B PUTTASWAMY Vs. JOSEPH D CRUEZ

JUDGEMENT

(1.) THE 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 dee in respect of the suit hourse 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 plaintiffs readiness and willingness to purchase the property by paying the balance consideration, the 1st defendant wrote a letter to the plaintiff that in stead 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 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 the property in favour of the plaintiff. It is also the plaintiffs contention that the 1st defendant in collusion with the other defendants, has 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 received the same. Stating that the conduct of the 1st defendant amounts 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.) THE defendants contested the suit. According to the 1st defendant, while admitting the plea that he is the owner of the suit property, it is stated that the plaintiff has concealed the trus facts and the suit has been filed with an ulterior motive and in several correspondences between the plaintiff and 1st defendant, this defendant has not agreed to sell the property though the plaintiff had written to him to purchase the suit property for Rs. 1,20,000/- and he had also stated that he is even ready to purchase the property for rs. 1,30,000/ -. However, the 1st defendant has denied the letter written to the plaintiff and according to him, the said letter was written by one elizabeth of which the 1st defendant is not aware of. Further, he has also denied that he has agreed to sell the property to the plaintiff for a sum of Rs. 1,20,000/ -. According to the 1st defendant, the plaintiff had written a letter on 28. 5. 1983 to him that he made enquiry with the sub-Registrar at Mysore for ascertaining the value of the property in order to get it registered and came to know that it might be about Rs. 1,80,000/- for the purpose of registration. According to the defendant, he did not contact the plaintiff nor ask one Dr Shantakumar to deliver the key of the property to the plaintiff. In fact, the defendant did not write any letter nor contacted the plaintiff in this regard. Further, according to this defendant, he has agreed to sell the property for Rs. 1,60,000/- and has taken Rs. 15,000/- as advance and he has alleged that the sale agreement was cancelled between the plaintiff and the defendant and the above transaction has taken place with one R. T. Narasimha Murthy who is the general power of attorney holder of this defendant and plaintiff was aware of the power of attorney executed by this defendant and that the alleged sale agreement in favour of the plaintiff by the defendant is void and unenforceable. It is also stated that this defendant has sent back Rs. 15,000/- to the plaintiff through a demand draft and while denying the rest of the allegations, he has sought for dismissal of the suit. Additional written statement is also filed by the 1st defendant.