BABY @ VARGHESE Vs. GOPAKUMAR

JUDGEMENT

(1.) Defendant is the appellant. Suit was for specific performance of an agreement of sale, and injunction. Decree passed in favour of respondent/plaintiff by the learned Sub Judge, Thrissur, is challenged in the appeal. Ext. A-3 agreement of sale over the plaint property having an extent of 1 acre 26 cents belonging to the defendant was sought to be enforced in the suit. A decree of injunction was also applied to restrain the defendant from alienating the property to any person other than the plaintiff. Alternatively reliefs for damages and compensation were applied for. Ext. A-3 agreement fixing percentage value at Rs. 650 for the property and time-limit for six months for completion of sale on payment of Rs. 10,000 as advance on the sale price, was admitted by defendant. Plaintiff laid the suit before completion of the period fixed for sale alleging breach of contract by the defendant. Later, he got the plaint amended alleging that after institution of suit defendant collected a further sum of Rs. 60,000 on the sale price and period for completion of sale was extended on mutual consent by parties. The defendant resisted the suit contending that the contract failed on account of the default of plaintiff in fulfilling his obligations under Ext. A-3 agreement. He also repudiated the claim canvassed in the amended plaint over the receipt of additional sum towards sale price, filing an additional written statement. Accepting the case of plaintiff that the contract of sale tailed on the fault of defendant and that apart from the advance paid under Ext. A-1 agreement the defendant had collected Rs. 60,000 towards the sale price after institution of suit, the court below granted decree in favour of the plaintiff directing defendant to execute the sale deed receiving the balance consideration of Rs. 11,900. In default of defendant to execute the sale deed plaintiff was granted liberty to move for registration of the sale deed through court depositing the balance sale consideration. A decree of permanent prohibitory injunction was also granted in favour of plaintiff restraining the defendant from alienating the property to any other person. That decree is challenged in the appeal.

(2.) I heard the counsel on both sides.

(3.) Learned counsel for the appellant contended that the suit filed before expiry of the term fixed for completion of sale under Ext. A-1 agreement was premature. Imputing breach of contract by defendant, before expiry of the period stipulated for completing the sale, suit was laid for enforcing the agreement. When that be so, plaintiff is not entitled to get specific performance of that agreement, but, at best only a claim for damages on strict proof thereof, according to counsel. Appellant did not appear and give evidence in support of the suit claim. His power of attorney, P.W. 1, who had no direct knowledge of the transaction involved, was examined in the case. The evidence of that witness no way assisted the plaintiff to get a decree of specific performance, according to counsel. Ext. A-2 was produced by plaintiff to substantiate subsequent payment of Rs. 60,000 towards purchase price after institution of the suit. That document was not proved despite denial of its execution and receipt of money stated thereunder by defendant, is the further submission of counsel. P.W. 3 examined in the case was the father of P.W. 1, power of attorney of plaintiff. Both P.W. 1 and P.W. 3 had no direct knowledge of the transaction covered under Ext. A-3 agreement. The evidence let in through P.W. 2 and 4, other two witnesses examined by plaintiff, former a sales officer in a co-operative bank and latter a real estate agent no way assisted the plaintiff in substantiating his case for a decree of specific performance, according to counsel. Without appreciating the facts and circumstances involved and evidence let in the case forming erroneous conclusions the court below has granted a decree in favour of plaintiff, which is totally unjust and unsustainable and liable to be reversed, submits the counsel. On the other hand learned counsel for the plaintiff contended that there is no merit in the challenges raised to assail the decree, which, according to counsel is fully supported by the materials tendered. Suit cannot be considered to be premature where the evidence clearly established that there was default by defendant and also refusal on his part to perform the contract, according to counsel. Apprehension of plaintiff that defendant discarding Ext. A-3 agreement intended to alienate the property has been shown to be genuine. Institution of suit before expiry of the period fixed under the agreement for completion of sale cannot be raised to challenge the suit as premature, is the submission of counsel relying on Virgo Industries (Eng.) Private Ltd. v. Venturetech Solutions Private Ltd., 2013 1 SCC 625. Plaintiff need not wait for expiry of due date for filing suit for specific performance in the event of anticipatory breach of agreement by overt act of defendant, is the submission of counsel. The evidence tendered in the case had clearly established that there was culpable default by defendant in fulfilling the terms agreed upon under Ext. A-3 agreement for completion of sale and also that he made attempts to alienate the plaint property to others, submits the counsel. Ext. A-3 agreement stipulated that defendant had to discharge the encumbrance over the property, but, even after the expiry of period fixed for sale the property continued to be encumbered on failure of defendant to discharge liabilities has also been proved in the case, is the further submission of counsel. The decree granted in favour of the plaintiff is finally supported by materials tendered, and, the challenge raised by defendant is devoid of any merit, submits the counsel urging for dismissal of the appeal.