M.B.THAMBI Vs. MARTIN PAYUVA

JUDGEMENT

(1.) The plaintiff in OS No. 169 of 1996, on the file of the Sub Court, Ernakulam, is the appellant. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court. )

(2.) The plaintiff filed this suit for specific performance of an agreement for sale, entered into with the defendant on 16/1/1995. As per sale agreement dtd. 16/1/1995 (Exhibit A1), the plaintiff agreed to purchase the plaint schedule property, having an extent of 11.538 cents belonging to the defendant, for a price of Rs.70,000.00 per cent. At the time of executing Exhibit A1 agreement, a sum of Rs.5,00,000.00 was paid as advance. As per the terms of the agreement, before the execution of the sale agreement, the defendant had to convince the extent of the property by measuring the same and also convince the encumbrance free title of the defendant over the property. According to the plaintiff, due to the default of the defendant, the sale deed could not be executed. Since the defendant failed to measure and convince the extent of the property within the agreed period, the plaintiff issued a registered notice to the defendant on 18/11/1995, expressing his willingness to purchase the property. However, the said notice was returned unserved. Thereafter, he had sent a registered lawyer's notice on 28/12/1995 and the same was accepted by the defendant on 1/1/1996. After receiving the said notice, the defendant approached the plaintiff seeking extension of time for performing the contract. At the request of the defendant, the period of the agreement was extended by one month from 15/1/1996 and on that day, a further sum of Rs.2,00,000.00 was also paid to the defendant and the said fact was endorsed on Exhibit A1 itself. The plaintiff was always ready and willing to perform his part of the contract, but still the defendant was not ready to execute the sale deed. It was in the above context that the plaintiff preferred the suit for specific performance with an alternate prayer for return of advance amount of Rs.7,00,000.00 with 12% interest.

(3.) The defendant filed a written statement contending that there was only a loan transaction with the plaintiff. The defendant totally denied the execution of any sale agreement with the plaintiff. According to the defendant, when he was in dire need of money he approached the plaintiff and the plaintiff advanced a sum of Rs.5,00,000..00.00 As directed by the plaintiff, he had executed a document as security. He had also handed over his title deed to the plaintiff at the time of availing the loan. The mutual understanding was that, as and when the loan amount is repaid, the documents will be returned to the defendant. According to the defendant, he never expected that the plaintiff would behave in a different manner and that is why he omitted to send any reply to the notice issued by the plaintiff. According to the defendant, one cent of the plaint schedule property will fetch a sum of Rs.5,00,000.00 and hence, he will never agree to sell such a property for a meager amount of Rs.70000.00 per cent. According to the defendant, he never agreed to sell the plaint schedule property to the plaintiff. He did not send any reply to the lawyer's notice, as he was confident that on repayment of the loan amount, the transaction would be completed. Further, according to him, he had not received Rs.2,00,000.00 from the plaintiff on 15/1/1996 as alleged in the plaint. That amount was written on Exhibit A1 by way of interest accrued on the principal sum of Rs.5,00,000.00. According to the defendant, he is ready to pay the principal amount borrowed with interest to the plaintiff. Therefore, he prayed for dismissing the suit.