SUVARNAMMA Vs. MUKUNDA RAO

JUDGEMENT

(1.) This appeal was heard ia part on merits a couple of months ago and since, we found this a fit case for settlement out of Court, on the request of the counsel lor the respective parties, we gave them sufficient time for effecting a compromise. However, the counsel, having represented that a coaipromise is not possible on account 6f the rigid-stand taken by the parties, we have heard the matter fully on merits and we have no hesitation in holding that for the reasons to be hereinafter stated, this appeal deserves to be dismissed.

(2.) The defendant in the trial court is the owner of the suit schedule premises and by an agreement dated 8-2-1975 with the plaintiff, he agreed to sell the property for a sum of Rs. 80,000 and also received a sum of Rs. 30,000 on the same day towards spart payment of the sale consideration. It is the case of the plaintiff that on the date of the agreement itself, the defendant gave actual possession of the northern portion of the main building and one vacant room on the southern side in the compound in part performance of the agreement of sale. Further, the defendant promised that the remaining;; portion of the main building in which there was a tenant by name G. N. Chakravarthi, would be given to the plaintiff after getting the said tenant evicted by March or April 1975 and then he would give actual possession of the whole building at the time of the execution of the sale deed. He had further undertaken to attorn the two tenants, who are in occupation of the out-houses, to the plaintiff. It is further the case of the plaintiff that the defendant promised to get a sale deed executed in three months' time from the date of the agreement at Mysore and receive the balance of the consideration of Rs. 50,000 at the time of registration. It is & also the plaintiff's case that the defendant had undertaken to furnish to the plaintiff the capital gains tax clearance certificate and to pay the municipal taxes and other charges due on the suit property till the date of execution of the sale deed and to do all other things ne'cessary to effectively transfer the title over the suit property to thi plaintiff. It is further alleged by the plaintiff that the agreement (which was produced along with the plaint) provided that in case of default by the plaintiff, she would forfeit Rs. 5,000 and also pay Rs. 103 per month as rent by way of damages to the defendant for the portion of the suit property in her occupation and in case of default by the defendant, he would return the advance of Rs. 30,000 with Rs. 5,000 as penalty and also pay interest at 8% per annum on Rs. 25,000 to the plaintiff. It is seen from para 6 of the plaint that these terms, though incorporated in the agreement, were not treated by either party as essential terms of the contract nor have they been acted upon. The other averments in the plaint are not very material for the purpose of this case since the point for decision in this appeal is whether the plaintiff is entitled to the costs of the suit from the defendant since the order of the Court below is that the parties should bear their respective costs.

(3.) The defendant resisted the suit on various grounds. He has admitted that he bad-agreed to sell the suit property to the plaintiff as per Ex.P. 1 but has denied that he promised to give vacant possession of the portion in the occupation of Chakravarthy. He has pleaded that he was ready and willing to perform his part of the contract and the transaction could not be campleted since the plaintiff herself did not come forward-with the balance of sale consideration.