JOSEPH LOBO S/O LATE JACCU ALIAS JACOB LOBO Vs. MR. PAUL NOEL RODRIGUES S/O LATE EDWIN RODRIGUES AND OTHERS

JUDGEMENT

(1.) THE appellants who were defendants in O.S. No. 355/2002 on the file of Principal Civil Judge, (Sr.Dn.), Mangalore are challenging the legally and correctness of the Judgment and decree passed by the court below on 19.1.2009 directing the 1st defendant or such other defendants who were found liable to execute the sale deed in favour of the plaintiff or his nominees as desired by him by way of conveying marketable right to the schedule properties in terms of the agreement of sale dt. 2.3.1996 or in the alternative to direct the defendants to refund a sum of Rs. 23,39,500/ - with interest at 12% p.a. from the date of suit till the data of payment. According to the plaint averments, under an agreement dt. 2.3.1996 the defendant -1 agreed to sell 1 acre 57 cents of land in Kavoor village and R.S. No. 58/1 along with his late father Jaccu @ Jacob Lobo for a court sate consideration of Rs. 25,35,500/ -. At the rate of Rs. 15,500/ - per cent Rs. 2 lakhs was paid as advance. As per the terms and conditions of the agreement, the plaintiff was required to pay 25% of the sale consideration on or before 30th June 1996 In a sum of Rs. 6,33,350/ - and the balance sale consideration was required to be paid on or before 30.11.1996. On or before that date, the sale transaction was required to be completed.

(2.) ON 20th July 1996 a sum of Rs. 4,08,500/ - was paid by extending the time upto 30.12.1955. A sum of Rs. 7,25,000/ - was paid on 29.11.1996 and in all Rs. 13,33,500/ - was paid and balance sale consideration was required to be paid in a sum of Rs. 12 lakhs at the time of registration of the sale deed. On 27.12.1996 the plaintiff addressed a letter to the defendant -1 to produce certain documents, namely, NOC from ULC to show that it is an agricultural land and they also called upon to comply upon other requirements, Thereafter on 21.11.1999 the father of the 1st defendant, Jacob Lobe died and on 27.11.1999 the plaintiff got issued a legal notice to the defendants calling upon them to receive the balance sale consideration. Therefore, suit was filed to enforce the agreement of sale or in the alternative to refund the advance sale consideration with interest at 12%.

(3.) BASED on the above pleadings, the following issues were framed by the court below: 1) Whether Mr. Jaccu alias Jacob and the 1st defendant entered into an agreement of sale with him agreeing to sell the suit schedule property at Rs. 15,500/ - per cent and received in all Rs. 13,33,500 -00 on various dates as averred in para 2 of the plaint. 2) Whether the plaintiff is Always bean ready and willing to perform his, part of the contract in terms of the agreement of sale? 3) Whether the plaintiff proved that the defendant committed default and felled to execute the regular sale deeds as agreed upon in terms of the agreement of sale? 4) Whether the suit is barred by time?