H.S. PREMA Vs. K.G. VENKATESH

JUDGEMENT

(1.) DEFENDANT 3, 4 and 5 are in second appeal challenging the judgment and decree passed by the Addl. District Judge, Chitradurga in RA 2/2009 confirming the judgment and decree passed by the II Addl. Civil Judge (Sr. Dvn.), Chitradurga in favour of the plaintiff in the suit OS 155/2000 filed for specific performance.

(2.) PLAINTIFF entered into an agreement with the defendant for sale of the property in his favour for a total consideration of Rs. 6,90,000/ -. Agreement was executed on 7.8.1993 before the Chitradurga Sub -Registrar. Time was fixed as 36 months for execution of the sale deed from the date of agreement. On the date of agreement, plaintiff paid a sum of Rs. 3 lakhs through a cheque. It appears, the defendants could not get the occupants of the hotel premises vacated in time and also income tax clearance certificate was also to be obtained. According to the plaintiff, defendants approached the plaintiff seeking for extension of time on 12.7.1996, for another 24 months. Accordingly on 7.8.1993 one more agreement was executed. This was an ancestral property of the defendants. Subsequent thereafter, during October 1993 through a cheque another Rs. 1 lakh has been received by the defendants and during 1995 another Rs. 40,000/ - is said to have been paid to the defendants. Nearly Rs. 4,40,000/ - amount is said to have been received and the extended time was expired on 11.7.1998. Stating that defendants did not come forward with the clearance certificate from the income tax under S. 230A of the Income Tax Act and did not get the premises vacated, plaintiff issued a notice calling upon the defendants to execute the sale deed directing the defendants immediately to execute the sale deed on 22.2.1999 with the original documents. Contending that in stead of executing the sale deed, they have taken a frivolous contention, accordingly suit was filed. The suit was contested by the defendants denying the very sale transaction. According to the defendants, time was the essence of contract though it has not been agreed by the plaintiff. It is also stated that defendants have not undertaken to get the tenants evicted from the hotel; during December, 1997 major extent of the premises was demolished for the extension of double road. On the demolition of one of the shops leased to Srinath, he filed a suit which came to be dismissed which is under consideration before the appellate court. Based on the contentions, trial court raised as many as seven issues for consideration. After inquiry, trial court held that plaintiff proved that defendants have executed the sale agreement in respect of the suit schedule property and having agreed to sell the same for Rs. 6,90,000/ - plaintiff made payment of Rs. 4,40,000/ - in all. That is held in favour of the plaintiff. Also in respect of extension of time sought by the defendants to execute the sale deed, it is held in his favour. In respect of readiness and willingness is concerned, according to the submission of the plaintiff he has deposited the remaining amount in the court to demonstrate his conduct. So far as the issue with regard to time was the essence of the contract as argued by the defendant, is held in the negative. With regard to demolition of the portion of the building for extension of road is concerned, it is held that defendants have failed to establish the same.

(3.) HEARD the counsel representing the parties.