N VENKATAPPA Vs. LINGAPPA REDDY

JUDGEMENT

(1.) THIS is defendant's appeal against the judgment and decree dated 14th June, 1988, delivered by Smt. Manjula Chellur, XI Additional City Civil Judge, Bangalore in Original Suit No. 3005 of 1983 (A. Lingappa Reddy v. N. Venkateshappa), decreeing the plaintiff's suit for specific performance of contract to execute the sale deed and directing the defendant appellant to execute the sale deed in respect of Sy. No. 71, measuring O. 10 guntas and 0. 25 guntas of land in Sy. No. 74/18, after having received the balance consideration of Rs. 78,000/ -. It further directed if the sale deed is not executed as directed, the plaintiff shall be at liberty to deposit the balance consideration of Rs. 78,000/- in Court and get the sale deed registered in his name, though a Commissioner to be appointed by the Court. The Trial Court further directed the defendant and restrained him permanently from interfering with the peaceful possession and enjoyment of the aforesaid land that is Sy. No. 71 measuring O. 10 guntas and Sy. No. 74/1-B, measuring 25 guntas. The defendant-appellant has challenged the entire decree.

(2.) THE facts of the case in the nut-shell are that the plaintiff-respondent filed the above mentioned suit No. 3005/83, for the decree for injunction restraining the defendant from interfering with the plaintiff's possession over the suit property, as well as prayed for grant of decree directing the defendant-appellant to execute a registered sale deed in favour of the plaintiff or his nominee or nominees, or in default by him for execution deed by the Court on his behalf conveying or transferring the suit schedule property in terms of the agreement of sale dated 14-2-83, after receiving the balance of the sale consideration. Plaintiff had also prayed the decree for injunction as mentioned earlier. The relief for specific performance of the contract was added by amendment of the plaint. The property in the schedule mentioned consists of an area of 10 guntas of Sy. No. 71 and another area of five and half guntas of aforesaid Sy. No. 71 and 0. 25 guntas of Sy. No. 74/1b, the boundaries of which have been specifically given in the schedule to the plaint and which land is situate in Kowdenahally, K. R. Puram Hobli, Bangalore South Taluk. Plaintiff's case is that defendant had agreed, as per agreement dated 14-2-83, to sell the land, extent of which and the numbers of which have earlier been mentioned, in the body of this judgment, for a sale consideration of Rs. 1,60,000/ -. The defendant according to the plaintiff's case, in terms of agreement dated 14-2-83, had received an advance of Rs. 50,000/- from the plaintiff, towards the sale consideration. Plaintiff's case is that under the agreement, plaintiff had agreed to pay a sum of Rs. 10,000/- by way of further advance towards the balance of consideration on or before 16-3-83 and on such payment being made, the defendant had agreed to deliver the possession of the suit property to the plaintiff and to put the plaintiff in possession thereof, to enable the plaintiff to form a layout of sites. Plaintiff's case is that a sum of Rs. 10,000/- was paid by the plaintiff to the defendant and the defendant received that sum of Rs. 10,000/- on 17-6-83. Plaintiff's further case is towards the remaining amount of Rs. 1,00,000/-, plaintiff was required to pay a sum of Rs. 50,000/- on or before 16-6-83, and the remaining balance was to be paid on or before 16-12-83. The plaintiff was given liberty to form the roads and lay-out of sites etc. , and plaintiff was also given liberty to sell such sites. Plaintiff's further case is that the defendant had delivered the possession as well as some of the documents of title and the remaining documents of title were still to be delivered besides the defendant had to comply with such other formalities regading the sale and registration of documents under law. Plaintiff has averred that as agreed plaintiff was always ready to pay to the defendant, the amounts of balance of consideration, but defendant did not turn up to collect the amounts from the plaintiff intentionally with ulterior motives and the plaintiff himself wrote a letter dated 19-7-83 to the defendant, asking him to collect a sum of Rs. 50,000/- towards balance of sale consideration and the said letter was sent by registered post A/d i. e. with acknowledgment due and was duly served. Plaintiff has further averred that the stipulated time both under the agreement of sale or under law has not yet expired and the agreement of sale had been still in force. But defendant got issued a notice on 14-9-83, which was untenable and the same has been replied. Plaintiff claims to be in possession of the land under the agreement, in part performance of the contract and he has stated that he spent the amount in forming the lay-out. Plaintiff in paragraph 11 stated that defendant has made attempts to interfere with the plaintiff's possession and to demolish the roads formed and to remove the stones put up by the plaintiff etc. , and stated if the defendant is allowed to interfere in the manner he likes, the plaintiff will be put to irreparable loss and injury. Plaintiff asserted that he is and always been ready and willing to pay the balance of sale consideration of Rs. 78,000/- with regard to 0. 25 guntas of land in Sy. No. 74/1b and 0. 10 guntas of land of Sy. No. 71, deducting Rs. 22,000/- out of the total balance of sale consideration of Rs. 1,00,000/-, with regard to five and half guntas of land in Sy. No. 71 as the same does not stand in the name of the defendant. Plaintiff submitted that on payment of Rs. 78,000/-, the plaintiff is entitled to obtain the registered sale deed. He asserted the cause of action to have accrued on 17-6-83, as well as on 1-10-83, when according to the plaintiff, defendant refused to execute the sale deed in favour of the plaintiff.

