FAIZAL EROTH Vs. VENKALATH RAVEENDRAN

JUDGEMENT

(1.) The plaintiffs are in appeal.

(2.) The appellants approached the court below for a decree for specific performance of an agreement to sell the suit properties. By the impugned decree, the court below refused the relief of specific performance to the appellants and only a decree for return of advance amount with interest was granted. In this appeal, the appellants are challenging the correctness of the impugned judgment and decree. Now the plaint allegations in brief: Plaint mentioned property belonging to the respondents was agreed to be sold to the appellants by virtue of an agreement dated 14.11.2005 which was prepared in counterparts. The sale consideration was fixed at the rate of Rs. 5 lakhs per cent out of which, Rs. 50 lakhs was paid on the date of agreement itself and Rs. 25 lakhs was paid on 2.2.2006, as agreed. Thereafter, the respondents demanded another sum of '4.5 lakhs urgently and the said amount was also paid by the appellants to the respondents through one Ramesh on 28.7.2006. Though the said payment was assured to be acknowledged, the respondents failed to do so. Eight months' time was prescribed for performance of the agreement. It was agreed that, a sum of Rs. 15 lakhs would be deducted as compensation from the total sale consideration for evicting one Madhavan who was holding a portion of the plaint schedule property under a Karaima right. In order to compute the balance sale consideration, the respondents had to measure out the property and satisfy the appellants, the actual extent of land available for sale. The notary attested copies of title deeds, previous documents, possession certificates and other allied documents, including non-encumbrance certificate for 30 years were to be handed over to the appellants by the respondents. The respondents were aware of the aforesaid facts and were bound to satisfy the appellants that the respondents were having absolute title and possession of the plaint schedule property and then only, the appellants were required to prepare the sale deed. The respondents were also liable to effect paper publication regarding the documents of title lost and to furnish affidavit to the effect that the property has not been encumbered or alienated. But they failed to abide by the terms of the contract. However, the appellants were always ready and willing to perform their part and demanded performance repeatedly. The respondents did not execute the agreement under the lame excuse of inability of procuring other houses for shifting their residence and extended time on such excuses. Expending more than Rs. 15 lakhs, the appellants themselves had purchased the Karaima right over a portion of the plaint item from the aforesaid Madhavan under the belief that the respondents would perform their part. There was a 'Daivasankalpa' in the property which had to be removed at the instance of the respondents. That also was not done by them. In order to cover up their laches, the respondents caused to issue a notice dated 26.8.2006 on the appellants making false averments and rescinding the contract for which the respondents had no right. Appellants in turn caused to send a reply notice asking for specific performance. The respondents were not ready to execute the sale deed as demanded and hence, the suit.

(3.) The first respondent resisted the suit, contending as follows: