K UMMER HAJI Vs. KUNHIMOOSA

JUDGEMENT

(1.) The plaintiff in O.S.No. 423/2007 is the appellant. He challenges judgment dated 25.8.2009 by which the suit for specific performance of an agreement for sale stands dismissed.

(2.) The short facts as averred in the plaint are as under: The plaintiff and defendant entered into an agreement for sale dated 10.3.2006 (Ext.A1) . The property which was sought to be assigned was having an extent of 9.408 cents in Sy 512/4 of Ernakulam Village. The total sale consideration mentioned in the agreement was Rs.58, out of which Rs.5 lakhs was paid as advance. As per the terms of the agreement the defendant agreed to assign the property free from all encumbrances within a period of 3 months from the date of agreement. Plaintiff contended that he was all along ready and willing to perform his part of agreement, but the defendant having failed to provide an unencumbered marketable title and even measure the property to the satisfaction of the plaintiff, the plaintiff did not pay the balance sale consideration. Despite sending registered letter, the defendant was not ready to perform his part of the contract. In the alternative, he filed a suit for specific performance with an alternate prayer for recovery of Rs.5 lakhs paid as advance with interest and cost.

(3.) Defendant filed a written statement inter alia contending that though he was ready and willing to execute the sale deed, since the plaintiff did not turn up to pay the balance sale consideration within the stipulated time, the defendant had no obligation to execute the agreement. He also averred that he sustained a loss of Rs.25 lakhs since the plaintiff did not pay the balance sale consideration within the stipulated time.