M. CHELUVAIAH Vs. AMRUTHAMMA AND ORS.

JUDGEMENT

(1.) THE appellant was the plaintiff before the trial court in a suit for specific performance. It was the case of the plaintiff that defendant No. 1 was the owner of the suit property and defendant No. 2 was the husband of defendant No. 1. The suit schedule property consisted of a cinema hall known as "Bramaramba talkies' which was more fully described in the suit schedule. The plaintiff had agreed to purchase the same along with 20 guntas of land in Survey No. 219/3 and vacant sites situated over the suit property. The sale consideration agreed upon was Rs. 12,50,000/ - and an advance amount of Rs. 25,000/ - was paid under the agreement dated 12.9.2005 and further, it was agreed that the sale deed would be executed within one month pursuant to the agreement.

(2.) THE first defendant was under an obligation, at that point of time, to secure income -tax clearance certificate and a 'No Objection Certificate', by the Karnataka State Financial Corporation. But however, it transpires that defendants 1 and 2, to meet certain urgent financial crisis, had agreed to initially sell 5 items of the properties by way of a registered sale deed dated 3.5.1996 and delivered possession to the plaintiff. However, it transpires that the sale transactions pertaining to 'Bramaramba Talkies' and the land referred to hereinabove, were not completed. The defendants had delayed and postponed the execution of the sale deed and therefore, the plaintiff was constrained to restrain them by filing a suit for injunction from alienating the suit property. However, it transpires that defendant No. 1 sought to mortgage the property to defendants 3 and 4 on 4.1.1999. The plaintiff being ready and willing to complete the transactions referred to above, had filed yet another suit in O.S. No. 91/1999 for permanent injunction restraining defendant No. 1, from alienating the property by way of mortgage. And thereafter legal notices dated 2.9.1998 and 3.12.2001 were issued, demanding the defendant No. 1 to execute the sale deed. By a reply dated 9.12.2001, the defendant No. 1 is said to have denied the execution of the regular sale deed. It is this which, according to the plaintiff, gave him a cause of action to initiate proceedings for specific performance of contract. On receiving the suit summons, the defendants had entered appearance and defendants 1 to 3 had filed a common written statement and the same was adopted by defendant No. 4 as well. The execution of the sale agreement between the plaintiff and defendant for a sum of Rs. 12,50,000/ - was admitted. It was admitted that a sum of Rs. 25,000/ - was paid in advance. It was however denied that there were any further obligations on the part of the defendants, which ought to have been completed preceding the execution of the sale deed and it was sought to be contended that it was the plaintiff, who was not ready and willing to complete the transaction and hence, by sheer efflux of time, the agreement has spent itself out and no longer enforceable. It was contended that the suit filed was beyond the period of limitation and hence, the suit ought to be dismissed on the ground of limitation. It was also denied that the plaintiff had paid several sums of money over a period of time totaling to a sum of Rs. 11,37,000/ - after taking into account the sale consideration in respect of five sites, which was the subject matter of the sale deed referred to above. The plaintiff was due to pay only a sum of Rs. 1,13,000/ - was specifically denied by the defendants and in that background, the court below had framed the following issues:

(3.) THE learned Counsel for the appellant has filed an application seeking to amend the suit prayer, to the effect that the plaintiff was also in the alternative, entitled to refund of the sale consideration paid by him in advance, if the suit was to be defeated on any ground whatsoever. The learned Counsel would also point out that there being specific claim of the plaintiff that he had paid a total sum of Rs. 11,37,000/ - out of Rs. 12,50,000/ - and that he was due to pay only a sum of Rs. 1,13,000/ -, the court below has not chosen to frame any issue. In the light of Section 22 of the Specific Relief Act, 1963 (Hereinafter referred to as the 'SR Act', for brevity), which provides that the plaintiff in a suit for specific performance, would be entitled to specific performance of contract or in the alternative, refund of the earnest money or the advance price paid, provided he asks for such relief. However, the court is not precluded from granting such relief on amendment of the plaint at any stage of the proceedings. Given this provision of law, it would be in the fitness of things that atleast the prayer of the plaintiff for refund of the earnest money that he has paid be considered. Consequently, the application is allowed. The appellant is permitted to amend his plaint, to include the prayer for refund of the earnest money. However, insofar as the contention that the plaintiff had paid the amounts from time to time and in addition to the advance amount of Rs. 25,000/ -, which is indicated in the sale deed, is vehemently denied by the respondent. The plaintiff seeks to rely upon certain documents, supporting such a contention that the plaintiff was due to pay only the remaining amount of Rs. 1,13,000/ - and that he had paid a substantial amount of the sale consideration of Rs. 12,50,000/ - There is no direct evidence of payment of these monies. Since the monies were paid from time to time by way of cash, which is not established by other documents.