SARFUNNISA Vs. SMT. VIJAYALAKSHMI AND OTHERS

JUDGEMENT

(1.) THE appeal filed against the Judgment and decree passed in RA No. 56 of 1995 on the file of Additional District Judge, Dharwad arising out of the Judgment and decree in O.S. No. 118 of 1991 on the file of Additional Civil Judge, Hubli.

(2.) THE Appellant is the Plaintiff filed a suit for specific performance of the contract of sale. The Plaintiff entered into an agreement with the first Defendant for purchase of the suit house under registered agreement Ex. P.1 dated 28.11.1988 it is stipulated that the property will be sold for Rs. 90,000/ -. A sum of Rs. 10,000/ - was paid, a balance of Rs. 80,000/ - was to be payable on or before 15.11.1989. The Plaintiff did not offer to pay the balance and take registration. A legal notice was issued as per Ex. P.3 dated 16.1.1989 finally granting time till 7 days to pay the balance and to obtain the registered sale deed. The Plaintiff issued a reply at Ex. P.4 contending that subsequent to the registration of Ex. P.1 she has come to know that there is encumbrance to the extent of Rs. 60,000/ - payable to the Karnataka Housing Board, a sum of Rs. 3,000/ - and odd payable towards deficit of stamp duty towards registration of the sale deed in favour of the first Defendant and also that the building completion certificate is not obtained. Plaintiff under the reply insisted that the encumbrance mentioned has to be cleared and thereafter the Plaintiff would purchase the property. The first Defendant sells the property under registered sale deed to Defendants 2 and 3 who are the Respondents 2 and 3. The suit came to be filed on 5.7.1989 seeking relief of specific performance. The trial Court held that the time was the essence of the contract. The Plaintiff having failed to obtain the registered sale deed by paying the balance of consideration is not entitled to seek relief of performance.

(3.) AGGRIEVED by the dismissal, the second appeal is filed.