ZUHRA NANGOLI Vs. JOAQUIM VAZ AND ORS.

JUDGEMENT

(1.) THIS is a first defendant's regular first appeal challenging the judgment and decree of the trial Court which has dismissed the suit of the plaintiff for specific performance and directed refund of Rs. 1,00,000/ - received as earnest money and also Rs. 1,00,000/ - as liquidated damages from defendant No. 1 with interest @ 6% per annum.

(2.) FOR the purpose of convenience, the parties are referred to as they are referred to in the original suit.

(3.) THE defendant No. 1 is the owner of the schedule property. He offered to sell the same to the plaintiff. An agreement of sale was entered into on 11.2.1993 wherein the defendant agreed to convey the suit schedule property for a consideration of Rs. 6,25,000/ -. An advance sum of Rs. 1,00,000/ - was paid by cheque drawn on ANZ Grindlays Bank, Bangalore Branch. The time stipulated for completion of the transaction is on or before 20.4.1993. As per the terms of the contract, 1st defendant had to deliver possession of the property at the time of execution of the sale deed. The defendant delivered some of the original title deeds to the plaintiff and undertook to deliver other documents, at the time of execution of sale deed. The defendant had to furnish the necessary certificate under the Income Tax Act and also the clearance from the Urban Ceiling Regulation Act. The husband of the 1st defendant K.A. Nangoli is a consenting witness. The plaintiff was ready and willing to perform his part of the contract. He was ready with the stamp paper and balance consideration amount. The plaintiff with a letter dated 13.4.1993 issued through their Counsel called upon the defendant to furnish additional documents and also to obtain clearance under the Urban Land Ceiling Act. The plaintiff got issued advertisement through their Counsel in respect of the agreement of sale in Deccan Herald on 13.4.1993 which appeared on 15.4.1993. On 16.4.1993, plaintiff learnt that in a suit filed by the State Bank of India against the defendant and her husband in O.S. No. 10201/1993 before the City Civil Court, Mayo Hall Unit, an order of attachment before judgment has been passed attaching the schedule property. When this was brought to the notice of the defendant, she assured that she would take necessary steps to raise the attachment. Again by a letter dated 19.4.1993 through their Counsel, plaintiff made known their readiness and willingness to comply part of the contract subject to the defendant getting attachment raised. On 27.4.1993, an application was filed by the defendant for raising of the attachment and the same was rejected. The order of attachment was made absolute. The plaintiff has suffered damages of Rs. 1,00,000/ - which the defendant is liable to pay under Clause 10 of the agreement of sale. The plaintiff intended to construct a residential house in the schedule property. Since the defendant did not take any steps to convey the schedule property, the plaintiff got issued a notice on 09.12.1993 calling upon the defendant to convey the schedule property on or before 15.1.1994. The defendant sent a reply raising untenable contentions and pointed out because of the paper publication issued, Court passed an order of attachment. The plaintiff contended that it is baseless because the order of attachment was before the filing of the suit. The defendant replied contending that she has preferred an appeal against the order of attachment to the High Court and she offered to return the advance amount if the plaintiff do not wish to complete the sale transaction and wait till the order of attachment is raised by the High Court. The plaintiff got issued a rejoinder dated 14.7.1994 reiterating the earlier stand. When the defendant was making an attempt to alienate the property, the plaintiff filed a suit for specific performance or in the alternative for refund of Rs. 1,00,000/ - as earnest money under the agreement with a sum of Rs. 1,00,000/ - towards liquidated damages and interest @ 18% per annum. In fact, second defendant purchased the property during the pendency of the suit. The third defendant is said to have caused sale of suit schedule property during the pendency of the suit. Therefore, they are all made parties to the suit by way of impleading.