MARY Vs. SHEELA THOMAS

JUDGEMENT

(1.) THIS appeal is filed by the defendants against the judgment and decree in O. S. No. 312 of 1995 of the Subordinate Judge's Court, Kochi. The plaintiff through her power of Attorney Holder filed the suit for specific performance of an agreement for sale dated 11. 7. 1994 executed by the defendants. Plaint Schedule property having an extent of 7. 160 cents comprised in Survey No. 1083 of Palluruthy Village and the building thereon belong to the defendants. They agreed to sell the property for a sale consideration of Rs. 2,35,000/- and executed Ext. A1 agreement. On the date of agreement, the defendants received an amount of Rs. 50,000/- as advance, from the plaintiff. As per the terms of the agreement, plaintiff paid a further sum of Rs. 50,000/- on 10. 9. 1994. The period fixed for performance of the agreement was 9 months. The defendants were bound to execute the sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs. 1,35,000/- on or before 11. 4. 1995. The plaintiff was and is ready and willing to perform her part of the contract. As she was employed at Qathar, she authorised her husband through the Power of Attorney to act on her behalf. The plaintiff represented by her husband requested the defendants several times to execute the sale deed on receipt of the balance sale consideration. The defendants refused to execute the sale deed and instead demanded an enhanced sale consideration of Rs. 4 lakhs. Thereupon, the plaintiff's husband preferred a complaint before the Circle Inspector of Police, Kochi Cusba Police Station. Pursuant to the said complaint, the defendants were summoned to the police station, but they refused to comply with Ext. A1. Since the defendants committed breach of contract, plaintiff issued registered notice on 1. 6. 1995 through Advocate, demanding execution of the sale deed. The plaintiff was and is ready to pay the balance sale consideration and willing to perform her part of the contract. Since the defendants retracted from the contract, the suit is filed for a decree directing the defendants to execute the sale deed in favour of the plaintiff or her husband after receiving the balance sale consideration of Rs. 1,35,000/- within a specified time and in default to execute the sale deed through court and for a permanent injunction restraining the defendants from alienating the same.

(2.) THE defendants in their written statement admitted the execution of the agreement for sale and receipt of Rs. One lakh. It is also admitted that 9 months time was stipulated for the performance of the agreement which expired on 10. 4. 1995. THE plaintiff was never ready and willing to perform her part of the contract due to insufficiency of funds. Neither the plaintiff nor her husband informed them that they were ready and willing to perform their part of the contract. THE allegation that the defendants demanded enhanced sale consideration is false. THE allegation that the husband of the plaintiff preferred a complaint before the Circle Inspector of Police, Kochi Cusba Police Station and the Circle Inspector of Police summoned them are false. THE defendants were always ready and willing to execute the sale deed provided they were given the balance sale consideration. It is further contended that even after the expiry of the period, the defendants were ready to execute the sale deed if the plaintiff was ready to pay the balance sale consideration. THEy issued notice to the plaintiff terminating the contract which was returned unserved. THE plaint schedule property is the only property owned by them and they are residing in the said building. If a decree is passed for specific performance, the defendants will be put to irreparable hardship and injury.

(3.) THE lower court after appreciation of the evidence and pleadings decreed the suit. Against the said decree and judgment, the defendants filed this appeal. We heard Sri. S. Sreekumar, learned counsel for the appellants and Sri. A. X. Varghese, learned counsel for the respondent. It is submitted by the learned counsel for the appellants that the court below has not properly appreciated the evidence. THE respondent was not ready and willing to perform her part of the contract. Ext. B1, the letter sent by her shows that she has no sufficient funds and she has repudiated the contract. In Ext. B1 she has expressed her inability to raise funds for paying the balance sale consideration. It further shows that she will be satisfied with the return of advanced money. But the lower court without appreciating those facts decreed the suit. So according to the learned counsel, respondent is not entitled to get a decree for specific performance and injunction. But the contention of the respondent is that there is sufficient evidence to show that the respondent was and is ready to perform her part of the agreement.