V R CHITHRA DEVI Vs. OMANA MENON

JUDGEMENT

(1.) Defendants 3 to 5 in O.S.282/1980 on the file of the Munsiff Court, Perumbavoor are the appellants herein. The suit was filed by respondents 1 to 5 for specific performance of the agreement to sale dated 25.02.1978 entered into between Damodaramenon, the husband of the first plaintiff and father of plaintiffs 2 to 5 with defendants 1, 2, 4 to 6 agreeing to purchase 38 cents of land with a house therein for a total consideration of Rs.5,000/. Out of which Rs.3,000/- was paid as advance and the balance amount has to be paid within six months and it has to be intimated to the vendor, thereby they will make arrangements to get Chithra, who is the 3 rd defendant who is not a party to the agreement and execute the document in favour of Damodaramenon. According to the plaintiffs, even during the life time of Damodaramenon and during the subsistence of the period mentioned in the agreement itself, Damodaramenon was approaching the defendants with money and they were postponing the same on one ground or other. Even thereafter, he approached along with PWs 2 and 3. Thereafter he died on 14.12.1979 and even after his death, first plaintiff approached the defendants to get the document executed, after receiving the amount, they did not agree for the same. So she sent Ext.A2 notice to the defendants, asking them to receive the amount and execute the document fixing the date for execution, but they did not come to the registrar's office as requested for, but they sent a reply with false allegations, that prompted the plaintiffs to file the suit for specific performance. In the plaint, it was mentioned that Damodaramenon was having financial capacity to pay the amount and he was ready and willing to perform the contract and it was due to the fault of the defendants that the same could not be materialised.

(2.) The first defendant remained ex-parte.

(3.) Defendants 2 to 6 filed joint written statement admitting the execution of Ext.A1 agreement. It was mentioned in the written statement that 3 rd defendant was not a party to the agreement and she was not aware of the execution of the document. They also contended that, during the life time of Damodaramenon, he never approached the defendants to get the document executed by tendering the amount. The allegations contra in the plaint that, he was ready and willing to perform his part of the contract and even he approached the defendants along with PWs 2 and 3 and after the death of Damodaramenon, plaintiffs also requested through PWs 2 and 3 for that purpose and only then she realised that they will not execute the document etc., is not correct and denied. They have also stated that they have sent proper reply to the notice. Further the price of the land has been escalated and the property will fetch more than Rs.4,000/- per cent and if specific performance is ordered after the lapse of two years of the agreement, they will be put to irreparable hardship. They also contended that, since Damodaramenon did not comply with the terms, they will have to sell another property and thereby they sustained loss of Rs.3,000/- and as such, they are not return the advance amount paid and so they prayed for dismissal of the suit.