KOCHAPPI Vs. PAREED

JUDGEMENT

(1.) The appellants are the defendants in O. S.15/1997 on the file of the Principal Sub-Court, Parayur. The suit was filed for specific performance of an agreement for sale as evidenced by Ext. A - 1, dated 22nd August 1995. The Trial Court granted a decree for specific performance and directed the defendants to execute the assignment deed in favour of the plaintiff after receiving the balance consideration within two months from the date of decree.

(2.) The case of the plaintiff is that the defendant agreed to sell the plaint schedule property having an extent of 22 cents for a consideration of Rs. 11,500 percent. An amount of Rs. 25,000 was paid as advance. The period of the agreement was fixed as three months. According to the plaintiff, he was always ready and willing to perform his part of the agreement and it was the 1st defendant who delayed the execution of the document on some pretext or other. It is the further case of the plaintiff that the 1st defendant has not discharged any of his obligations under the agreement. The plaintiff caused to send a lawyer notice on 10th December 1996 and the suit was filed on 10th January 1997. The plaintiff has also prayed for return of Rs. 25,000 with 18 per cent interest in case it is found that he is not entitled to get specific performance of the agreement.

(3.) The first defendant died pending the suit and his legal representatives have been impleaded as additional defendants 2 to 8. In the written statement, the defendants admitted the execution of the agreement and receipt of Rs. 25,000. But their contention is that it is received not as advance but as earnest money. It was contended that the plaintiff was never ready and willing to perform his part of the agreement and he never made any attempt to purchase the properly till 10th December 1996 when he sent the notice and before that he never requested for executing the document. It is the further case of the defendants that the first defendant had on several occasions approached the plaintiff for the balance amount and for executing the document. The amount was urgently needed for conducting the marriage of the first defendant's daughter. Therefore the time was the essence of the contract. It is also stated that the property was got measured in October, 1995 itself by the Village Officer and since the plaintiff did not intimate about the date of execution of the document, no encumbrance certificate was obtained. The defendants had replied to the notice sent by the plaintiff showing the correct facts. In para 8 of the written statement the first defendant also contended that till April, 1995 there was no proper pathway to the plaint schedule property and it was only thereafter that a new road having 14 feet width was formed on the side of the plaint schedule property. It was formed after the owners of the land surrendered portions of their land free of cost. After the formation of the road the market value of the property increased manifold and it is at that time that the plaintiff thought of enforcing the agreement. It is the case of the defendant that since the plaintiff was guilty of undue delay in seeking execution of the sale deed he is not entitled to get a decree for specific performance.