ETTANUNNI RAJA Vs. ARAVINDAKSHA MENON

JUDGEMENT

(1.) Defendant in a suit for specific performance of a contract for sale is the appellant. The appeal is directed against the judgment and decree of the Trial Court decreeing specific performance of contract. The plaint averments are as follows:

(2.) The plaint schedule property along with some other property originally belonged to Thiruvannoor Puthiyakovilakathu tarwad. The property of that tarwad was partitioned as per the final decree ie. I.A. No. 431 of 1949 in O.S. No. 33 of 1946. The plaint schedule property shown as plot 'D' in the plan, along with other properties have been set apart to the share of the defendant who was the 6th defendant in that suit. In the year 1970 the defendant obtained purchase certificate for the property and he has been in possession and enjoyment of the same. The defendant as per Ext. A1 agreed to sell item No. 1 property described in the plaint to the plaintiff. Item No. 2 property was also agreed to be sold to the plaintiff for ingress and egress. The total consideration fixed in Ext. A1 for items 1 and 2 was Rs.1,30,000/- out of which a sum of Rs.50,000/- was paid as advance by cheques in two instalments of Rs.20,000/- and Rs.30,000/-. As per Ext A1 agreement, the plaintiff has to pay the balance sale consideration by 30th of April 1993 and the defendant had to execute the sale deed in favour of the plaintiff or the person as directed by the plaintiff. At the time of payment of the balance sale consideration of Rs.80,000/-, the defendant has to give actual possession of the plaint schedule property. There is also specific recital in the agreement (Ext. A1) to the effect that the defendant has to evict the mortgagees who are holding possession over the plaint schedule property. The original of Ext. A1 agreement has been handed over to the plaintiff and a copy of the same is in the possession of the defendant. But the defendant failed to hand over the required documents necessary to execute the sale and also failed to evict the mortgagees from the property within the prescribed time. According to the plaintiff, he was ready and willing to perform his part of the contract. But the defendant failed to perform his part of the contract and he has not evicted the mortgagees from the property and the same has not been intimated to the plaintiff. The plaintiff having come to know that the defendant was trying to alienate the property to strangers, the present suit was laid for specific performance and also for an order of injunction restraining the defendant from alienating the property to strangers.

(3.) The defendant filed a written statement contending inter alia that the mortgagees in question were evicted before the stipulated date and that the entire title deeds and other relevant documents which are necessary for drawing up and execution of the assignment deed were also handed over to the plaintiff in time; the receipt of which has been acknowledged by the plaintiff. According to the defendant, it was the plaintiff who defaulted in performing his part of the contract, Ext. A1. The specific case set up is that the plaintiff had not purchased the stamp papers nor had he arranged to prepare the draft of the sale deed in spite of several requests. According to the defendant, the plaintiff did not have the sum of Rs. 80,000/- payable to the defendant on or before 30.4.1993 or even later. The Trial Court on appreciation of the evidence and the pleadings decreed the suit for specific performance with costs after entering a finding that the defendant has defaulted in performing his part of the contract. Hence this appeal.