BHASKER S KATTEMAR Vs. P E HAMEED

JUDGEMENT

(1.) THIS appeal is filed by the defendant Bhasker S. Kattemar challenging the judgment and decree dated 28-2-2000 passed in Original Suit No. 521 of 1988 on the file of the First Additional Civil judge (Senior Division), Mangalore, D. K. The facts narrated in the appeal memo are as under :

(2.) RANK of the parties in this appeal are referred to as per the ranking before the trial court. Respondent plaintiff filed a suit for refund of advance purchase price and for damages. According to the plaint averments, defendant is the owner of the suit schedule property. It is a commercial plot. Defendant sought for eviction of his tenant in HRC No. 93 of 1976 on the file of the Munsiff, Mangalore. He was in urgent financial need, and thus he was intending to sell and dispose of the suit properties. Defendant appellant approached the plaintiff and by mutual agreement, defendant appellant agreed to sell the suit property for Rs. 10,83,000/. Defendant entered into an agreement in this behalf with the plaintiff on 17-5-1983. Plaintiff paid an advance of Rs. 2,00,000/- on the date of agreement. Separate receipt was passed by the defendant in that regard, apart from mentioning the same in the agreement of sale itself. As per the said agreement, defendant had to execute a sale deed within two years and deliver actual possession of the property on the date of sale deed. Parties thought that the eviction proceedings would be finalised within two years. Delivery of actual possession of the property on the date of the sale deed was a condition precedent. In the event of the plaintiff securing actual possession on negotiation with the tenant who is in possession, lesser consideration amount was to be paid. An option was provided to extend time to the plaintiff to take the sale deed or to seek specific performance by one more year. If the defendant is unable to give vacant possession, plaintiff may at his option treat the agreement as repudiated and cancelled, in which event defendant should refund advance amount of Rs. 2 lakhs with interest at 18 per cent from the date of agreement.

(3.) DEFENDANT succeeded in the eviction proceedings. Plaintiff was ready and willing to do his part of performance in terms of the agreement and take the sale deed by paying the balance consideration amount. This was made known to the defendant also. Plaintiff waited for due performance of the agreement by the defendant. Plaintiff has exercised his option for one more year. Defendant did not execute the sale deed. Defendant did not get possession of the property of the tenant after disposal of the eviction proceedings. Plaintiff issued a legal notice dated 3-5-1986 seeking for specific performance of the agreement. There were exchange of notices. Thereafter, plaintiff came to know that even prior to entering into the agreement of sale with the plaintiff, defendant had entered into an agreement of sale with another person, which was subsequently cancelled by mutual consent. Subsequent to the agreement of sale with the plaintiff, defendant had entered into an agreement to sell the suit property to one Mr. Alwyn veigas by receiving an advance consideration of Rs. 4,41,000/- by cheque, suppressing the agreement with the plaintiff. Plaintiff in these circumstances sought for refund of the advance amount of Rs. 2,00,000/- with interest thereon at 18 per cent from the date of agreement till realisation. Plaintiff also sought for damages by reason of breach committed by the defendant and estimated it at Rs. 2 lakhs. However, he restricted the claim to Rs. 1,00,000/- as pre-estimated damages arising out of breach of contract.