LAXMAN BASAVANT PATIL Vs. DASHRATH TUKARAM BAMANE

JUDGEMENT

(1.) This appeal is filed by the defendant through his legal heirs challenging the judgment and decree passed in O.S.No.308/2005 on the file of the learned II Additional Civil Judge (Sr.Dn.), Belgaum, in O.S. No.308/2005 dtd. 20/4/2009 decreeing the suit for specific performance which was confirmed by the learned II Additional District Judge, Belgaum in R.A. No.150/2009 vide judgment dtd. 17/4/2010.

(2.) For the sake convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.

(3.) The brief factual matrix leading to the case are that the defendant is the owner of the suit scheduled property and he intended to sell the same. The plaintiff approached the defendant and after negotiations, the defendant agreed to sell the suit property for a consideration of Rs.2,15,000.00 and on 13/4/1994 he had executed an agreement of sale in favour of plaintiff agreeing to sell the suit property and he received Rs.1,44,000.00 as an earnest amount. It is further asserted that the defendant has raised a loan in LIC of India and there was an agreement that plaintiff shall pay the LIC loan amount of Rs.71,000.00, as per his convenience and possession of the suit property was delivered to the plaintiff. The plaintiff has cleared the LIC loan in 1999 and behind the back of the plaintiff, the defendant again borrowed a loan of Rs.4,00,000.00 from the society by creating charge. When the plaintiff has enquired the defendant in this regard, he had executed a supplementary agreement of sale on 1/10/1999, re- affirming the earlier agreement, but he has failed to adhere to his promise. The entire sale consideration was paid and when the plaintiff has issued a legal notice, the defendant has admitted to agreed the sale deed but did not do so and when the second notice was issued by the plaintiff, the defendant has flatly refused the execution of the agreement of sale itself. Hence, plaintiff filed a suit for specific performance and it is asserted that he was all along ready and willing to perform his part of contract and he paid entire consideration and as such he sought specific performance.