ANTONY CORREYA Vs. MOHAMMED ABDUL RAHIMAN

JUDGEMENT

(1.) The defendants in O.S. No. 366/2005 on the file of the Sub Court, Ernakulam, came up with this appeal, aggrieved by the decree and judgment dated 26.08.2006 in so far as it is against them. Cross Objection was submitted by the plaintiff aggrieved by the decree and judgment in so far as it is against him.

(2.) The dispute is with respect to the non performance of respective part of contract for sale, dated 11.11.2003, by the parties, and the payment of various amounts including advance amount out of the sale consideration. The execution of the contract for sale is not in dispute. The agreement was entered into for the sale of approximately 503-509 cents of property at the rate of Rs. 26,000/- per cent. At the time of execution of the contract for sale, the defendants furnished copies of all documents of title to the plaintiff with an undertaking that the originals would be produced at the time of execution and registration of the sale deed. It was for a period up to 15.05.2004. Payment of an advance amount of Rs. 12,00,000/- (Rupees Twelve Lakhs) at the time of execution of the contract was admitted. There is a stipulation in the contract for payment of Rs. 15,00,000/- (Rupees Fifteen lakhs) as further advance subject to the condition that the defendants shall settle the dispute pertaining to the approach road from the public road with the kudikidappukars on or before 07.01.2004. It is further alleged by the plaintiff that the time has not been made as the essence of the contract. An amount of Rs. 18,00,000/- (Rupees Eighteen lakhs) out of the sale consideration was given to defendants on 103.2004 and the same was acknowledged by them in the original agreement dated 11.11.2003. But, the sale could not be effected before 15.05.2004 due to the lethargic attitude of defendants. Based on the assurance given by the defendants to settle the dispute regarding the approach road, another amount of Rs. 18,00,000/-(Rupee Eighteen lakhs) was given by the plaintiff on 31.10.2004 and the period of agreement was extended till 31.12004. It was also agreed by the plaintiff to pay a further amount of Rs. 3,00,000/- (Rupees three lakhs) on or before 10.11.2004 and it was paid on 11.11.2004. The payment of Rs.

(3.) The lower court decreed the suit allowing specific performance of the contract for sale and found that there is no satisfactory evidence to prove the disputed payment of Rs. 3,00,000/- (Rupees Three lakhs). Aggrieved by the said decree and judgment, this appeal and cross objection were filed.