KOCHAMMU Vs. KUMARAN S/O KATILATH RAVUNNI

JUDGEMENT

(1.) The defendant in OS. No. 301/1986 on the file of the Principal Munsiff Court, Thrissur is the appellant herein. The suit was one filed by the plaintiff for specific performance of the agreement for sale entered into between the plaintiff and the defendant. The case of the plaintiff in the plaint was that on 11.10.1985, the plaintiff and the defendant entered into an agreement to sell in respect of 54 cents e of land belonging to the defendant comprised in Sy. No. 119 part of Pottor village and both the parties agreed that the plaintiff would purchase the property for Rs. 223/- per cent and paid an advance amount of Rs. 1,000/- to the defendant on that day. It is also agreed between the parties that the document had to be executed on or before 11.12.1985 on receiving balance sale consideration payable for the transaction. The defendant had also undertaken to furnish the back documents and the encumberence certificate relating to the property and also to satisfy the plaintiff about the extent of the property after measuring the same at her expenses. According to the plaintiff, he was always ready and willing to perform his part of the contract and he is continued to be so as well. The plaintiff repeatedly requested the defendant to furnish the back documents and also to measure the property as per the agreement. He sent a notice on 22.11.1985 calling upon the defendant to perform her part of the contract and execute the sale deed. After receipt of the notice, the defendant sent reply with false allegations. It is also alleged in the reply notice that she came to know only recently that 7 1/2 cents of land belonging to her out of 54 cents was in Sy. No. 120 and according to the plaintiff, the allegation is false and incorrect. The plaintiff sought permission to deposit the balance consideration of Rs. l1,042/- and sought decree for specific performance of the agreement of sale dated 11.10.1985 and in the alternate for return of Rs. 1,000/ - and also damage to the tune of Rs. 1,000/- totalling an amount of Rs. 2,000/- payable by the defendant with interest at 12% per annum in case the court felt that specific performance of contract was not possible. Hence the suit.

(2.) The defendant entered appearance and filed written statement admitting the execution of the agreement dated 11.10.1985, the terms and conditions mentioned therein and receipt of the advance amount of Rs. 1000/-. She denied the allegation that the plaintiff was always ready and willing to perform his part of the contract. In fact, he had sent a notice prior to the stipulated time in the agreement with a view to extent the term of the contract for getting execution of the document. He had suppressed material facts and made false allegations in the plaint. In fact, the defendant was always ready and wiling to perform her part of the contract. On 29.10.1985, the property was measured by the Village Assistant, Pottor in the presence of the plaintiff and he prepared a rough sketch of the property and handed over the same to the plaintiff. On measurement of the property, it was revealed that an extent of 7 1/2 cents of land was comprised in Sy. No. 120 and this fact was known to the defendant only on measurement, but this property also comprised within the four boundaries of the property belonging to the defendant and it has been in her actual possession and enjoyment. The plaintiff also noticed this aspect when the measurement was done by the Village Assistant. The property of the defendant originally belonged to her husband's family and by change of hands, she became the owner of the property. On coming to know about the discrepancy in the survey number, the plaintiff was not willing to perform his part of contract and he had sent a registered notice suppressing this fact to which the defendant sent a reply showing the real state of affairs. Though he received reply notice on 7.12.1995, he was not ready and willing to perform his part of the contract. On 11.12.1985, the defendant was present in the Registrar's Office, Thrissur for executing the sale deed in favour of the plaintiff and the plaintiff did not come. In fact the time was the essence of the contract, plaintiff had willfully failed to perform his part of the contract. On account of non performance of the contract by the plaintiff, the defendant was not able to return the amount borrowed from her brother's son Vijayan which she borrowed for the purpose of the marriage of Rejitha, her daughter and she had to sell her ornaments and pay the same and thereby she had sustained a loss of Rs. 3,500/- which the plaintiff was liable to pay and as g such, the plaintiff was not entitled to get a decree for specific performance and also return of advance amount in the alternate as claimed and she prayed for dismissal of the suit.

(3.) On the basis of the pleadings, the following issues were framed by the trial court for consideration: