UNNI MADHAVAN NAIR Vs. KAMALAKSHY AND OTHERS

JUDGEMENT

(1.) DEFENDANT is the appellant. He succeeded in the trial court, but lost in appeal. The suit was one for specific performance of an agreement Ext. A1 dated March 20, 1978 to sell the plaint schedule property which belonged to the appellant to one Vasu for a consideration of Rs. 11,815/ -. An advance of Rs. 2,000/ - was paid on the date of the agreement. The balance consideration was to be paid within a period of two and a half months, within which the appellant had to satisfy Vasu about the measurements of the property, and its being unencumbered. Vasu issued notice Ext. A2 on June 2, 1978 calling upon the appellant to furnish him the title deeds of the property, as also the encumbrance certificate, to enable him to get the sale deed prepared and executed. The appellant sent reply Ext. B10 on June 6, 1978 stating that he had always been ready and willing to perform his part of the contract, and that it was Vasu who was the defaulting party, he being not ready to complete the sale. Vasu filed the suit on October 24, 1979 for a decree of specific performance of the agreement. I shall refer to Vasu as the plaintiff in the further discussion, for purpose of convenience. After reciting the terms of the agreement Ext. A1, and about issue of the notice Ext. A2, to which, according to the plaint, there was no reply, the plaint proceeded to state that the defendant - appellant was bound under the agreement Ext. A1 to convey the property and deliver possession of the same to the plaintiff, and that the suit was necessitated by reason of the appellant's default in performing the obligations under Ext. A1. The prayer in the suit was for execution and registration of the deed of sale. It did not contain any alternate prayer, either for damages, or for refund of the advance of Rs. 2,000/ - in case specific performance was refused, apart from the usual residuary prayer to grant such other reliefs as the court may deem fit.

(2.) IN his written statement, the appellant denied any default on his part, stating inter alia that he had sent a reply to Vasu on June 6, 1978. According to him, he had offered the documents to the plaintiff, but the latter was evading receipt of the documents. He also contended that the default being on plaintiff's part, he was not entitled to any decree of specific performance, and the suit should be dismissed.

(3.) THE plea of limitation referred to was that the averment of readiness and willingness required by section 16(c) of the Act was part of the cause of action for the suit; the rectification of that defect by the amendment in question was beyond the period of limitation prescribed for a suit for specific performance, and therefore the suit itself was liable to be dismissed as barred by limitation. It was this plea raised by the defendant that was left open for consideration at the trial of the suit.