K ALI Vs. M J CHERIAN

JUDGEMENT

(1.) Two suits were instituted independently on the basis of Ext.A1 agreement for sale produced in O.S.No.18/1997 out of which R.S.A.No.1137/2013 arises. For easy reference, the facts in O.S.No.18/1997 shall be referred to.

(2.) The 2nd plaintiff entered into an agreement for sale namely, Ext.A1 with the sole defendant in the suit whereby the defendant undertook to assign 2.36 Acres of land for a total consideration of Rs.2,25,000/-. The agreement was dated 05.12.1994 and the transaction was to be completed on or before 31.05.1995. Rs.15,000/- was paid as advance on 05.12.1994 itself. Subsequently, at the instance of the 2nd plaintiff, two sale deeds namely, Exts.A2 and A3 for 6 cents and 54 cents respectively dated 01.03.1995 and 30.03.1995 were executed by the defendant in the suit in favour of two strangers for Rs.1,25,000/- and Rs.85,000/- respectively. A sum of Rs.10,000/- was paid on 30.01.1995 and another sum of Rs.1,000/- was paid on 01.03.1995. On 15.05.1995, the balance extent of 1 Acre and 76 cents was transferred by the defendant to the 1st plaintiff. According to the plaintiffs, Ext.A4 sale deed was executed receiving Rs.9,000/- in cash and a sum of Rs.65,000/- by way of cheque dated 15.05.1995 from the 1st plaintiff. According to the plaintiffs, with the execution of Ext.A4, title of the property passed on to the 1st plaintiff and possession was also given to him. Further case of the 1st plaintiff is that he accepted the request made by the defendant to continue to stay in the house for a few more months after which he agreed to vacate. As he did not do so, suit had to be instituted.

(3.) The defendant resisted the suit. The main contention was that the cheque which was given for Rs.65,000/- on presentation bounced and there was failure of consideration and therefore, sale in respect of Ext.A4 had not taken effect. On the failure of consideration, he had executed Ext.B1 cancellation deed on 10.08.1995 and therefore neither the title nor possession passed on to the 1st plaintiff and he had no right over the plaint schedule property. It was contended specifically that possession was to be handed over only on receipt of the entire sale consideration and as the sale consideration was not paid, possession was also not handed over. It was due to the failure on the part of the 1st plaintiff that the transaction had fallen through which necessitated cancellation deed to be executed retaining the title with the defendant. He therefore contended that the plaintiffs are not entitled to any relief in the suit.