B. PUTTASWAMY Vs. JOSEPH DCRUEZ AND OTHERS

JUDGEMENT

(1.) THIS appeal is by the Plaintiff being aggrieved by the order of the II Addl. Civil Judge, Mysore in OS 256/1983. The Plaintiff had filed a suit for specific performance against the Defendants.

(2.) ACCORDING to the Plaintiffs, Defendants are the absolute owners of the suit schedule house and 1st Defendant entered into an agreement with the Plaintiff for the sale of the said house in favour of the Plaintiff for a consideration of Rs. 1,20,000/ - and in furtherance of the said agreement, he wrote a letter to the Plaintiff and also received a sum of Rs. 15,000/ - as advance consideration. Subsequently on 24 -5 -1983 the Defendant wrote a letter expressing his desire and decision for selling the said property in favour of the Plaintiff for the agreed sale consideration. In reply, the Defendant asked the Plaintiff to collect the advance and also to execute a sale deed in respect of the suit house property. According to the Plaintiff in unambiguous terms, the 1st Defendant although intended to sell the property in favour of the Plaintiff and in spite of the Plaintiff's readiness and willingness to purchase the property by paying the balance consideration, the 1st Defendant wrote a letter to the Plaintiff that instead of Rs. 1,20,000/ - being the sale consideration agreed upon previously, he had unilaterally raised the consideration to Rs. 1,60,000/ - and had also collected an amount of Rs. 50,000/ - as advance from a third party. Thus, by returning the amount of Rs. 15,000/ - received from the the Plaintiff, the Defendant tried to repudiate the contract impliedly. According to the Plaintiff, in part performance of the agreement, the 1st Defendant had also parted with possession of he property in favour of the Plaintiff. It is also the Plaintiff's contention that the 1st Defendant in collusion with the other Defendants, ha committed breach of contract. The Plaintiff has pleaded that he was ready and willing to perform his part of the contract by paying the remaining sale consideration and he persuaded the 1st Defendant to execute the sale deed. Rather, the Defendant has sent back the sum of Rs. 15,000/ - to the Plaintiff on 26 -6 -1983 through a demand draft. However, according to the Plaintiff, he is said to have returned the said demand draft to the 1st Defendant under a registered post and that the 1st Defendant did not receive the same. Stating that the conduct of the 1st Defendants amount to breach of contract which he had solemnly entered into and further having noticed the 1st Defendant making hectic attempts to sell the property in favour of a third party for a higher amount, he has filed the suit. It is further alleged that subsequent to the filing of the suit, the 3rd and 4th Defendants filed suits against the 1st Defendant in OS 339/1983 and 338/1983 before the Civil Judge, Mysore for recovery of money advanced by them to the 1st Defendant and these two suits have been filed on 20 -10 -1983.

(3.) DEFENDANTS 3 and 4 have also contested the suit by filing written statement denying the allegations made in the plaint. According to these Defendants, the suit filed by the Plaintiff is not maintainable. The Plaintiff asserts his claim only through the 1st Defendant and when the property has been sold in Court auction, the Plaintiff has sought for cancellation of the sale and these Defendant have purchased the property in the Court auction in Ex. No. 200/1983 and 202/1983 and have also paid the sale consideration. It is also their contention that the Plaintiff is an intruder and in unauthorised occupation of the eastern portion of the house. Stating that 3rd and 4th Defendants are in exclusive possession of the respective properties and stating that they are the bonafide purchasers of the suit house in the auction sale held by the Court, it is contended that the Plaintiff has no right and is estopped from violating or otherwise the auction sale held by the Court. It is further stated that the proceedings are collusive and accordingly, resisted the suit.