NAMBARUKANDI MARAKKAR Vs. NALLITHODI THAVALAPARAMBIL APPU

JUDGEMENT

(1.) 2nd defendant in O.S. No. 9 of 1982 on the file of the Sub Court, Kozhikode is the appellant. The suit was for specific performance of an agreement of sale.

(2.) The plaint schedule property is a shop building. As per an agreement Ext. A1 dated 27-10-1981, between the plaintiff and 1st defendant, 1st defendant agreed to sell the property to the plaintiff for a consideration of Rs. 24,000/-. A sum of Rs. 7,000/- was paid as advance on the date of agreement. It was also agreed that the sale deed would be executed and registered within six months. Plaintiff was already in possession of the shop room in the ground floor as a lessee. After the agreement, the 1st defendant made negotiations with the 2nd defendant for sale of the plaint schedule property. When the plaintiff came to know about this, he filed O.S. No. 601 of 1981 before the Munsiff's Court, Kozhikode-II for an injunction, restraining the 1st defendant from selling the property to any other person. A temporary order of injunction was passed by the Munsiff's Court restraining alienation of the property or transfer of possession to others. Ist defendant evaded service of the injunction order and the Court ordered for service of injunction order by affixture. Thereafter, plaintiff came to know that the 1st defendant executed a sale deed transferring the plaint schedule property to the 2nd defendant after the injunction order was passed by the Munsiff's Court. The 2nd defendant is a neighbour and had knowledge about the agreement between the plaintiff and 1st defendant. When the 2nd defendant approached the plaintiff and made enquiries about the plaintiff's right in the plaint schedule property during the first week of December, 1981, plaintiff told the 2nd defendant about the agreement between plaintiff and 1st defendant and also the injunction order passed by the Munsiff's Court. The sale deed is the outcome of a collusion between defendants. Plaintiff was and is still ready to perform his part of the contract by paying the balance of consideration and get the sale deed executed. In the plaint in O.S. No. 601 of 1981 also, plaintiff expressed his readiness. After the filing of O.S. No. 601 of 1981, plaintiff received a registered notice caused to be sent by the 1st defendant which contained false allegations and the plaintiff sent a suitable reply to this. The allegations in the notice that the advance was not actually paid and the plaintiff committed breach of contract are absolutely incorrect. The period fixed in the agreement was to expire only on 27-4-1982 and the 1st defendant committed breach of contract by executing the sale deed in favour of 2nd defendant before the expiry of the period. The allegation that the shop room in the ground floor was not put in possession of the plaintiff is not true. 2nd defendant, being a transferee subsequent to the agreement between the plaintiff and 1st defendant was not entitled to any protection and the plaintiff was entitled to a decree for specific performance or payment of balance of consideration of Rupees 17,000/-. This is in short the plaintiff's case.

(3.) Defendants 1 and 2 filed separate written statements. 1st defendant admitted the execution of Ext. A1 agreement, but contended that the plaintiff had no funds to pay the advance and it was believing the representation of one Kurungottungal Apputty, a friend of the plaintiff and Nambidiveetil Kunhan Nair, plaintiff's litigation agent, that Rs. 7,000/- would be given in the evening, that he signed the agreement, but the plaintiff did not pay the advance amount and he did not give the key of the room to plaintiff. Plaintiff was intimated about his breach of contract and the cancellation of agreement by a notice dated 1-12-1981, but he evaded the service of notice till 7-12-1981 and trespassed into one room. 1st defendant complained to the police about the trespass. He sold the plaint schedule property to 2nd defendant on 14-12-81 for valuable consideration. The 1st defendant came to know of the institution of ' the suit in O.S. No. 601 of 1981 only on 17-121981, when the summons was served on him and no notice of injunction order was received by him. The allegation of service by affixture on his dwelling was also denied. It was also averred in the written statement that the plaintiff's averment that he was ready to perform the contract has no value at all as he was prepared to execute the sale deed only on payment of Rs. 17,000/-. Since plaintiff had not paid the advance amount of Rs. 7,000/-, he was not entitled to get the sale deed executed on payment of Rs.17,000/-. The agreement is not valid. The allegation regarding collusion between the defendants was also denied.