Y N GOPALA RAO Vs. D R LAXMINARAYANA

JUDGEMENT

(1.) THIS is plaintiff's first appeal from the judgment and decree dated 1-4-1993, delivered by Sri r,h. Raddi, Principal Civil Judge and CJM. , Shimoga, in Original Suit No. 109 of 1986, refusing to grant the decree for specific performance of contract, sought in the suit, and in alternative granting the decree in part with full costs, for an amount of Rs. 2,002/- with interest at the rate of 18 per cent per annum from 27-10-1983, till realisation of the entire amount against the defendants.

(2.) THE facts of the case in the nutshell according to the plaintiff's case, are that Smt. Sakamma entered into an agreement with the plaintiff on July, 2, 1983 and agreed to sell the suit schedule property in favour of the plaintiff-appellant for a sum of Rs. 1,06,001/- and took an advance of rs. 1,001/- on the date of the agreement. Under that agreement, it was agreed that she will execute the sale deed within 4 months from the date of agreement, after having agreed to receive the balance of sale price of Rs. 1,05,000/- before the Sub-Registrar. It was agreed that expenses necessary for the registration and stamp papers would be taken by the plaintiff-appellant. Before expiry of the period of 4 months, Smt. Sakamma died on 1-9-1983, that is she died after two months after having entered into the agreement. Plaintiffs case is that defendants are the legal representatives of deceased Sakamma and the plaintiff's case has been that he has always been ready to make payment of the sale price and take the sale deed in his favour. Plaintiffs case is that Sakamma earlier to the agreement, executed a Will and by virtue of the same, all her right, title and interest in the property were bequeathed in favour of defendants 3 to 5 in the case. Plaintiff's case is that in spite of demand, defendant did not execute the sale deed by taking the balance of sale price, so plaintiff got the notice issued, calling upon the defendants to execute the sale deed and the defendants replied the same denying the agreement. So, the need for the suit did arise and suit had been filed for specific performance of contract to execute the sale deed. Plaintiff asserted that plaintiff is and has always been ready and willing to perform his part of the contract, by making payment of balance of sale price and incurring expenditure for registration of the same and for delivery of possession of the property. In the alternative, plaintiff has also prayed that if plaintiff is not found to be entitled to the decree for specific performance of contract, it is prayed for refund of the advance sum with damages to the tune of Rs. 4,000/- in all for Rs. 5,001/- may be passed with costs. The suit schedule property has been most specifically described in the plaint.

(3.) THE defendants filed the written statement, denied the execution of any agreement, namely the agreement dated 2-7-1983 by Sakamma in favour of the plaintiff. He also denied the receipt of the advance money by the deceased and they stated that it was not within his knowledge. Defendant 1 has in his pleadings stated that Sakamma had lost her health due to old age and she was not in a position to execute any document during her period. Defendant 1 pleaded there had been a collusion between the plaintiff and defendants and therefore agreement was got executed or forged as signatures thereof do not tally with the signatures of Sakamma and the other defendants got the Will executed. Defendant 1 further alleged that plaintiff has not deposited the alleged balance of sale consideration in the Court and as such the plaintiff is not entitled to the relief, and suit is not maintainable. Defendants 3 to 5, filed their written statement and they alleged that they are not aware of any such agreement as pleaded by the plaintiff and they deny the execution of alleged agreement dated 2-7-1983, by Sakamma in favour of the plaintiff, They took the plea of fraud. They also alleged that Sakamma did not know reading and writing. They further alleged Sakamma had a right to forfeit the alleged advance amount of Rs. 1001/- in the event of failure by the representative to perform his part of the agreement. Defendants denied that the plaintiff was ready and willing to perform his part of the contract and to pay the balance amount. They alleged that at no time the plaintiff was ready or willing to perform his part of contract, nor did plaintiff approach the Defendants with the balance of sale consideration. The defendants further alleged that the value of the suit has gone up, in order to deprive the defendants of their rights, plaintiff has put forth a false claim. Defendant 1 and also defendants 3 to 5 alleged that the plaintiff has not deposited the balance of sale consideration and as such it cannot be taken that he has been ready and willing to perform his part of the contract and the suit brought by the plaintiff is not maintainable. They alleged the suit be dismissed.