RUBIS THARAYIL Vs. ABDULLAKOYA HAJI

JUDGEMENT

(1.) The plaintiffs in O.S.No. 89 of 2008 has preferred this appeal challenging judgment dated 23.12.2010 of the Sub Court Palakkad, by which a suit for specific performance of an agreement for sale of plaint schedule property came to be dismissed

(2.) As per the plaint allegations, agreement covers 5 items of immovable property of which item No.1 belonged to the 1st defendant, item No.2 belonged to defendants 1 and 2 jointly, item No. 3 belonged to Smt. Beena who was the wife of the 3rd defendant. Beena died and the property had devolved on her legal heirs namely 3rd defendant and their minor children. The 3rd defendant is the legal guardian of the said minor children. Item No. 4 property was jointly owned by the 3rd defendant and his wife late Beena and on the death of Beena the said property devolved on the 3rd defendant and his minor children. Item No. 5 belonged to the 3rd defendant. The entire property is lying as a single plot having total extent of 1775 acres. The 1st Plaintiff through 2nd plaintiff made arrangements for purchasing the said property and accordingly an agreement dated 26.03.2007 was executed between the parties. As per the terms agreed between them, the consideration was fixed at Rs. 11,350.00 per cent. Depending upon the actual extent of property available plaintiffs paid Rs. 75,00,000.00 as advance and offered to pay a further amount of Rs. 75,00,000.00 on or before 15.10.2007. The defendants had undertaken to measure the property and produce the title deeds, before 15.10.2007. Defendants also agreed to produce necessary documents authorising the 3rd defendant to assign the property of the minors in favour of the plaintiffs. According to the plaintiffs, they were ready with Rs. 75,00,000.00 lakhs as on 15.10.2007. But it is contended that defendants did not make available all the documents necessary for executing the sale deed. The defendants therefore agreed that the balance sale consideration be paid only at the time of execution of the sale deed. Plaintiffs further alleged that though they were ready with the balance sale consideration, defendants did not honour the agreement and therefore notice was issued calling upon the defendants to execute and register the sale deed. The defendants sent a reply alleging that plaintiff committed breach of contract and they do not have sufficient funds for paying the balance sale consideration. In such circumstances, the plaintiffs filed the suit for specific performance of the contract, with an alternative prayer for return of the amount paid as advance along with interest and also for realisation of compensation for breach of contract by the defendants.

(3.) Though the defendants admitted execution of agreement and receipt of Rs. 75,00,000.00, according to them plaintiffs were not ready to perform their part of the contract. They admitted having made endorsement dated 14.10.2007 in the agreement and according to them it was made to accommodate the plaintiffs to procure sufficient funds and accordingly sought for dismissal of the suit. During the pendency of the suit, defendants filed application calling upon the plaintiffs to deposit the balance sale consideration stating that they are ready and willing to execute the sale deed. Plaintiffs objected the prayer contending that they are ready to produce necessary documents before the court to show that they have got sufficient funds available with them to pay the balance sale consideration. An order was passed by the trial Court directing the plaintiffs to deposit the entire balance sale consideration. The plaintiffs did not comply with the said direction and hence the suit was dismissed.