SARASWATHI AMMAL Vs. V C LINGAM

JUDGEMENT

(1.) the appeal is by the first defendant, in a suit filed by tie 1st respondent herein for specific performance of an agreement of sale. Plaintiff and 1st defendant entered into an agreement of sale on 26-5-1980, whereby, the 1st defendant agreed to sell and plaintiff agreed to purchase a property situated in bangalore. 1st defendant was already in possession of residential portion of the property; the front portion has two shops which were then tenanted by others. The consideration for sale was Rs. 90,000/-, out of which a sum of Rs. 10,000/- was paid by the plaintiff at the time of the agreement (ex. D. 1). The plaintiff agreed to pay the balance sum of Rs. 80,000/- within six months from the date of the agreement i.e., on or before 26-11-1980; the agreement stated that 1st defendant agreed to sign the sale deed after receiving this balance amount. The plaintiff had to bear the expenses of the sale deed. Plaintiff was already in possession of the house as a tenant and he had to take possession of the two shop portions from the tenants after the sale of the property and it was not for the 1st defendant to handover the possession of those shops to the plaintiff. The agreement, further, stated that if plaintiff failed to register the property as per the terms of the agreement 1st defendant could forfeit the advance amount of Rs. 10.000/-. If 1st defendant, after receiving the balance amount of Rs. 80,000/- from the plaintiff "fails to get the property registered" in favour of the plaintiff, plaintiff was entitled to get the property registered through court of law. On 25-11-1980, an endorsement was made, by the executants, that the agreement provided for the performance on 26-11-1980, but it was not possible to complete the sale deed and hence they have agreed to extend the period by two months; the sale agreement had to be completed by 25-1-1981. Again, the date was extended in view of an injunction order of the civil court issued in o.s. no. 10452 of 1980; the extended period was further extended by a subsequent endorsement. The last endorsement resulted in extending the date of completion till 24-10-1981. The agreement was executed and these endorsements were made at salem, where the 1st defendant has been residing.

(2.) the plaint refers to the agreement and thereafter states that the first endorsement extending the time came to be made as desired by the first defendant "in spite of the fact that the plaintiff was and has been always ready and willing to perform his part of the contract." it also refers to the suit filed by the second defendant against the first defendant as per o.s. no. 10452 of 1980 wherein the second defendant obtained an order of temporary injunction against the sale, claiming that he was entitled to enforce the oral contract under which the first defendant agreed to sell the property to the second defendant. In view of this order of temporary injunction, the time to complete the agreement in question (ex. D. 1) had to be extended. The plaint further refers to the application filed by the first defendant in the suit o.s. no. 10452 of 1980 (hereinafter referred to as 'the other suit') seeking the vacating of the order of injunction. This la. Was rejected and consequently the first defendant filed an appeal before the High Court which was allowed resulting in the vacating of the temporary injunction on 16-2-1984. The plaint further asserts that immediately on 22-2-1984 first defendant issued a notice to the plaintiff informing of the said order of the High Court and calling upon the plaintiff to take from the first defendant the sale deed to which plaintiff replied by a telegram that he was ready and willing to execute the sale deed and further wrote a letter as to when the first defendant would arrive at Bangalore from salem to enable the plaintiff to keep himself ready to complete the transaction. However, there was no response thereafter from the first defendant. Therefore the plaintiff asserts that he sent a letter on 23-8-1984 with a copy to the advocate, calling upon her to perform her part of the contract and expressing the plaintiffs readiness and willingness to perform the contract. The plaint further refers to the various other letters and also refers to interrogatories delivered in the other suit to the first defendant by the second defendant, the second defendant being the plaintiff in the other suit. According to the plaintiff, the reply given by the first defendant to the interrogatories, indicated her different attitude from the one expressed in the contract in question, after asserting that the plaintiff is ready and willing to perform his part of the contract and asserting that the first defendant avoided to execute the sale deed.

(3.) the grst defendant pointed out that the present plaintiff was impleaded as a second defendant in the other suit at the instance of the first defendant. Further it is stated that the second defendant has been offering Rs. 1 lakh for the suit property if possession was given to him after evicting the tenants and it is in these circumstances the plaintiff who knew about the said offer came forth to purchase the property for Rs. 90,000/- which resulted in the agreement in question. However the agreement had to be completed within six months by payment of Rs. 80.000/- by the plaintiff to the first defendant (already Rs. 10,000/- having been paid at the time of the agreement); but the first defendant could not pay the amount and therefore the time to complete the agreement was extended by an appropriate endorsement on the agreement. This written statement further states that the plaintiff was already in possession of a substantial part of the property and had agreed to take possession of other portion from the tenants at his own risk and All that was left for the first defendant was, only, to sign the sale deed at salem and authorise the plaintiff or his agent to have the sale deed registered. The first defendant had obtained the requisite income tax clearance certificate by 15-11-1980 to enable the execution of the sale deed. According to the first defendant the balance sum of Rs. 80,000/- was to be payable to her at salem and her signature had to be taken on the sale deed after the plaintiff got it prepared at his cost. She also pointed out that first defendant had not the necessary funds with him and was seeking extension. According to her there was a collusion between the plaintiff and the second defendant and the plaintiff made the second defendant to file the other suit and got an order of interim injunction, so that the plaintiff can gain time to arrange for the funds. She further stated that the present plaintiff who was a party to the other suit did not take any step to have the temporary injunction vacated and it was the first defendant who filed an application and thereafter filed an appeal before the High Court in that connection. Inaction of the plaintiff in this regard itself indicated the unwillingness of the plaintiff to perform his part of the contract immediately on the appeal was allowed and the temporary injunction vacated, the first defendant issued a notice to the plaintiff calling upon him to execute the sale deed after making the payment, within a week from the receipt of the notice. It was further stated that, at the time of the agreement the value of the property was more than Rs. 1 lakh and on the date of the written statement it was worth over rupees five lakhs. The contract, if, performed after a lapse of over four and a half years, would result in hardship and prejudice to the first defendant. It is unnecessary to refer to the written statement of the second defendant.