CHANDRASEKHARA PRABHU Vs. KUNHI MOIDEEN

JUDGEMENT

(1.) Appellants are defendants 2 and 3. First respondent - plaintiff filed the suit for specific performance of Ext. A-1 agreement entered into between him and first defendant. First defendant while admitting the agreement disputed its validity on the ground that it was executed without realising its full implications, Defendants 2 and 3 contended that they were not aware of Ext. A-l agreement and they are bona fide purchasers of the property for valuable consideration. Sub Judge on considering the evidence held that Ext. A-1 is not vitiated by fraud as alleged by the 1st defendant. Decree for specific performance was not granted in favour of the plaintiff on the ground that there was dispute with regard to the balance sale consideration due to the first defendant. Sub Judge held that defendants 2 and 3 are not bona fide purchasers of the property. Disallowance of the claim for specific performance was reversed and plaintiff was granted decree for specific performance by the District Judge in the plaintiff's appeal.

(2.) Contention of the defendants is that the pleadings in the plaint do not disclose plaintiff's readiness and willingness to pay the balance sale consideration and as the plaintiff himself has raised a dispute with regard to Rs. 600/- it is apparent that he was not ready and willing to perform his part of the contract by paying the entire balance sale consideration and so the Trial Court was justified in refusing to grant decree for specific performance. On the other hand contention of the plaintiff is that though he has a case that he had paid Rs. 600/- on 10-1-1977 to 1st defendant towards balance consideration i.e. after the agreement, he is willing to deposit whatever amount is found due as the balance consideration by the Court and in view of the averment is cannot be held that he was not ready and willing to perform his part of the contract.

(3.) As per Ext. A-1 agreement plaintiff had to pay Rs. 7,000/- to the 1st defendant as balance consideration. He has alleged that Rs. 600/- was paid to 1st defendant on 10-1-1977. Ext. A-6 notice was issued by plaintiff calling upon 1st defendant to execute the sale deed in his favour and in that notice payment of Rs.600/- to the 1st defendant was mentioned. In the reply notice first defendant denied receipt of Rs. 600/- as alleged by plaintiff. In view of the denial, plaintiff averred in the plaint the fact of payment of Rs. 600/- and also maintained the stand that he is ready to pay the said amount also if the Court finds that he is liable to pay the same.