(3.) WRITTEN statement and additional written statement were filed by the defendant. According to the defendant, agreement dated 14-2-83 is an admitted fact; that defendant "agreed" to sell the land to the plaintiff for a sum of Rs. 1,60,000/ -. It has also been admitted that defendant received Rs. 60,000/- as advance under the said agreement. Defendant has also agreed that a sum of Rs. 10,000/- had to be paid on 16-3-83 and that under the agreement, the defendant had to put the plaintiff in possession of the property in question. The defendant's case is that plaintiff failed to make payment, after repeated requests, even on 16-6-83. Plaintiff forced the defendant ot accept Rs. 10,000/- with promise to pay a further advance of Rs. 50,000/- on 18-7-83, as there was delay in payment of Rs. 10,000/ -. It was also agreed between the parties that possession of property in question will be given to the plaintiff only on payment of subsequent advance of Rs. 50,000/-, which was already due to be paid by that time, as per the agreement. But on 16-6-83 plaintiff took another one month's time and it was agreed that he will pay Rs. 50,000/- on 18-7-83. Defendant asserted that he had never handed over possession of the suit property to the plaintiff. Defendant had pleaded that the plaintiff has failed to comply with the terms of the contract as well as the under taking was given, so legal notice was issued to rescind the agreement forfeiting the advance in terms and conditions contained in the said agreement and as such, defendant's case is that plaintiff is not entitled to file the suit as well as he is not entitled to get the decree. Defendant admitted that he had delivered some of the documents of title to the plaintiff at the time of executing the agreement to sale and the documents were given bona fide and that the plaintiff is bound to return the said title deeds to the defendant. Defendant's case is that the plaintiff instead of paying the said sum of Rs. 50,000/- on 18-7-83, as undertaken by him, again took time for one more month. Even then the defendant obliged to wait for one more month as requested, but the plaintiff never cared to comply with his promises. In these circumstances, the defendant after having failed in his efforts to make the plaintiff to comply with the terms undertaken, defendant issued notice dated 12-9-83, rescinding the contract of sale and forfeiting the advance. The defendant's case is that agreement is not now in force nor is it enforceable and suit is liable to be dismissed. In additional written statement, defendant denied plaintiff's allegation that he is and has always been ready and willing to perform his part of the contract, that is willing to pay the balance of sale consideration. He stated that plaintiff has never come forward to pay the balance of sale consideration. It is admitted by the defendant in para 1 of the addl. written statement that five and half guntas in Sy. No. 71, does not stand in the name of defendant and plaintiff had agreed to purchase the same along with other lands, hence he is not entitled to deduct Rs. 22,000/- from the balance of sale consideration. Defendant's case is that plaintiff did not come forward to pay the balance of sale consideration, the question of executing registered sale deed does not arise.