MANASA HOUSING CO OPERATIVE SOCIETY LTD Vs. MARIKELLAIAH

JUDGEMENT

(1.) V- This is plaintiffs appeal, questioning the judgment and decree passed in O. S. No. 92/97, dated 22-12-01 on the file of the II Addl. Civil Judge (Jr. Dn.), Mysore:

(2.) THE suit is one for grant of decree for specific performance of an agreement for sale deeds dated 18-9-93 and 18-10-93, by directing the defendants to receive the balance of sale consideration and execute the registered sale deed conveying the schedule property in favour of the plaintiff and deliver the vacant possession of the suit schedule property.

(3.) PLAINTIFF is a registered Housing Cooperative Society, engaged in the business of forming layout and distribution of sites to its members. Plaintiff had entered into an agreement of sale with the defendants-1 and 2 under an agreement dated 18-9-1993 for purchase of suit schedule property on consideration of Rs. 3,30,000/- and advance of Rs. 10,000/- was paid on the said date and further agreed to pay Rs. 40,000/-within 30 days from the said date. The balance of sale consideration was to be paid at the time of registration of sale within six months from the date of the agreement. On 18-10-1993, plaintiff paid further sum of Rs. 40,000/- under separate receipt, and the time for completion of the sale transaction was refixed as nine months from 18-9-1993. It is the case of the plaintiff that subsequently, plaintiff made several payments to the defendants on different dates to the tune of Rs. 1,89,000/- and alleged that the plaintiff was always ready and willing to perform its part of contract. However, on account of institution of a suit in O. S. No. 50/1994 by the sisters of the defendants and obtaining a temporary injunction restraining the alienation of the suit properties therein including the suit schedule property the sale transaction could not be completed. Plaintiff further alleged that it got impleaded in the said suit and thereafter, the plaintiff also filed another suit in O. S. No. 130/1996 seeking permanent injunction restraining the defendants from alienating the suit schedule properties to third party. It is the case of the plaintiff, that it was always ready and willing to perform its part of contract by paying the balance of sale consideration of rs. 1,40,000/ -. However, on account of the suit being filed by the sisters of the defendants and the injunction being operative against the plaintiff and the defendants, the sale transaction could not be completed in thae time stipulated. It is the case of the plaintiff that the time was not the essence of the contract and the delay was at the instance of the defendants and not at the instance of the plaintiff.