ABDULSHUKKOOR Vs. V.RAMACHANDRAN NAIR

JUDGEMENT

(1.) This appeal has been filed by the defendant against the judgment dtd. 28/10/2002 in O.S.No.399/1995 on the file of the Subordinate Judges' Court, Kollam. The respondent herein is the plaintiff in the suit. The parties and the documents will be referred to as described in the plaint.

(2.) Property having an extent of 4.760 cents comprised in Survey No. 8507 A, B and C of Andamukkam cherry, Kollam Village along with the building therein consisting of shop rooms belongs to the defendant as per partition deed No.1625/1977 of Sub Registry Office, Kollam. Out of the shop rooms in the building, the plaint schedule room was taken on lease by the plaintiff. While so, the defendant executed Ext.A1 agreeing to sell the plaint schedule shop room bearing QMC No.7070/XVII and property comprising one cent in which the room is situated for a total consideration of Rs.2,55,000.00. As advance sale consideration, an amount of Rs.50,000.00 was paid by the plaintiff on the date of Ext.A1, that is, on 29/11/1993. As per the terms of Ext.A1, the defendant agreed to execute the sale deed on or before 31/03/1994. It was agreed that a clear marketable title would be conveyed after satisfying the plaintiff regarding the actual extent, title and that the property was free from all encumbrances. The plaintiff was always willing and ready to perform his part of the agreement. However, the defendant failed to perform his part of the agreement. Hence the plaintiff on 26/03/1994 expressing his readiness and willingness to take the sale of the property on payment of the balance sale consideration, sent Ext.A2 lawyer notice dtd. 26/03/1994 to the defendant, which was accepted by the latter on 02/04/1994. The defendant coming to know of the issuance of the notice, approached the plaintiff and requested the latter to extend the period of the agreement till 30/04/1994 on the ground that he was unable to comply with the terms of the agreement before its expiry for reasons beyond his control. He also undertook that he would positively execute the sale deed on or before 30/04/1994. The defendant also made the necessary endorsement in his own handwriting on the reverse side of Ext.A1 agreement. Though the period of the agreement was extended, the defendant never took any steps to execute the sale deed within the extended period also. Hence, Ext.A5 lawyer notice dtd. 29/04/1994 was issued to the defendant calling upon him to perform his part of the agreement. The defendant accepted the notice on 11/05/1994. However, he never responded to the same or performed his part of the agreement. Hence the suit for a decree of specific performance or in the alternative return of the advance amount with interest and costs from the defendant and his assets.

(3.) The defendant denied the execution of Ext.A1 agreement. According to him, as per settlement deed No.1251/1995 dtd. 28/03/1995, he settled the property in favour of his wife and so he is no longer the owner of the property. The plaintiff, the tenant of the plaint schedule room, defaulted the payment of rent from 01/04/1994 onwards. The defendant had never executed Ext.A1 agreement in favour of the plaintiff. On the other hand, the defendant had borrowed an amount of Rs.50,000.00 from the plaintiff and at the time of the receipt of the amount, the defendant had handed over some signed blank papers to the plaintiff. The said papers had thereafter been fabricated into an agreement for sale. The allegation that the defendant had requested for extension of the period of the agreement is false. The defendant had several money transactions with the plaintiff and on all these occasions, the defendant had received money by entrusting signed blank papers to the plaintiff. Most of the said transactions have been settled by the defendant but even thereafter the plaintiff had not returned the blank signed cheques and papers that were handed over to the latter at the time of borrowal. The plaintiff has no cause of action and so he is not entitled to the reliefs prayed for.