SUSHEELA M. PAREKH Vs. M. S. MANOHARAN

JUDGEMENT

(1.) The captioned appeal is filed by the defendant questioning the judgment and decree passed by the Court of first instance in O.S.No.814/2007, wherein the suit of the respondent/plaintiff is decreed directing the present appellant/defendant to execute registered sale deed in respect of the suit schedule property.

(2.) The facts leading to the case are as under:

(3.) Learned counsel appearing for the appellant/defendant would vehemently argue and contend before this Court that the finding of the Court below that time is not the essence of contract is palpably erroneous, perverse and contrary to the clinching evidence on record. Learned counsel appearing for the appellant/defendant would contend before us that the appellant/defendant was in dire need of funds and hence, it was specifically contemplated in the agreement of sale as per Ex.P-1 that the sale transaction has to be completed within a period of five months. He would also submit before us that clause (6) of the agreement of sale contemplates a specific clause that would clearly demonstrate the intention of the parties. He would submit to this Court that this material aspect is not dealt with by the Trial Court while recording its finding as to whether time was the essence of contract. Learned counsel would further submit that the Trial Court has not at all examined the evidence of PW.1, wherein it is elicited that subsequent to agreement of sale pertaining to suit schedule property, the respondent/plaintiff had opened a new shop at OTC Road, Chickpet, Bengaluru on 01.10.2006 and the respondent/plaintiff had invested a sum of Rs.2,00,00,000 in opening that shop. In this background, learned counsel for the appellant/defendant would submit to this Court that the Trial Court has totally misread Exs.P-5 and P-6. The Trial Court has virtually proceeded to presume that under Exs.P-5 and P-6, the respondent/plaintiff had a sum of Rs.2,00,00,000/- so as to perform his part of contract. He would vehemently argue and contend before this Court that as per Exs.P-5 and P-6, the respondent/plaintiff has requested for credit facility from the financial institution and the same were granted conditionally to be utilized for specific purpose. He would submit to this Court that the credit facility would not in itself establish the financial capacity to perform his part of contract. This material aspect is virtually misread and thereby the Trial Court has erred in arriving at a wrong conclusion. Learned counsel would take us to Ex.P-4 which is the letter addressed by respondent/plaintiff and would submit to this Court that on meticulous reading of Ex.P-4 it can be gathered that respondent/plaintiff was not ready and willing to complete his part of contract.