K VIMAL KUMAR JAIN Vs. N SUJATHA SRIDHAR

JUDGEMENT

(1.) The present appellant was the defendant against whom the present respondent as a plaintiff had instituted a suit in the Court of learned XIX Addl.City Civil & Sessions Judge, Bengaluru City, (hereinafter for brevity referred to as 'trial Court'), in O.S.No.1145/2000, for recovery of a sum of Rs. 1,10,000.00 with Court cost and such other reliefs as the Court deems fit. The said suit came to be decreed by the judgment and decree of the trial Court dated 31.01.2006. It is against the said judgment and decree, the defendant in the trial Court has preferred this appeal.

(2.) The summary of the case of the plaintiff in the trial Court is that the plaintiff and defendant entered into an Agreement of Sale on 27.10.1999, wherein the defendant had agreed to sell the suit schedule property to the plaintiff for a sum of Rs. 1,40,000.00. In that connection, the defendant had received a sum of Rs. 55,000.00 as an advance amount in the sale price through the cheque drawn in favour of the defendant and had encashed the same. Thereafter, even though the plaintiff was ready and willing to purchase the site as per the terms of the Agreement of Sale, but, she noticed that the site was measuring shorter than what was agreed to be sold by the defendant to the plaintiff. In the Sale Agreement, it was shown that the site measures 30' x 40' by the defendant, however, the site was not actually measuring such measurement and it was shown to be measuring only 1.1 gunta. As such, the plaintiff requested the defendant to come and fix the boundary of the site after measuring the site. In that regard, she had also issued a legal notice. But, the said notice did not invoke any response. Since the defendant never came forward to fix the boundary of the site with its correct measurement as per the terms of the agreement, the plaintiff was constrained to issue one more legal notice calling upon him to refund the advance amount paid by her as per the terms of the agreement. The defendant sent an untenable reply disowning his liability, which constrained the plaintiff to institute a suit for recovery of money of a sum of Rs. 1,10,000.00.

(3.) In response to the summons, the defendant tendered his appearance and filed his written statement, wherein he admitted that he being the owner of suit schedule property, had entered into an agreement with the plaintiff for the sale of the property for a consideration of Rs. 1,40,000/-. However, he disputed that there was any breach of terms of the agreement from his side. On the other hand, his contention was that the plaintiff was furnished with the copy of the original Sale Deed standing in the favour of the defendant/vendor, wherein the measurement of the property was given, as such, there was no reason for the plaintiff to believe that the site was not measuring 30' x 40' and accuse the defendant for the alleged breach of the contract.