HUSSAINBEE W/O RIYAZ PATEL Vs. RADHA

JUDGEMENT

(1.) The case of the plaintiff is that she and defendants entered into an agreement of sale of the suit land measuring 11 acres 19 guntas for a consideration of Rs.1,41,000/- per acre on 17.10.2007. Obligations were cast on both sides. A sum of Rs.2,50,000/- was paid as an initial advance. It was mutually agreed that within five months from the date of the agreement, the defendants would have to receive the balance consideration and execute the registered sale deed. The plaintiff was ever ready and willing to perform her part of the contract and also to pay the balance amount. In spite of requesting the defendants on a number of occasions to execute the registered sale deed, the defendants did not do so. Hence a legal notice was issued on 29.08.2008 asking the defendants to execute the registered sale deed. The same was replied on 02.09.2008 that the defendants have already cancelled the agreement and forfeited the advance. Based on these averments, the instant suit was filed seeking for a decree of specific performance of contract and in the alternative, refund of earnest money.

(2.) On service of summons, the defendants entered appearance. Defendant No.1 filed a written statement, which was adopted by the remaining defendants. It was contended that while admitting the sale agreement, time was the essence of the contract. That the plaintiff was never ready and willing to perform her part of the contract. She was not ready to pay the balance consideration within the stipulated time of five months. Thus, the plaintiff herself has committed breach of non- compliance of the terms of the sale agreement. Since the plaintiff has not come forward to perform her part of the contract, she is not entitled for any decree. That the defendants have published a notice in the newspaper on 21.06.2008 calling upon the plaintiff to perform her part of the contract within 10 days, failing which the agreement would stand cancelled. The same was not replied.

(3.) Based on these pleadings, the trial Court framed the following issues: