S RANGARAJU Vs. A KANDASWAMY CHETTIAR

JUDGEMENT

(1.) THIS Second Appeal arises out of the judgment and decree dated 4th July 2001 in RA No. 38/1998 on the file of the Principal District Judge, Mysore, confirming the judgment and decree dated 6th August 1998 in O. S. No. 185/1993 on the file of the II Additional Civil Judge, Mysore.

(2.) THE plaintiff - respondent herein had filed a suit for recovery of a sum of Rs. One lakh together with future interest at 24% per annum on the ground that, the defendants - appellants herein are the owners in possession of the suit schedule property. It is the case of plaintiff respondent that, he has entered into an agreement of sale with defendants - appellants herein on 5th July 1990 agreeing that the appellants would sell the suit schedule property in favour of the plaintiff -respondent for valuable consideration of Rs. 03,45,000/ -. On the date of agreement of sale, a sum of Rs. 50,000/-was paid as advance amount to the defendants -appellants herein in cash and the defendants - appellants herein had agreed to receive the balance consideration of rs. 02,95,000/- at the time of execution of the sale deed before the Jurisdictional Sub Registrar, mysore within three months from the date of agreement of sale. In spite of several requests made by the plaintiff - respondent with the defendants - appellants herein to execute the sale deed and receive the balance sale consideration, the defendants - appellants had been postponing the matter on one or the other pretext. In spite of the sincere efforts by the plaintiff - respondent to execute the sale deed in his favour, the defendants appellants herein made efforts to commit breech of contract before the due date itself. Even though the date of executing the sale deed was on 5th October 1990, as per the terms and conditions of agreement, the defendants appellants herein have got issued the legal notice on 1st October 1990 itself, by terminating the contract which was valid upto 5th October 1990. Immediately after receipt of the said notice, the plaintiff- respondent herein has also issued the legal notice on 3rd October 1990 itself expressing his willingness to perform his part of the contract by paying balance sale consideration to the defendants - appellants herein but the defendants went on postponing the matter without any reason and failed to execute the sale deed. As per the terms of agreement, the defendants appellants are liable to pay Rs. 50,000/- as damages in view of non performance of the contract or for breach of agreement. Therefore, the plaintiff respondent was constrained to issue legal notice on 20th May 1993 calling upon the defendants - appellants herein to refund the advance amount of Rs. 50,000/- along with damages of Rs. 50,000/- for terminating the agreement of sale. In spite of issuing the said legal notice, the defendants appellants herein have failed to establish their case. Therefore, the plaintiff respondent was constrained to file a suit for recovery of a sum of Rs. One lakh together with 24% interest per annum. After receipt of the suit summons from the Trial Court, the defendants - appellants herein have filed the detailed written statement and admitted for having received a sum of Rs. 50,000/- as advance as part of sale consideration in respect of the property in question. However, it is the case of defendants that, they were in need of money and since the plaintiff failed to purchase the schedule property well in time, having no other option, they were constrained to mortgage the ground floor for a sum of rs. 75,000/- to meet the education expenses of the children of the defendants appellants. The plaintiff - respondent, having no other alternative, filed the suit for recovery. The Trial Court on the basis of the pleadings of both parties and the material available on record, has framed six issues for consideration. After critical evaluation of the relevant oral and documentary evidence, the Trial Court has decreed the suit filed by the plaintiff respondent herein. Assailing the correctness of the judgment and decree passed by the Trial Court, the defendants - appellants herein have filed a Regular Appeal in R. A. No. 38/1998 on the file of the Principal District judge, Mysore. The said appeal had come up for consideration before the Lower Appellate Court on 4th July 2001. The Lower Appellate Court after reconsideration and re-appreciation of the oral and documentary evidence and other material available on file, has dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Being aggrieved by the judgment and decree passed by both the Courts below, the defendants - appellants herein have presented the instant appeal.

(3.) THE principal submission canvassed by learned Counsel appearing for defendants - appellants is that, the plaintiff - respondent has failed to act upon the terms and conditions of the agreement. When the plaintiff has failed to pay the balance amount well in time and get the property registered well within the date of agreement, the defendants appellants were constrained to issue a legal notice for termination of the agreement. Due to financial constraints of appellants, the appellants were compelled to enter into an agreement with the plaintiff for sale of the suit schedule property. In view of non payment of the said amount well in time, the appellants were constrained to let out the ground floor of the suit schedule property to third party by way of mortgage and that, due to termination of the contract, the appellants have incurred loss. The plaintiff respondent except issuing notice stating that, he is ready and willing to get the sale deed registered and pay the balance sale consideration, has not shown any bona fide and went on post-poning the matter on one pretext or the other. Further, he submitted that, the plaintiff respondent was never ready to pay the sale consideration and was not in good financial position to pay the remaining amount to execute the sate deed. This aspect of the matter has not at all been looked into nor considered by both the Courts below. To substantiate the said submission, he placed reliance on the judgment of the Calcutta High Court reported in (Jitendra Nath Roy v. Smt. Maheswari Bose) and submitted that, the respondent plaintiff must prove that, he had taken all essential steps to perform his part of agreement and must show that, financially he was in a position to perform his part of contract. Therefore, he submitted that, when this aspect was specifically pointed out, both the Courts below neither considered the same nor have given any finding on that aspect of the matter. Therefore, the judgment and decree passed by both the Courts below are liable to be set aside.