FREDERICK PAUL MANOHAR Vs. MOHANAN

JUDGEMENT

(1.) Petitioner filed this petition challenging Ext.P5 order dated 06.06.2016 in I.A. No.835 of 2014 in O.S. No.453 of 2011 on the file of the Sub Court, North Paravur, under Article 227 of the Constitution of India.

(2.) It is alleged in the petition that the respondents herein filed Ext.P1 suit as O.S. No.453 of 2011 for return of advance amount of Rs.10,70,800/- which was paid pursuant to an agreement to sell entered into between the parties. The matter was settled in the Adalath and Ext.P2 award was passed incorporating the agreement entered into between the parties as terms of settlement. The case was disposed of on the basis of the agreement entered into between the parties. As per the settlement, the petitioner has agreed to sell his property for an amount fixed between the parties within the time stipulated therein, namely, 23.07.2012 and an amount of Rs.12,55,000/- was paid and also another amount of Rs.5,50,000/- was paid for the purpose of discharging the liability of the petitioner with the bank and he will have to pay the amount to the Bank, get back the documents and hand over the same to the respondents. It is also agreed that on payment of another sum of Rs.8,45,000/- on or before 23.07.2013, the petitioner has to execute the document. It is further mentioned in the agreement that if the petitioner committed default in executing the document within the time, the respondents are at liberty to move the court for getting the document executed. Since the petitioner did not execute the document as directed, the respondents filed Ext.P3 petition under Section 28 (3) of the Specific Relief Act (for short, "the Act") depositing the balance amount before the court and directed the petitioner to execute the document.

(3.) Petitioner filed a detailed counter as Ext.P4 stating that time is the essence of the contract and originally it was a money claim which was subsequently converted into a specific performance decree and as such since the respondents have not paid the amount in time, they are not entitled to get the document executed. The petitioner has also denied the receipt of Rs.5,50,000/- later paid and prayed for dismissal of the application. After hearing both sides, the court below passed Ext.P5 order, which is under challenge.