VIMALA SNEHAM Vs. BABU JOSEPH

JUDGEMENT

(1.) The defendants 1 and 2 in OS. No.194 of 2007 on the file of II Additional Sub Judge, Kozhikode are the appellants. (For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court).

(2.) The plaintiff filed the above suit for specific performance. Exhibit A1 is the sale agreement entered into between the plaintiff and the defendants on 15/1/2007, whereby the defendants agreed to sell the schedule property consisting of 11.77 cents, for a total consideration of Rs.10.75 Lakhs. On the date of agreement itself, a sum of Rs.2,00,000.00 was paid as advance. As per the terms of Exhibit A1, a further sum of Rs.3,00,000.00 was to be paid by the plaintiff to the defendants within a period of one month and the entire balance amount is to be paid and the sale deed also is to be executed within 3 months. Accordingly, the plaintiff paid Rs.2,75,000.00 on 29/1/2007, Rs.25,000.00 on 14/2/2007 and another Rs.75,000.00 on 27/3/2007. The defendants admitted receipt of a total sum of Rs.5,75,000.00 from the plaintiff by 27/3/2007. At the time of execution of Exhibit A1, the property was mortgaged to a bank. As per the terms of the agreement, the defendants had to redeem the mortgage also before the registration of sale deed. According to the plaintiff, though he was always ready and willing to perform his part of the contract, due to the default of the defendants, the sale deed could not be executed. On the other hand, according to the defendants, the breach was committed by the plaintiff. It was in the above context, the plaintiff filed this suit for specific performance, on 29/5/2007.

(3.) The trial court framed seven issues. The evidence in the case consists of the oral testimonies of PW1, DW1 and Exhibits A1 to A27 and B1 to B8 series. After evaluating the evidence on record the trial court decreed the suit and directed the defendants to execute a sale deed in performance of Exhibit A1. Aggrieved by the above judgment and decree of the trial court, the defendants preferred this appeal.