K M JOSE Vs. ANANTHA BHAT

JUDGEMENT

(1.) This appeal by the indigent is directed against the judgment and decree dated 20-4-1985 in O.S. No. 20 of 1981 on the file of the Civil Judge, Puttur, D. K. The respondent in this appeal filed that suit inter alia stating that there was an agreement to sell as per Exhibit P-1 by which the defendantappellant had agreed to convey to him the suit schedule property being agricultural land with buildings, kumki rights, right of way and water etc., that he had paid an advance of Rs. 13,000/- in two instalments and had further agreed to pay a sum of Rs. 5,000/- on or before 30th April 1981 and take possession of the property and complete the transaction of sale within six months from the said date. He further stated that on 27-4-1981, he went to the house of the defendant to tender Rs. 5000/ but did not find him in the house. Therefore, returned without paying the amount. He was accompained by two of his friends. Similarly, he attempted to tender the amount on 30-4-1984 and went to the house of the defendant along with his friends, but did not find the defendant in the house. Therefore, he came back without tendering the amount as he was unable to do so. He received soon thereafter a Lawyer's notice dated 5-5-1981 got issued by the defendant stating that he had forfeited the sum of Rs. 13,000/- paid as advance towards the purchase of the suit schedule properties as time was the essence of the contract and as he had failed to pay the sum of Rs. 7000/- being the balance consideration on or before 30-4- 1981. He got a reply issued through his Lawyer and as the defendant did not make any attempt to convey the property receiving the balance consideration, he was compelled to fife the suit for specific performance.

(2.) The defendant contended in his written statement that in the light of the failure of the plaintiff to pay the balance consideration on or before 30-4-1981 and in the meanwhile he having contracted to purchase some property in Kerala and having paid Rs. 13,000/- advance to the owner of that property, had been compelled to forfeit that amount of Rs. 13,000/- on account of the non-payment of the balance of consideration on or before 30-4-1981 and in the light of that there was no obligation on the part of the defendant to perform his part of the contract. It was also averred that by the conduct of the plaintiff, he had shown no willingness to perform his part of the contract under the suit agreement.

(3.) in the light of the pleadings as above in essence, the following issues were framed: