ABDUL HAMEED Vs. K A MOHAMMED NIZZAR

JUDGEMENT

(1.) A.S. No. 414 of 1996 is filed against the judgment and decree in O.S. No. 801 of 1993 of the Principal Sub Court, Kottayam. A.S. No.723 of 1996 is filed against the judgment and decree in O.S. No.253 of 1994 of the same Court. Both O.S. Nos. 801 of 1993 and 253 of 1994 were heard together and a common judgment was pronounced. A.S.No.414 of 1996 is filed by the defendants in O.S. No. 801 of 1993 while A.S. No. 723 of 1996 is filed by the plaintiff in O.S.No.253 of 1994. First, we shall deal with the facts in A.S. No.414 of 1996.

(2.) In O.S. No.801 of 1993, the plaintiff is K.A. Mohammed Nizzar. Defendants are Abdul Hameed and Fathima Kunju. The plaintiff in the suit is the sister's son of the first defendant. The second defendant is the wife of the first defendant. The suit was filed by the plaintiff for specific performance of an agreement, which was produced as Ext.B1 of the same date. According to the plaintiff in O.S. No.801 of 1993, the plaintiff entered into an agreement with the defendants for the purchase of the plaint schedule property for Rs.4.5 lakhs. The agreement was reduced into writing. On the date of the agreement, the plaintiff paid to the defendants an amount of Rs.2 lakhs in advance. The defendants undertook to execute the sale deed and put the plaintiff in possession of the property on or before 30.6.1993 after clearing all encumbrances.

(3.) On 18.6.1993 the plaintiff paid to the defendants Rs.30,000/- and got the period of agreement extended to 5.8.1993. On 23.7.1993, the plaintiff paid to the defendants Rs.70,000/-. the payments and the extension of period of agreement have been endorsed on the agreement. A portion of the amount received by the defendants towards sale consideration was utilised by them to discharge the liabilities in respect of the property. The release deed obtained from the creditor Bank and other documents were handed over to the plaintiff by the defendants. The plaintiff informed the defendants about his readiness and willingness to pay the balance sale consideration so that the transaction might be completed. In fact, a draft sale deed was prepared. Meanwhile, the first defendant met with an accident and was admitted as an inpatient in a hospital. The plaintiff was prepared to take the first defendant to the office of the Sub Registrar. But the defendants evaded execution of the sale deed. On 5.8.1993, the last day for completing the transaction, the plaintiff went to the office of the Sub Registrar, but the defendants did not turn up. On 7.8.1993, the plaintiff caused a lawyer's notice to be issued to the defendants requesting to come to the office of the Sub Registrar on 18.8.1993. But they failed to comply with the request. Hence, the suit was filed. The Court below found that the plaintiff is not entitled to the decree for specific performance. But the plaintiff was allowed to recover from the defendants the amount of Rs.3 lakhs paid by him with interest at 18% per annum from the date of payment.