LAWS(KAR)-1991-2-6

NARAYANASWAMY L Vs. B BIJARAJ

Decided On February 11, 1991
L.NARAYANASWAMY Appellant
V/S
B.BIJARAJ Respondents

JUDGEMENT

(1.) this appeal is directed against the judgments and decrees of the courts below. This is a second appeal by the defendant against whom a decree of specific performance of the contract was granted by ihc court below.

(2.) plaintiff presented the suit in the second munsiff court, Bangalore, in o.s.no. 214/1984 inter alia pleading that the defendant had agreed to sell certain agricultural land for a sum of rs.7,500/- in accordance with the suit agreement dated 11-8-1975. It was set out in the agreement that the advance of rs.1,000/- should be paid on the dale of the agreement and ihe balance consideration should be paid at the time of registralion of the instrument of sale deed before the sub- registrar having jurisdiction. However, before ihe expiry of the period of 90 days specified in the suil agreement, defendant approached the plaintiff twice and obtained monies in respect of the immovable propety agreed to be sold under the suit agreement. He had received in all a sum of Rs. 6,000/- or so before the expiration of the period of 90 days specified in the suit agreement, but he did not execute the suit agreement despite persistent pleas by the plaintiff. However, on 1-4-1978 the defendant approached the plaintiff for enhancement of the price or consideration to rs.l0,000/-.the defendant did not agree. But on the instance of mutual friends, he agreed to pay the consideration of rs.10,000/- demanded by the defendant. The defendant wanted the cnllrc balance of sale price to be paid to him. Accordingly, on that day, he paid Rs. 2,000/- and defendant undertook to be present in the office of the sub-registrar to register the sale deed whenever the plaintiff called upon him to do so. The same was approved by the defendant. Since then, the plaintiff had been repeatedly requesting him to execute the registered sale deed. The defendant postponed the registralion of the sale deed on one or the other pretext. Therefore, a registered notice was issued on 16-11-1981 calling upon the defendant to execute the sale deed in his favour. The defendant caused an untenable reply to that notice to be issued. He refused to cxcculc ihe sate deed. In thai circumstance, the plaint was presented seeking a decree for specific performance.

(3.) the defendant resisted the suit and filed his written stalement. He admitted the execution of the suit agreement daled 11-8-1975 and the sale price agreed at rs.7,500/- for the agricultural land, ihe subjecl matter of the agreement to sell. He further admitted the receipt of Rs. 1,000/- as advance on the date of the suit agreement Rs. 2,000/ on 13-8-1975 and another sum of Rs. 3,000/- from plaintiff towardslhe sale consideration. He denied that he had agreed to produce all the title deeds before the sub-registrar and would receive the balance amount before the sub-registrar. He alleged that he was ready and willing to perform his part of the contract. He had even obtained permission to alienate the suit schedule property to the plaintiff. He had not at all delivered possession of the suit schedule property to the plaintiff. He had signed a receipt for Rs. 3,000/- on bona fide belief. He was an illiterate as he did not know the english language. He never parted with the possession of the suit schedule property to any one muchless the plaintiff. He had been in lawful possession and enjoyment of the suit schedule property. He had received Rs. 7,500/- in all. The plaintiff postponed the execution of the sale deed in his nominee's name as he was searching for a prospective purchaser who would pay the higher amount to him with a view to make profit in the said transaction. Ultimately, he informed the plaintiff that as he had committed default and breach of contract and had not completed his part of the agreement, that is the suit agreement, and as such he had forfeited the advance amount paid to him. All other allegations in the plaint were denied.