P.K. JAGANNATHA RAO Vs. MURALIDHAR BHAT

JUDGEMENT

(1.) This is a plaintiff's appeal. The present appellant as plaintiff had instituted a suit in O.S.No.39/2008 against the present respondent in the Court of the Principal Senior Civil Judge, Udupi, (hereinafter for brevity referred to as "the Trial Court" ) for the relief of specific performance.

(2.) The summary of the plaint averments in the Trial Court was that, the plaintiff entered into an agreement with the defendant on Dt. 17/5/2007 for the purchase of suit schedule 'A' properties which are three pieces of immovable properties, in total measuring 51 cents, for a total consideration of a sum of Rs.14,28,000.00 from the defendant who was the absolute owner in possession of the said 'A' schedule properties. On the date of the agreement, the plaintiff had paid a sum of Rs.8,50,000.00 to the defendant as earnest money towards the part performance of the contract. The said sum of Rs.8,50,000.00 included a sum of Rs.2,00,000.00 in the form of two cheques and remaining sum of Rs.6,50,000.00 in the form of cash. It was agreed that the Sale Deed had to be executed in favour of the plaintiff within six months from the date of the agreement and that the plaintiff, as a purchaser had to pay the balance sale consideration of a sum of Rs.5,78,000.00 at the time of execution of the Sale Deed. It is further the contention of the plaintiff that he was ready and willing to perform his part of the promise under the contract, as such, on Dt.18/5/2008, he had come to Udupi from Chennai where he runs his hotel business, to complete the formalities of execution of Sale Deed in his favour. However, to his shock and surprise, the defendant revealed that he has mortgaged the suit schedule 'A' properties with Syndicate Bank, Car street Branch, Udupi, for loan of a sum of Rs.7,50,000.00 and gave an excuse to postpone the execution of the Sale Deed and started demanding double the price of what was agreed under the sale agreement. Hearing the same, the plaintiff got issued a legal notice to the defendant through his lawyer on Dt.01-09- 2008, calling upon the defendant to execute the Sale Deed in his favour. However, the defendant even after receipt of the notice did not comply with the demand made therein. This constrained the plaintiff to institute a suit against him for the relief of specific performance of the agreement in the Trial Court.

(3.) In response to the suit summons, the defendant appeared through his counsel and filed his Written Statement, wherein he stated that he had mortgaged the suit schedule 'A' properties in Syndicate Bank, Car street Branch, Udupi and availed financial assistance to a tune of Rs.7,50,000.00. Though he admitted that, there existed an Agreement of Sale between himself and the plaintiff in respect of the suit schedule 'A' properties, which was entered into on Dt.17/5/2007, but contended that the plaintiff was not ready and willing to perform his part of the promise under the contract. Since the plaintiff did not pay the balance amount and come forward to get the Sale Deed executed in his favour, a meeting was held in the presence of witnesses and in the said meeting the plaintiff had agreed to take back the advance amount of Rs.8,50,000.00 paid to the defendant and agreed for cancellation of the Agreement for Sale.