SASEENDRAN NAIR Vs. VISWANATHAN NAIR

JUDGEMENT

(1.) The defendant in a suit for specific performance is the appellant. This Court admitted the Regular Second Appeal on 28/11/2003 issuing notice on the following substantial question of law:

(2.) The respondent/plaintiff filed the suit for the specific performance of Ext.A1 Agreement for sale dtd. 4/2/1995 by which the defendant agreed to sell the plaint schedule property having 12 cents and the residential building therein to the plaintiff for a consideration of Rs.80,000.00. The amount of advance sale consideration received by the defendant as per Ext.A1 is Rs.63,000.00 and the period for execution of the sale deed was four months. According to the plaintiff though he demanded execution of the sale deed several times, the defendants purposefully evaded the request; that plaintiff caused to send Ext.A2 Lawyer Notice to the defendant demanding to execute the Sale Deed; that the same was received by the defendant as per Ext.A3 Acknowledgment Card; that the defendants did not send any reply to Ext.A2; and that the plaintiff was present at the Document Writer's office near Sub Registrar Office Vellanadu on the day mentioned in Ext.A2 i.e;5/6/1995, but the defendant did not turn up; that the plaintiff is always ready and willing to perform his part of the Agreement and the defendant is wilfully refusing to execute the Sale Deed in favour of the plaintiff after receiving the balance consideration.

(3.) The defendants opposed the suit prayers by filing Written Statement contending, inter alia, that the defendants borrowed Rs.28,000.00 from the plaintiff four years back agreeing to repay with interest at the rate of 60%; that after one year the defendant paid Rs.40,000.00 to the plaintiff; that according to the plaintiff there was a still a balance of Rs.63,000.00 due from the defendant; that the plaintiff demanded acknowledgment of the amount due to him and on his demand the defendant was forced to execute Ext.A1 Agreement for sale though both parties were not having any intention to treat it as an agreement for sale; that the Panchayat Member was a Mediator and witness to the agreement; that the defendant never agreed to sell the plaint schedule property for Rs.80,000.00 that the defendant never received Rs.63,000.00 from the plaintiff; that the property will fetch more than Rs.3.00 lakhs; that the defendant is residing in the building in the property with family and that the defendant is willing to pay Rs.63,000.00 with interest.