K NARAYAN REDDY Vs. RAMAKRISHNA REDDY

JUDGEMENT

(1.) THE defendant in O. S. No. 2400/85 has preferred the above appeal in R. F. A. No. 766/95 while the plaintiff in the very same suit has filed r. F. A. No. 768/95. . While defendant is aggrieved by the fact that a suit has been decreed, the plaintiff is aggrieved by the fact that the marginal land has not been made subject matter of the decree for specific performance.

(2.) THE facts of the plaintiff's case in brief are that :" On 17. 12. 1975 the defendant entered into an agreement of sale with plaintiff agreeing to sell the building site bearing CITB no. 18-A, First Phase, Gokul I Stage, Bangalore and also adjacent margin land, agreeing to sell the same at the rate of Rs. 1357-and Rs. 95/- respectively per square yard. The defendant had agreed and undertaken to pay necessary layout charges, taxes' and other amounts and rates to the city Improvement Trust Board in respect of the margin land and obtained possession certificate from the CITB and to deliver the same to plaintiff. The defendant had represented that necessary documents including possession certificate pertaining to the said site and the margin land (after obtaining the same from CITB) would be delivered to the plaintiff. On that day, that is on 17. 12. 1975 the plaintiff paid the defendant an amount of Rs. 16,0007- as advance and part of the purchase money. Apart from the said amount, the defendant also received a sum of Rs. 18,000/- on 1. 6. 1976 and Rs. 5,000/- on 6. 7. 1982 of which the later payment was received by the defendant in the presence of one Sri Govnidaraju son of Sri Krishna Reddy of yeshwanthapur. The defendant has not issued receipt in respect of the said two amounts. Though the defendant had represented and assured the plaintiff that he would deliver all the necessary documents including the possession Certificate and other documents in respect of the margin land after securing the same from the CITB (now BDA) with in a short time, but the defendant failed and neglected to act up to his promise and undertaking. The plaintiff was put in possession of the suit schedule property by the defendant in pursuance of the agreement dated 17. 12. 1975 and also in part performance of the contract of sale. The plaintiff after obtaining possession of the suit schedule property from the defendant had leased out the site to one Sri Mohammed Salahia son of Mohammed Ghouse who had executed rental Karaar in favour of plaintiff on 30. 05. 1977 which document has been attested by the defendant. The plaintiff is collecting the rents from the said tenant. The parties have all along treated the agreement as subsisting and that the time is not the essence of Contract. Out of the total amount of Rs. 45,342/- payable by the plaintiff. He has paid total sum of Rs. 39,000/- to. the defendant as referred to above. The plaintiff has been all along ready and willing to perform his part of the contract to pay balance consideration of rs. 6342/- repeated requests and demands to the defendant. Inspite of plaintiff's repeated requests and demands, the defendant has failed and neglected to fulfil his obligation under the Contract. The plaintiff got issued legal notice dated 8. 6. 1985 calling upon the defendant to receive the balance consideration and to execute and register the sale Deed after delivering the possession certificate and other documents which notice has been received. by the defendant on 13. 6. 1985. The defendant who had received the notice has not chosen to comply with Demand made therein. Now it is learnt that the defendant has been making unduly hasty attempts to dispose of the suit schedule property with the sole intention of ulterior motive of defeating with the just claim of the plaintiff and to cause wrongful loss to him and to make wrongful gain for himself. Cause of action for the suit arose on 17. 12. 1975 the date on which the suit agreement of sale was. executed by defendant and on subsequent dates that is 1. 6. 76, 5. 7. 82 the date on which the defendant had received advance amounts of rs. 18,0007- and Rs. 5,000/- respectively and subsequently when the defendant failed and neglected to comply with the demand made in the notice dated 8. 6. 1985 and received by the plaintiff on 13. 6. 1985 and subsequently when the specific performance of the contract is deemed to have been refused by the defendant. Hence this suit for a decree directing the defendant to execute the Sale Deed and have the same registered after receiving the balance of Sale Consideration of Rs. 6342/- from the plaintiff and on the failure of the defendant to execute the Sale Deed, the Court may have the same executed and registered at the cost of the plaintiff and restraining the defendant from disposing of and alienating the schedule property and from interfering with the plaintiff's peaceful and lawful possession and enjoyment of the schedule property etc.

(3.) THE plaintiff got amended his plaint subsequently by including further contentions that the defendant is bound in law and in fact, to obtain necessary possession Certificate from the City improvement Trust Board (now BDA) in respect of margin land described in the schedule after paying the necessary layout charges, taxes, etc. , and then to execute the sale deed in favour of the plaintiff as agreed to and undertaken under the agreement dated 17. 12. 1975 and also prayed for directing the defendant to obtain possession certificate in respect of the marginal land described in the suit schedule by paying necessary taxes, rates, etc. , to the then CITB (now BDA) and to execute and register the Sale Deed in favour of the said agreement of Sale in favour of plaintiff after receiving balance consideration from the plaintiff.