M AZMATHULLA KHAN Vs. THANKAMMA MATHEWS

JUDGEMENT

(1.) the appellant was the defendant before the 10th additional city civil judge, Bangalore in original suit No. 923 of 1980. That was a suit filed by the plaintiff for declaration that the agreement to sell entered into between her and the defendant dated 12-11-1974 stood cancelled and for recovery of possession of the suit property in respect of which the agreement to sell had been entered and for recovery of a sum of Rs. 1,870/- being the damages for use and occupation of the said property with a prayer for a further direction to enquire into the future mesne profits, under order 20, Rule 12, CPC. The suit had been originally instituted before the civil judge, civil station, Bangalore and had been numbered as 29 of 1975 and it was pending as on the date of formation of the court of city civil judge, Bangalore and thereafter came to be numbered as original suit No. 923 of 1980 and was ultimately disposed of by the 10th additional city civil judge. The learned civil judge granted the prayer for cancellation of the agreement to sell and directed the defendant to handover possession of the suit house and pay a sum of Rs. 215/- by way of past damages for use and occupation upto the date of occupation of the suit house and further directed the plaintiff to refund the sum of Rs. 18,000/- received by her as advance under the agreement with interest at 6 per cent per annum. In respect of direction of refund as also award of only Rs. 215/- as damages, plaintiff has preferred cross-objections. The appeal was allowed by another division bench of this court by its judgment dated 18-7-1990 and the suit came to be dismissed. The appellant-defendant was directed to pay or deposit the sum of Rs. 72,000/- the unpaid balance consideration with 15 per cent interest per annum from 25-11-1974 till payment or deposit in the court below on or before 31st december, 1990 and the trial court was directed to issue notice to plaintiff fixing the date for executing the sale deed if the deposit were to be made and the plaintiff was further directed to execute the sale deed after receiving the entire amount and on the failure of the plaintiff to execute the sale deed, the court was directed to execute the same. Being aggrieved by this judgment and decree of this court, the plaintiff preferred civil appeal No. 60/6 of 1990 before the Supreme Court of India and the Hon'ble Supreme Court set aside the judgment and decree of this court and remitted the case to the file of this court with a direction to restore the appeal to the file and to hear and dispose of the appeal on merits along with the cross-objections. The Supreme Court also gave certain directions for depositing certain amount by the defendant and it is quite unnecessary to advert to those directions at this stage.

(2.) the case of the plaintiff in brief is as follows: the plaintiff had agreed to sell and defendant had agreed to purchase the premises bearing No. 102, situate at wheeler road, civil station, Bangalore, more fully described in the plaint schedule, for a sum of Rs. 90,000/- and had executed an agreement to sell on 12-11-1974. She had received a sum of Rs. 3,000/- only on the date of the said agreement. As per the terms of the agreement, the sale transaction had to be completed on or before 11-1-1975. As per the terms and conditions of the agreement, plaintiff had agreed to obtain a declaration from one mohanambal who had not joined in the execution of the sale deed dated 29-6-1972 in favour of the plaintiff and if for any reason he was unable to obtain any such declaration from her, it had been agreed that she and her husband should furnish security indemnifying the possible loss and damages to the extent of Rs. 5,000/-. On 25-11-1974, the defendant paid a further sum of Rs. 15,000/- to the plaintiff and on that date the defendant was put in possession of the suit property. The agreement also provided that if the purchaser failed to perform his part of the contract, the advance amount paid by him would stand forfeited. There was exchange of correspondence including notices between the parties and plaintiff got issued a notice dated 10-1-1975 informing the defendant that the agreement entered into between them stood cancelled and that the advance amount of Rs. 18,000/- paid, stood forfeited and the defendant was also called upon to pay damages for use and occupation of the suit premises at Rs. 500/- per month. He was also called upon to deliver possession of the suit premises. It was further pleaded that the plaintiff was always willing and ready to perform her part of the contract and the breach of contract was on the part of the defendant. Therefore, plaintiff sought for declaration and possession and recovery of damages at rs.1,870/-.

(3.) that there was an agreement to sell in his favour, executed by the plaintiff on 12-11-1974 in respect of the suit house has been admitted by the defendant. He has pleaded that as per the agreement, the last date for performance of the contract was 11-1-1975 and the agreed sale price was Rs. 90,000/- and it had been agreed that a sum of Rs. 87,000/- should be paid before the sub-registrar at the time of the registration. He has further pleaded that subsequent to the agreement, plaintiff was in dire need of money and he approached the defendant for a sum of Rs. 15,000/- and plaintiff agreed to receive the same as part of the sale consideration with the understanding that the defendant need pay only the balance amount of Rs. 72,000/- before the sub-registrar at the time of the registration. He insisted the plaintiff to give possession of the suit property on account of the heavy advance and plaintiff readily agreed and accordingly on 25-11-1974 he was put in possession of the suit premises in part performance of the agreement. It has been stated that as per the terms of the agreement, plaintiff was expected to get the necessary declaration from mohanambal before the finalisation of the sale transaction and was also expected to give or caused to be given necessary indemnity bond and they were the two essential prerequisites before a sale deed could be executed. It has also been pleaded that at the time of incorporating the above-said covenant relating to mohanambal it was represented by defendant that the share of mohanambal would come to 1/12 and therefore Rs. 5,000/- would be the approximate value of her share, taking the market-value of the property at Rs. 90,000/- and accordingly the covenant relating to Rs. 5,000/- was made in the agreement. But, later the defendant came to know that mohanambal actually had 1/8 share and further, the sum of Rs. 5,000/- noted in the agreement was a mathematical error. He has also pleaded that he was ready and willing to perform his part of the contract before 11-1-1975, but plaintiff did not show any concern for performing her part of the contract. Having regard to the fact that she had received heavy advance, thought of breaking the contract and not abide by the terms and conditions of the agreement. The plaintiff had failed to get the declaration from mohanambal. She also failed to execute the indemnity bond as agreed. The plaintiff was guilty of suppressing the very important piece of information, that mohanambal had got 1/8 share in the suit property and not 1/12 share. The exchange of notices has been admitted by him. The plaintiff got legal notice issued rescinding the contract and he (defendant) had replied the same. The allegation that he was not ready and willing to perform his part of the contract has been denied by the defendant. On the other hand he has pleaded that he was ever ready and willing to perform his part of the contract. He has also pleaded that he had made some improvements to the suit property to an extent of Rs. 20,000/-. He has also pleaded that there was no reason for him to avoid the same and on the other hand the plaintiff who had received an advance of Rs. 18,000/- had taken to this litigation. That plaintiff is entitled to forfeit the amount has also been disputed. It has also been pleaded that the sum of Rs. 18,000/- represents part of the sale consideration and therefore there was no scope for the plaintiff to cancel the said agreement. That plaintiff is entitled to the relief of declaration and possession and recovery of the amount has also been disputed. Therefore it has been pleaded that plaintiffs suit is liable to be dismissed.