OUSEPH Vs. DEVASSY

JUDGEMENT

(1.) The revision petitioners are the defendants in a suit for specific performance. The first petitioner and the respondent are brothers. The former had obtained a loan of Rs.734/- from the latter. While so, on 22-6-1982 an agreement was entered into between them whereby the revision petitioners, who are man and wife agreed to sell 26.5 cents of land to the respondent for consideration at the rate of Rs.325/- per cent. Out of the total sale consideration of Rs.8,612.56 so due, Rs.734/- was adjusted towards the loan amount. The total consideration paid and received on the date of agreement was Rs.7,400/- and with regard to the balance, provision was made in the agreement. The respondent was also put in possession. In due course, the respondent moved for specific performance and the suit was decreed in his favour on 31-3-1987. It was directed that the plaintiff should pay a sum of Rs. 1,212.50 on receipt of which the defendants should execute the sale deed before 30-6-1987. Alleging that the defendants have failed to execute the conveyance on receipt of the money offered by the plaintiff, Execution Petition was filed on 6-8-1986 and in the absence of any objection to the Execution Petition, the execution of document was allowed as prayed for.

(2.) During the pendency of the E.P. the plaintiff deposited the balance amount due to the defendants on 11-2-1997. On the next day i.e., 12-2-1997 the defendants filed I.A.No. 494/97 on the trial side invoking S.28 of the Specific Relief Act and seeking rescission of the agreement to sell. The application was resisted and during the pendency of this application plaintiff filed I.A.No. 1959/97 also on the trial side seeking condonation of the delay involved in the deposit of the balance sale consideration. The court below considered the two petitions together and passed the impugned order dismissing the defendants application I.A.No. 494/97 and condoning the delay in the deposit as prayed for in I.A.No. 1959/97.

(3.) The learned counsel for the revision petitioners submitted that the court below has not approached the question from the proper perspective and that in the absence of any plausible explanation on the part of the plaintiff in not making the deposit of the balance sale consideration within reasonable time, the court below should have upheld rescission of the contract as prayed for in I.A.494/97. Case law was also relied on in this regard. As regard the contention of the plaintiff, deposed to by him when he went to the box, that in the year 1987 he had issued a notice calling upon the defendants to receive the balance sale consideration at the Sub Registrar's office and also waited for the defendants there, on that day though in vain, it was argued that there is no documentary evidence adduced in support of the said plea.