KOCHUTHRESSIA Vs. MUHAMMED IQBAL

JUDGEMENT

(1.) The defendant in a suit for specific performance is the appellant. The subject matter of the suit is a shop room belonging to the defendant. The plaintiff is the tenant of the defendant occupying the said shop room. The case set out by the plaintiff in the plaint is that on 14/2/2006, the defendant agreed to sell the plaint schedule shop room to the plaintiff for a consideration of Rs.2,80,000.00 and received a sum of Rs.1,00,000.00 from him by way of advance sale consideration; that the defendant should have executed sale deed in respect of the plaint schedule shop room in favour of the plaintiff in terms of the agreement executed between the parties in this regard within four months; that the period prescribed for execution of the sale deed was extended twice at the instance of the defendant and that despite the fact that the plaintiff was ready and willing to perform his part of the obligations under the agreement all throughout, the defendant refused to execute the sale deed in respect of the plaint schedule shop room even within the extended period, taking an untenable stand that the agreement covers only the shop building and the electric fittings attached to it, and it does not take within its fold the land over which the shop building is constructed. It was alleged by the plaintiff in the plaint that the defendant is obliged to execute the sale deed in terms of the agreement not only in respect of the shop building, but also in respect of the land over which the shop building is constructed and he is, therefore, entitled to a decree for specific performance of the agreement for sale. Alternatively, the plaintiff has prayed for a decree in the plaint for return of the advance sale consideration with interest at the rate of 12% per annum.

(2.) The defendant contested the suit. In the written statement filed by the defendant, she has not disputed the execution of the agreement for sale, or the receipt of the advance sale consideration. The contention of the defendant however was that the agreement for sale was only in respect of the shop building and the electric fittings attached to it as she had no right at the relevant time over the land over which the shop building is constructed; that she was prepared all throughout to transfer the shop building to the plaintiff after receiving the balance sale consideration and that the plaintiff was not willing to get the sale deed in respect of the shop building executed from her taking the stand that the defendant is bound to transfer to the plaintiff, in terms of the agreement, the ownership over the land also and further that he is entitled to adjust against the balance sale consideration a sum of Rs.28,500.00 claimed to have been paid by him to the defendant by way of advance at the time when the shop room was let out to the plaintiff. It was pleaded by the defendant in the written statement that she has not received any amount by way of advance from the plaintiff when the shop room was let out to him and that there was no agreement to adjust any amount against the balance sale consideration. In essence, the contention of the defendant was that the plaintiff was not ready and willing to perform his part of the obligations under the agreement to obtain sale deed in respect of the shop building executed by paying the balance sale consideration mentioned in the agreement.

(3.) The plaintiff gave evidence as PW1 and produced on his side four documents as Exts.A1 to A4 of which, Ext.A1 is the agreement for sale dtd. 14/2/2006, Ext.A2 is the notice caused to be sent by the plaintiff to the defendant on 17/10/2006, Ext.A3 is the reply notice caused to be sent by the defendant to the plaintiff to Ext.A2 notice and Ext.A4 is the bank account pass book of the plaintiff. The defendant gave evidence as DW1 and produced on her side Ext.B1 Will in terms of which she derived title to the shop building.