MANI Vs. KRISHNAN NAYAR

JUDGEMENT

(1.) The plaintiffs are the appellants. The plaint A schedule property belonged to them. While they were about to lease out the property, the defendant agreed to purchase it for Rs. 867 As. 8 Pies 0. The defendant was then not in a position to pay the consideration for the sale. The plaintiffs were not willing to part with the property without getting at least a portion of the consideration agreed to and sufficient security for the balance. But since the agricultural operations in the property had to be started then, the parties entered into an agreement on 7th Medom 1117 regarding the conditions under which the sale was to be executed. According to this, the defendant was to pay the plaintiff Rs. 500/- out of the sale consideration on or before 20th Edavam 1117 and execute a mortgage for the balance charging plaint A schedule property as well as the properties described in the B schedule to the plaint. The amount covered by the mortgage was to be paid with 6 per cent interest within one year. If the defendant defaulted in taking the sale deed, he was to pay the plaintiffs Rs. 75/- as damages. If on the other hand the transaction fell through by the default of the plaintiffs, they were to give the defendant Rs. 75/-. The plaintiffs had agreed to hand over to the defendant at the time of sale the receipts for the payment of renewal fees and Michavaram to the Jenmi. The defendant had also put the plaintiffs in possession, the title deeds of B schedule properties. The defendant did not pay Rs. 500/- on 20th Edavom 1117. He had also not done anything for carrying out the terms of the contract. Though the defendant had been reminded of the agreement before 20th Edavam 1117, he had informed the plaintiffs that he was not able to secure the amount and that, therefore, he would surrender possession of the property with profits and damages after harvesting the crops raised by him. The breach of the contract was therefore on account of the defendant's default. The parties had intended that time has to be of the essence of the contract. There was no intention to extend the period mentioned in the agreement. The plaintiffs had also not extended the period any further. In order to misappropriate the profits arising from the property, the defendant was still retaining possession of the property without surrendering the same. Because of the rise in the price of paddy, the defendant, with the object of securing the property, had sent a notice on 6th Mithunam 1119 through an Advocate. A reply showing the true state of affairs was given to the defendant. The mesne profits from the plaint A schedule property would be 112 paras of paddy. The plaintiffs are to get the same at this rate, from the 7th Medom 1117. The defendant has also to pay interest on the same as also Rs. 75/- agreed to be paid as compensation for the breach of the contract. For the compensation of Rs. 75/- the plaintiffs were entitled to a charge on B schedule properties as provided for in the agreement. The suit was therefore for the recovery of possession of the plaint A schedule property with past and future mesne profits and for damages in pursuance of the agreement

(2.) The defendant contended that the suit was not maintainable, that the terms of the agreement were not correctly set out in the plaint, that he was always ready and willing to perform his part of the contract, whereas the plaintiffs were not willing to receive the amount and execute the sale deed, that they had not given the receipt for the payment of the Jenmi's dues by way of Michavaram and renewal fees, that they were not to get any damages or any charge on B schedule properties and that they were not entitled to get any amount more than the sale consideration agreed to. The defendant had also prayed for a direction to the plaintiffs to execute the sale deed on receipt of the sale consideration.

(3.) The lower court held that time was not of the essence of the contract, that the sale deed was not executed because of the default of the plaintiffs, that the suit as framed was not maintainable, that the defendant was entitled to a decree for specific performance of the contract and that the plaintiffs were to execute the sale deed in respect of plaint A schedule property as the defendant had deposited in Court the whole purchase money. The suit was therefore dismissed and the counter claim of the defendant decreed. The plaintiffs were ordered to execute a sale deed in respect of the plaint A schedule property in favour of the defendant within one month. They were also directed to deliver to the defendant all the title deeds relating to the A schedule property and also the title deeds relating to the B schedule properties.