K.M. VARGHESE Vs. EAPEN K. VARGHESE

JUDGEMENT

(1.) THE plaintiff, who lost a suit for specific performance of a contract for sale, is the appellant. Exhibit A1 agreement was entered into on 4th July, 1996, under which the defendant agreed to convey an item of property for Rs. 6,75,000/ - and received a total amount of Rs. 2,00,000/ - as advance; Rs. 50,000/ - in cash and Rs. 1,50,000/ - by a cheque drawn by the vendee on his banker payable on 5.7.1996. It is the admitted case that the vendee issued a stop memo and prevented release of that amount of Rs. 1,50,000/ -, which was part of the advance. On 15.11.1996, the suit was filed on the assertion that, before that the vendee had offered to take the sale deed by paying the entire consideration. The Court below on an appreciation of the relevant facts and evidence and drawing necessary inferences held, on material evidence, that there was nothing to show as to the honouring of the cheque for Rs. 1,50,000/ - which was part of the advance and that there was any attempt thereafter to pay off that amount. The oral evidence contains indication that there was some talk between the parties. But, we are clear in our mind that on the totality of the facts and circumstances, the court below rightly exercised discretion in refusing specific performance and ordering only return of the advance with interest. We say so because a reading of Exhibit A1 agreement as a whole gives the impression that payment of Rs. 2,00,000/ - as advance, i.e., including the cheque for Rs. 1,50,000/ -, is of the essence of the contract for sale and we will be obliterating that contract for sale if we were to assume that the contract ought to be executed for the simple reason that time limit for its performance is not mentioned in the contract and normally time is not treated to be of the essence of a contract for sale of immovable property. In the aforesaid views on facts, we, on the basis of the materials on record and the submissions made by the learned counsel on either side, do not find any ground to interfere with the impugned decree. The appeal fails.