G.ARUN KUMAR Vs. NARASIMHA POOJARY

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel appearing for the respective parties.

(2.) This appeal is filed challenging the judgment and decree dtd. 4/4/2019 passed in R.A.No.5003/2018 on the file of the IV Additional District and Sessions Judge, Shimoga, sitting at Bhadravathi.

(3.) The factual matrix of the case of the plaintiff before the Trial Court is that he had entered into an agreement with defendant No.1 for purchasing the vacant site for a valuable consideration of Rs.6,00,000.00 vide sale agreement dtd. 4/8/2014 and he had paid the earnest money of Rs.1,00,000.00 and agreed to pay the remaining amount of Rs.5,00,000.00 at the time of registration of the sale deed and time was fixed for registration was for a period of three months. It is also his claim that he was repeatedly asking the defendant to furnish the documents to have the sale deed and the defendant No.1 did not come forward to execute the sale deed and he was always ready and willing to perform his part of contract. In pursuance of the suit summons, the defendant No.1 appeared and filed written statement contending that the agreement date 4/8/2014 was terminated and he also returned the advance amount of Rs.1,00,000.00 to the plaintiff by tendering the cheque and the same was not encashed by him hence, the plaintiff was not entitled for the relief of specific performance. The Trial Court after considering both oral and documentary evidence placed on record framed the issues with regard to ready and willingness on the part of the plaintiff and whether agreement was cancelled and whether the defendant No.1 had paid the amount by way of cheque and whether the plaintiff is entitled for the relief of specific performance as prayed. The plaintiff in order to prove his case, examined himself as PW1 and got marked the documents at Ex.P1 to P6 and also examined two witnesses as PW2 and PW3. On the other hand, the defendant No.1 himself examined as DW1 and also examined one witness as DW2 and got marked the documents at Ex.D1 to D3. The Trial Court after considering both oral and documentary evidence placed on record answered issue No.1 as negative in coming to the conclusion that the plaintiff was not always ready and willing to have the sale deed and also answered issue No.2 as affirmative with regard to the execution of the sale agreement and also cancellation of sale agreement and also answered issue No.3 as affirmative in coming to the conclusion that the defendant has tendered the money which he has received as earnest money and comes to the conclusion that the plaintiff is not entitled for any relief of specific performance and dismissed the suit.