ERIKKIL THAVATHA BASHEER Vs. POOPURAMBATH KAITHAL KHADEEJA

JUDGEMENT

(1.) Against the judgment in O. S. No. 106 of 1989 on the file of the Court of the Subordinate Judge, Badagara this appeal is filed by the plaintiff. The appellant as plaintiff filed the suit for specific performance of an agreement to sell. As per the plaint averment, the appellant and respondent executed Ext. A1 agreement dated 16/01/1989 whereby the respondent agreed to sell the plaint schedule property in favour of the appellant at the rate of Rs. 10,250/- per cent. The total extent of the property is 16.75 cents. On the date of agreement, the appellant paid a sum of Rs. 25,000/- as advance. The time stipulated for the payment of the balance sale consideration was six months from the date of agreement and the respondent should execute the sale deed on receipt of the balance consideration. The appellant approached the respondent and her father for getting the sale deed executed and he was always ready and willing to pay the balance sale consideration even before the expiry of the period stipulated in the agreement. But the respondent first took time till the Bakrid was over and again wanted further time stating that the mother of the respondent is seriously ill and the document will be registered after she recovered from her illness. The period specified in the agreement expired on 15/07/1989. On 17/07/1989 the appellant received Ext. A2 notice stating that the time stipulated in the agreement is over and hence she revoked the agreement. The appellant sent a notice to the respondent on 12/08/1989 stating the correct facts and requesting for specific performance.

(2.) The respondent denied the allegations in the plaint and contended that the document could not be executed due to the failure on the part of the appellant to perform his part of the contract. He was never ready and willing to get the document executed. It is admitted that an agreement was executed between the appellant and respondent on 16/01/1989 agreeing to sell the property at the rate of Rs. 10,250/- per cent. It is also admitted that on the date of Ext. A1 agreement, a sum of Rs. 25,000/- was received by the respondent as advance. There was a further stipulation in the document that the appellant has to pay the balance sale consideration after measuring the property and preparing the sale deed at his expense within a period of six months and the document has to be registered at his expense. The appellant has failed to perform his part of the contract within the stipulated period and so the respondent issued Ext. A2 notice to the appellant revoking the contract. It is her further case that after the agreement, the appellant had never approached her for the purpose of getting the document executed. He never approached her to get the title deed for preparing the draft sale deed and measuring the property. The allegation that the respondent and her further Pokku Haji protracted the matter one way or other is utterly false. Time is the essence of the contract and since the time has been expired, she is not bound to execute the sale deed in favour of the appellant. The allegation that the appellant along with Khader, Sekharan and Usuf came to the house of the respondent and her father and demanded for the due execution of the sale deed is not correct. But after receipt of Ext. P2 notice, the appellant along with the above said three persons came to the house of the respondent and requested for the return of the advance money on 30/07/1989 and the respondent and her father agreed to return the same on 01/08/1989. Accordingly, on 01/08/1989, the appellant along with Khader and Usuf again came to their house. One Ibrahim Haji also was present in their house as per the direction of the father of the respondent. The amount was paid by Pokku Haji, father of the respondent to the appellant through Ibrahim Haji. Prior to the payment of the amount, the appellant has handed over the agreement to Ibrahim Haji. When Ibrahim Haji was about to hand over the agreement to Pokku Haji, the father of the respondent, the appellant informed that since he is a merchant and that the amount was not shown in the account, the agreement has to be destroyed. So, it was destroyed by setting fire by Ibrahim Haji in the presence of all who present there. When they insisted for receipt for payment of the amount, the appellant informed that since the amount was not shown in the amount, it would be difficult for him to give the receipt. But Ibrahim Haji and Khader who were present at the time of payment has issued a slip in writing to the father of the defendant stating that the amount was repaid to the appellant. It was only after the filing of the suit, the respondent and her father came to know that the appellant has cheated Ibrahim Haji, the mediators and Pokku Haji by showing a photostat copy of the agreement instead of the original. The father of the respondent is ready to take oath in any Mosque stating that he has repaid the amount to the appellant. Usuf mentioned in the notice sent by the appellant is his business partner for real estate business. Since the appellant has not performed his part of the agreement within the stipulated time, the respondent is entitled to revoke the agreement. She denies that the appellant has been ready and is always ready and willing to perform his part of the agreement. In these circumstances, she prays for a dismissal of the suit with costs.

(3.) The question to be decided in this appeal is whether the appellant is entitled to get a decree for specific performance and whether the respondent returned the advance amount of Rs. 25,000/- as contended in the written statement. There is no dispute with regard to the fact that the appellant and the respondent entered into Ext. A1 agreement dated 16/01/1989 whereby the respondent agreed to sell her property to the appellant at the rate of Rs. 10,250/- per cent and a sum of Rs. 25,000/- was paid as advance to the respondent on the same day. It is the admitted case of both parties that the sale deed is to be executed within six months from the date of Ext. A1 dated 16/01/1989. As per Ext. A1, appellant agreed to pay the balance of sale consideration on the date of registration of the document and he will meet the expenses for registration and measurement of the property. It is submitted by the learned counsel for the appellant that the appellant was ever ready and still ready to perform his part of the agreement but the respondent was never ready to perform her part of the agreement. Even though the appellant approached the respondent for getting the title deed for preparation of the sale deed and measurement of the property, it was not handed over to him, instead the respondent and her father protracted the matter somehow or other.