendant did not keep up his promise. In those circumstances, the defendant made an offer to the plaintiff and her husband to sell the schedule property. He also promised that he would get the power of attorney executed in her favour from H.M. Nanjappa since he was not in a position to return the loan amount. The plaintiff was not. keen, but was prevailed upon by the defendant that in view of the feet that her husband was keen of setting up a garage and a service station, the said property would be made use of. Accordingly, the defendant got Mr. Narayan executed the power of attorney in favour of the plaintiff. Defendant also agreed to obtain the permission from the Urban band Ceiling Authority and also the income tax clearance certificate and also encumbrance certificate in order to facilitate the registration of the absolute sale deed in favour of the plaintiff since the katha of the suit schedule property stood in the name of Narayari. The defendant promised that pursuant to the sale in favour of the plaintiff it would be the duty of the defendant to have the katha transferred in favour of the plaintiff and that necessary steps would be taken to obtain the signature of Sri. H.N. Narayan in order to have the same done. The plaintiff was also promised by the defendant that the sale deed would be executed after 4.3.1982 In the event of failing to comply with the formalities as stated earlier. The defendant sought to go back on his promise and did not get necessary permission as agreed upon in respect of the lease period being over. He was in no mood to get the sale deed executed in favour of the plaintiff as agreed under the agreement of sale. The defendant had in the agreement of sale agreed to get the no objection certificate within the period of six months. When he did not obtain the no objection certificate, the plaintiff was left with no other alternative but to get. issued the legal notice dated 14.9.1987 calling upon the defendant to execute the sale deed after obtaining the necessary documents and the no objection certificate from the BDA. The said notice was duly received by the defendant and after receiving the said notice, the defendant sought for time on 29.9.1987. Subsequently, the defendant approached the plaintiff and held out assurances that he would comply with the demands made in the legal notice, but did not choose to do so. After the period of five months he got issued an untenable reply on 25.2.1988. The plaintiff clarified the same vide rejoinder dated 14.3.1988. The said rejoinder was duly received by the defendant and after receiving the same, a reply was sent on 7.4.1988. There was no need for the plaintiff to send further reply in view of the fact that no new issues were raised in the reply. The defendant in the meanwhile was trying to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. In the circumstances, she had to approach the Station Officer, Ramakshipalya police station. They issued an endorsement stating that the matter was of civil nature and they were unable to help. The plaintiff submits after being put in possession she has Invested lot of money on the suit schedule property and is carrying on the business which is the only means of livelihood for herself and her family since her husband who is looking after the day -to -day management of the said business. After waiting for sufficient time, on 8.8.1992 the plaintiff got issued one more notice calling upon the defendant to execute an absolute sale deed in her favour since the lease period was coming to an end on 4.3.1992. The husband of the plaintiff met the defendant a week prior to the issue of the legal notice and in view of the tenor of the talk of the defendant the plaintiff got an impression that the defendant was trying to retrace his steps. In the said legal notice she has expressed her readiness to pay the balance sale consideration of Rs. 4,00,000/ - and called upon the defendant to obtain necessary certificate from the Urban Land Ceiling Authority, encumbrance certificate within one week from the date of notice and after hearing the defendant, the plaintiff would furnish the draft sale deed, The plaintiff also informed the defendant that on his failure to comply with the demands made she would be left with no other choice but to seek for specific performance of the agreement of sale dated 18.3.1987. The defendant caused a reply to the legal notice on 28.3.1992. On 1.6.1992, a rejoinder was issued, A public notice also came to be issued when an attempt was made by the defendant to alienate the property. Therefore, the plaintiff was constrained to file the suit for the specific performance of the agreement of sale. After service of summons the defendant entered appearance and filed the detailed written statement., They did not dispute the allotment of the site by the BDA to Nanjappa and Nanjappa executing the sale deed in favour of the defendant and in -turn entering into an agreement to sell the schedule property to the plaintiff for a consideration of Rs. 4,75,000/ - and also the receipt of Rs. 75,000/ - under the agreement of sale as an advance. They denied the payment of Rs. 1,75,000/ - as a hand loan as set out in the plaint. The agreement of sale itself clearly shows how the defendant has become the owner of the schedule property. The defendant has produced before the plaintiff not only the possession certificate, but also the conditional sale deed executed by the BDA in favour of the Nanjappa and also the sale deed executed by Nanjappa in favour of the defendant apart from other connected records. Having verified all the documents knowing fully well the conditions imposed by the BDA, the plaintiff has agreed to purchase the property. The defendant has to obtain the certificate from the Urban Land Celling Authority and Income Tax clearance certificate, but the plaintiff did not have funds to purchase the property as she did not have Rs. 4,00,000/ -. Purposely, she did not furnish the draft sale deed to produce before the Income Tax Authorities in spite of repeated request, Instead of complying her tinder the contract notices were issue done after the other. It is specifically averred in the written statement that the plaintiff did not have money to pay and in order to postpone the execution of the sale deed, all sorts of allegations were made against the defendant. They denied the allegation made regarding extension of time as averred in para 9 of the plaint. It. is asserted that the defendant was ready and willing to perform his part of the contract right from the beginning, but the plaintiff herself went back, as she did not have the balance sale consideration. The plaintiff did not pay the amount within the stipulated period and was not willing to perform her part of the contract purchase the property as agreed upon. Therefore, the defendant was forced to resile the agreement and it was made very clear, to the effect in the notice exchanged between the parties. The defendant is not aware of issue of any public notice. It is false to say that time was not the essence of the contract. They denied the allegation, that the plaintiff was always ready and willing to perform her part of the contract by paying the balance sale consideration to the defendant. It was also contended that the suit is barred by limitation. On the aforesaid pleadings the trial Court framed the following issues: