PURUSHOTHAMAN Vs. THULASI

JUDGEMENT

(1.) The appellant is the plaintiff. He sued for specific performance of an agreement to sell land. The agreement was on 8-10-1985. The price was Rs. 19,000/-. An advance of Rs.5,000/- was paid. The defendant was to execute the sale deed on or before 7-1-1986 after receiving the balance consideration. The plaintiff was ready and willing to perform his part of the contract and to pay the balance consideration of Rs. 14,000/-. The defendant did not perform the contract. So, the plaintiff filed the suit on 8-1-1986. The plaintiff deposited the balance consideration in court on 17-1-1986. He claimed Rs.2,000/- as damages for the delay in performance. During the trial he claimed that he was entitled to mesne profits from the property from the date of deposit of the balance consideration in addition to specific performance.

(2.) The defendant admitted the agreement. He admitted the receipt of Rs.5,000/-. He denied it was advance. He pleaded that it was earnest money. He was all along ready and willing to execute the sale deed within the stipulated time but the plaintiff was not ready and willing. The plaintiff had no funds. So the plaintiff could not tender the balance. The plaintiff was not entitled to specific performance. The plaintiff was not entitled to realise any amount from the defendant by way of damages. The plaintiff was not entitled to claim any mesne profits. The defendant continues to be the owner of the property. The suit was to be dismissed.

(3.) By judgment and decree dt.8-12-1986 the Trial Court decreed the suit. It directed the defendant to execute the sale deed. It negatived the plaintiff's claim for damages and mesne profits. The defendant appealed. He filed A.S.40 of 1987. In that appeal the plaintiff got the plaint amended by adding a prayer claiming recovery of the advance in case specific performance was disallowed. He claimed mesne profits at Rs.1500/- per annum from the date of deposit of Rs. 14,000/-. At the hearing of the appeal the defendant sought an opportunity to file an additional written statement. Granting this opportunity the lower appellate court set aside the judgment and decree of the Trial Court and remanded the suit to the Trial Court by its judgment dt. 13-6-1990. After remand, the Trial Court found that the plaintiff was always ready and willing to perform his part of the contract. It held that the defendant was bound to specifically perform the agreement. That court held that since the plaintiff was not able to get possession of the property inspite of the deposit of the balance sale consideration because of the default of the defendant in performing the contract, he was entitled to mesne at the rate of Rs. 1500/- per annum. The claim for damages of Rs.2,000/- was disallowed. The suit was thus decreed. The defendant appealed. The appellate court held that it was the defendant who was not ready and willing to perform his part of the contract. It held that the plaintiff had done all that he could pursuant to the contract. It therefore confirmed the decree for specific performance in plaintiff's favour. Regarding mesne profits, that court held that since the contract for sale does not itself create any interest in the property, the plaintiff was not entitled to mesne profits. The court referred to the definition of mesne profits. The decree for profits granted by the Trial Court was vacated. The plaintiff has appealed. The defendant has not appealed. The decree for specific performance has become final. The defendant died. His legal representatives are the respondents in the Second Appeal.