K K ACHAYYA Vs. SYED MUKTHAN

JUDGEMENT

(1.) THIS appeal arises from the judgment and decree dated 6th October, 1987, delivered by IV Additional City Civil Judge, Bangalore in Original Suit No. 2243 of 1981, decreeing the plaintiffs suit for specific performance of contract as well as granting the decree for permanent injunction, directing the defendant not to sell or dispose of the suit property in any manner and also restraining him from interfering with the plaintiffs possession.

(2.) THAT the plaintiffs case, as per plaint allegations has been that originally on 18-10-1977, defendant had entered into an agreement to sell, in respect of plaint schedule property, for a sum of Rs. 1,35,000/-and that agreement was reduced into writing. According to the plaintiffs case, on 18-10-1977, plaintiff had made an advance payment of Rs. 25,000/- to the defendant-appellant and subsequently on 21-11-1977, plaintiff again paid and defendant received from him a sum of Rs. 25,000/-, towards sale price and executed the receipt. Plaintiffs case is that an application was submitted by both the parties on 21-11-1977, to the competent authority, for grant of permission for sale of the schedule property and permission for sale had been granted. On 16-1-1978. plaintiff's case is that he paid and defendant received a further sum of Rs. 10,000/- and executed a receipt on stamp paper. Plaintiffs case is that defendant agreed to deliver the possession of the property within 3 months, but at the instance of defendant, the time was extended to 6 months for giving the vacant possession, as well as to clear the encumbrances on the property, as defendant had obtained loan from Syndicate Bank, by depositing the title deeds. So defendant agreed to discharge the said loan and obtain the documents of title deeds. Plaintiffs further case is that on 22-6-1978, another agreement was entered into between the plaintiff and the defendant, whereunder the defendant delivered the possession of the suit property to the plaintiff and by the said agreement, defendant agreed to complete the transaction of sale as well as to execute sale deed within one month from the date of said agreement that is 22-6-1978. Plaintiff claimed to be in lawful possession of the property, in view of the above allegations. Plaintiff alleged in paragraph 8 of the plaint that the plaintiff has always been ready and willing to perform his part of the contract and that defendant has not delivered the documents of title to the plaintiff. It was stated in para 8 further that plaintiff learnt that the defendant had not discharged the loan due to the Syndicate Bank. Plaintiffs case is that he addressed a letter on 9-12-1980, to the defendant calling upon him to execute the sale deed and receive the balance within two weeks from the date of receipt of the said letter. Plaintiff alleged that defendant had obviously received the said letter and has caused a notice through his Advocate issued on 16-12-1980, putting forth false and untenable contentions and as such it appears the plaintiff alleged, that the defendant is not willing to perform his part of the contract and that defendant cannot unilaterally treat the contract as cancelled. Plaintiff claimed to be entitled to the relief of specific performance of contract of sale. In paragraph 10, plaintiff has again stated that he has always been ready and willing to perform his part of contract and infact to the knowledge of the defendant, plaintiff made necessary arrangements and obtained challans for purchasing the general stamp paper required for drawing the sale deed. In view of the defendant's conduct, plaintiff alleged, plaintiff had no alternative but to take the legal action and so filed the suit. The plaintiff claimed the reliefs, as mentioned above.

(3.) ON notice being served, defendant-appellant filed the written statement. The defendant admitted that originally he had entered into an agreement on 18-10-1977 with the plaintiff to sell the schedule property to the plaintiff and by the time, the second agreement dated 22-6-1978 had been executed, a sum of Rs. 60,000/- was paid to him by the plaintiff towards the advance. Defendant asserted plaintiff had agreed to deposit the balance of sale consideration in the name of defendant in the Syndicate Bank, Wilson Garden Branch and to transfer the same at the time of completion of the sale and so the plaintiff was put in possession of the schedule property. Defendant asserted that defendant was ready and willing to clear the personal loans in Syndicate Bank and to perform his part of contract of sale of the property free from encumbrances. Defendant alleged that though defendant was ready and willing to complete the sale within the agreed time, the plaintiff went on postponing on one pretext or other since he was in possession of the property. Defendant's case is plaintiff failed to purchase the schedule property and to pay the balance sale consideration, and as such the agreement executed between the parties stood cancelled and the advance amount paid by the plaintiff had been forfeited as per agreement. Defendant further alleged that plaintiffs possession was unlawful and plaintiff is liable to pay the compensation. Defendant further alleged that the suit is time barred and not maintainable. It was further asserted that the suit in question was not maintainable and the plaintiff himself committed the breach of agreement by not depositing a sum of Rs. 75,000/- in the Syndicate Bank in defendant's name.