MANSOOR NAZEER Vs. H. R. REHAMAN

JUDGEMENT

(1.) This appeal is listed for admission. Heard the learned counsel for the appellant. This appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court.

(2.) The factual matrix of the case of the plaintiff before the Trial Court that the defendant entered into an agreement of sale dtd. 4/10/2007 agreeing to execute the sale deed for sale consideration of Rs.6,50,000.00 and as on the date of agreement, he has received an amount of Rs.1,01,000.00 and agreed to pay the remaining amount within three months subject to furnishing of the documents for registration by the defendant and also he has to clear the bank loan and he will come forward to execute the sale deed for him or any nominee and inspite of providing the documents, he took additional amount of Rs.50,000.00 on 25/10/2007 as well as an amount of Rs.1,00,000.00 on 4/11/2007 and in all he has received an amount of Rs.2,51,000.00 but the defendant did not come forward to execute the sale deed, hence, legal notice was issued and when he did not execute the sale deed, filed the suit for the relief of specific performance based on the sale agreement dated

(3.) The Trial Court having considered the pleadings of the parties, framed the Issues as well as additional Issue that whether he was always ready and willing to perform his part of the contract. The Trial Court allowed the parties to lead their evidence. In order prove the case of the plaintiff, the plaintiff himself examined as PW1 and also one witness as PW2 and got marked the document at Ex.P1 to P3. On the other hand, defendant himself examined as DW1 but not produced any documentary evidence. The Trial Court having considered both oral and documentary evidence placed on record, answered Issue No.1 as negative since the defendant took the defence that time is an essence of contract and the trial court also considered Additional Issue No.1 with regard to ready and willingness and answered the same as affirmative having considered that admittedly as on the date of the agreement, an amount Rs.1,01,000.00 was paid and out of remaining amount, a sum of Rs.1,50,000.00 as additional amount was also paid and in paragraph 17, the trial court taken note of the fact that DW1 categorically admitted that he has not cleared the bank loan and he has not produced any document as stipulated in the agreement and it is further observed that it is crystal clear that the said three months time is not for the plaintiff but it is for the defendant to clear the loan at Sharada Mahila Co- operative Bank and the trial court also taken note of the fact that an additional amount was also received to the tune of Rs.1,50,000.00 on two dates immediately after execution of the sale agreement. Hence, the trial court comes to the conclusion that the plaintiff was always ready and willing to perform his part of contract and time is not essence of the contract and the defendant though received the additional amount as well as advance amount, he did not clear the loan amount. Hence, it is fault on the part of the defendant in not coming forward to execute the sale deed and hence, the trial court grant the relief of specific performance.