B.WELLINGDON Vs. D.SHYAMA PRASAD

JUDGEMENT

(1.) Questions presently arise for consideration in this appeal are:

(2.) The defendant had entered into Ext.A1 agreement for sale on 03.09.1993 with the plaintiff in respect of 68 cents of landed property belonged to the defendant in Sy.No.485-A, 486 and 487/1 of the Mundakkal Village, for a consideration of 8,500/- per cent. At the time of Ext.A1 agreement, the defendant had received an amount of 1,50,000/- from the plaintiff as advance. The properties covered by Ext.A1 are scheduled as two items, 'A' schedule consists of 10 cents of property in Sy.No.485-A and 34 cents in Sy.No.486, and 'B' schedule consists of 24 cents of property in Sy.No.487/1 of the Mundakkal Village, Kollam District. There were two civil suits in respect of the said properties as O.S.No.36/88 and O.S.No.90/91 before the court below. The defendant herein was the defendant in those suits also. Those suits were decided in favour of the defendant vide judgment dated 13.03.1992. By challenging the said judgment and decree, the plaintiffs in those suits had preferred A.S.Nos.1/93, 2/93 and 3/93 before the District Court, Kollam. Ext.A1 was executed during the pendency of those appeals.

(3.) As per Ext.A1, the defendant had agreed to execute the sale deed in respect of the scheduled properties within three months of the judgments in the said Appeal Suits. All those appeals were dismissed vide judgment dated 25.07.1997. According to the plaintiff, the defendant had deliberately suppressed the dismissal of those appeals, with a view to avoiding the execution of the sale deed in respect of the properties in favour of the plaintiff. The defendant deliberately kept mum with regard to the favourable decision obtained by her in those appeals. It was only during the first week of November, 1998, that the plaintiff came to know about the dismissal of those appeals. The plaintiff was always ready and willing to get the sale deed executed by paying the balance consideration. As there was deliberate evasive attempt from the part of the defendant and her husband, the plaintiff caused to issue Ext.A2 lawyer's notice dated 18.11.1997 to the defendant thereby demanding the execution of the sale deed. Instead of replying to the plaintiff's lawyer, the defendant directly sent Ext.A3 letter to the plaintiff expressing her unwillingness to execute the sale deed in respect of 44 cents of property, and by offering the execution of the sale deed in respect of 24 cents of property, that too reluctantly. In the alternative, the defendant had expressed her willingness to return the advance amount with interest. Within no time, the plaintiff filed O.S.No.58/98 before the Subordinate Judge's Court, Kollam seeking performance of the contract.