JOHN Vs. ABRAHAM JOSEPH

JUDGEMENT

(1.) THIS appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kottayam in O.S.510/87. The suit is one for specific performance of the contract. The trial Court granted a decree in favour of the plaintiff and it is against that decision the defendants have come up in appeal. The brief facts necessary for the disposal of the appeal are stated as follows.

(2.) THE plaintiff had borrowed some amount from the first defendant and as security without handing over possession had executed a document in favour of the first defendant. That was in the year 1982. Subsequently in 1984, the parties had entered into an agreement whereby the first defendant had agreed to reconvey the property to the plaintiff for a consideration of Rs.40,000/- out of which Rs.25,000/-is already paid and the remaining Rs.15,000/- is to be paid and the document is to be executed on or before 30.10.84. It is also stated that in case of breach there are remedies for both the parties. Since the plaintiff has not given the property he had filed the suit for specific performance of the contract.

(3.) EXT.B8 is a notice issued by the defendant's advocate to the plaintiff. Some how or the other it is seen returned as refused. It is stated in that notice that unless and until the plaintiff goes to the Registrar office at Kaduthurity on 30.10.84 at 10 a.m. with the balance consideration and the document registered, the agreement will stand terminated and he will be liable for the damages. The version of the plaintiff is he did not receive the notice and that the post office building is situated in a building which belongs to the relative of the defendant and therefore it has been returned as refused. But by going through the terms of EXT.A4 the stipulation in the document is not to send notice without payment for termination of the contract. What is necessary as per the document and which is material is that the defendant has to pay back the amount of Rs.15,000/- to the plaintiff and then take steps to get possession of the property. This has happened in 1984. It was the plaintiff who instituted the suit in 1987 for specific performance of the contract. The defendant did not move his little finger either to deposit the amount or to get possession of the property. So the conduct of the defendant itself will make it clear that he had not considered time as the essence of the contract. As stated by me earlier even the title of the plaintiff is only a title without possession and when he attempted to get recovery of possession of the property by instituting a suit as O.S.126/89 which was instituted in the year 1984 (and got transferred) and it has been dismissed. Even in the suit for recovery of possession it does not seem that he had deposited the amount. Therefore from the conduct of the parties it has to be held that the time has not been considered to be the essence of the contract. As stated by me earlier when the parties do not treat it as the essence then the presumption need not be applied and therefore I agree with the trial court with respect to the decree for specific performance. It has also to be remembered it is a part and parcel of a larger portion of the property which belonged to the plaintiff that had been given as security for the amount and it is only correct and in interest of justice that it is given back to the plaintiff as per the intention of the parties. But it has to be remembered that the transaction has started as early as in 1982 and we are in the year 2010. The land value has escalated to sky height and there must be some relief for the person who had given the amount as well. Therefore considering those broad principles I feel, over and above Rs.15,000/- which has to be paid under the agreement the plaintiff has to be directed to pay Rs.20,000/- more to the defendant to get the document executed.