BEENA ANTHONY W/O ANTHONY CHACKO Vs. KRISHNAPPA

JUDGEMENT

(1.) The plaintiff has filed this writ petition against an interlocutory order dated 22.11.2018 whereby the trial Court has rejected I.A.No.36 filed under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 made in O.S.No.1231/2006 with cost of Rs.500/-.

(2.) It is the case of the plaintiff that the defendants are the owners of the suit schedule property in question. They have entered into an agreement of sale on 01.07.2004 for a valuable consideration of Rs.10,33,500/- and on the same day, the defendants have received a sum of Rs.2,00,000/- as advance from the plaintiff. Though the plaintiff was repeatedly demanding the defendants to comply with the terms of the agreement of sale and to execute a sale deed in favour of her, the defendants avoided the same on one way or the other. Therefore, the plaintiff has filed the suit for specific performance to enforce the agreement of sale dated 01.07.2004.

(3.) The defendants have filed their written statement denying the averments made in the plaint. They contended that only the first defendant had executed the sale agreement dated 01.07.2004 and received the advance amount of Rs.2,00,000/-. The other defendants never executed any such sale agreement as alleged in the plaint and the plaintiff shall prove the same. They have further contended that the first defendant had received the advance amount and the other defendants have no knowledge of the same. The time of eleven months was essence of contract and even assuming, but not conceding that if the last payment was received on 30.11.2004, even then also the sale transaction should have been completed by the end of October, 2005 as admitted by the plaintiff herself. The notice calling upon to execute the sale deed was issued only on 26.12.2005 i.e. after lapse of time fixed in the agreement and therefore, sought for dismissal of the suit.