ELIOT JOHNSON Vs. GERTRUDE PINTO

JUDGEMENT

(1.) THIS is a plaintiff s appeal challenging the judgment and decree dated 19.01.2013 passed by Prl.Sr.Civil Judge, Mangalore in O.S.No.86/2007 decreeing the suit in part filed by plaintiff seeking for specific performance of the contract dated 23.03.2004 by directing defendants to pay sum of Rs.1 lakh to the plaintiff with interest @ 12% p.a. from date of agreement of sale i.e., 23.03.2004.

(2.) PLAINTIFF instituted a suit against defendants praying for judgment and decree to direct the defendants -1 to 3 to execute sale deed in terms of the agreement of sale dated 23.03.2004 in respect of properties described in the plaint namely, 7 cents, 4 cents and 11 cents situated in R.S.No. 31 -2A4C, 119 - D3B3, 119 -D4 (hereinafter referred to as suit schedule property for brevity). It was contended by plaintiff in the suit that defendants are absolute co -owners of suit schedule property having acquired the rights in respect of same as the legal heirs of Sri Joseph Jerome Pinto who is said to have expired intestate. It was contended that plaintiff entered into an agreement of sale in respect of suit schedule property on 23.03.2004 in her personal capacity and as a General Power of Attorney holder of defendants -2 and 3 agreeing thereunder to convey the suit schedule property for a consideration calculated @ Rs.55,000/ - per cent. On the date of agreement, a sum of Rs.1 lakh was paid by plaintiff to defendants as advance sale consideration which came to be duly acknowledged by the first defendant. Plaintiff contended that he was always ready and willing to pay the balance consideration subject to defendants complying and fulfilling the terms and conditions agreed upon under the said agreement, which was not performed by the defendants. It was also specifically contended that total sale consideration agreed to be paid was to be determined only after plaint schedule property was got surveyed and measured by defendants as per clauses (2) and (4) of agreement of sale and on account of failure of the defendants to indicate the actual extent of land to be sold, plaintiff could not pay the balance sale consideration, for which plaintiff was always ready and willing. It was further contended that on account of serious failure on the part of defendants to perform their part of the contract, though plaintiff had complied all the conditions stipulated under the agreement, defendants took undue advantage in not conveying the property to the plaintiff. It was further contended that legal notice was issued by defendants on 09.02.2005 alleging that plaintiff has taken undue advantage of first defendant s helplessness and intimating the plaintiff that on account of non payment of balance consideration, there has been default in compliance with the terms of agreement and thereby cancelled the agreement and forfeited the advance amount paid. Said legal notice came to be duly replied by plaintiff on 15.03.2005 denying the averments made and informing the first defendant that in the event of any suit being filed by her, it would be defended at the cost of first defendant.

(3.) IT was further contended by plaintiff that he has been always ready and willing to perform his part of contract and defendants were evading to keep up their promises. Hence, plaintiff got issued legal notice on 29.01.2007 calling upon the defendants to perform their part of the contract which came to be duly replied by first defendant on 06.02.2007 whereunder she reiterated her earlier contention raised in legal notice dated 09.02.2005. Thereafter, present suit came to be filed by plaintiff.