M G MATHEW Vs. V NAGAPPAN NAIR

JUDGEMENT

(1.) This appeal is filed by the plaintiff in OS No.417/2005 challenging judgment dated 30/9/2009 by which the suit for specific performance of an agreement for sale of immovable property was dismissed by the Court below.

(2.) The short facts of the case are as under:- Plaintiff and defendant entered into an agreement dated 29/01/2005 by which defendant agreed to sell an extent of 43.70 Ares of land belonging to him to the plaintiff. Plaintiff agreed to pay sale consideration at the rate of Rs. 72, 000/- per cent. He paid an advance of Rs. 10, 00, 000/- as part of sale consideration. He also offered to pay a further amount of Rs. 10, 00, 000/- on or before 30/4/2005 on condition that, before the said date, the defendant should fix the boundaries of the property and should construct a compound wall under his supervision and responsibility for which the expenses will be paid by the plaintiff. According to the plaintiff, he made arrangements for payment of Rs. 10 lakhs in his account which was available from 24/3/2005 itself. However, the defendant did not either take any steps to measure the property and fix the boundaries or to arrange construction of the compound wall. Plaintiff even arranged a contractor to effect construction of the compound wall and paid an advance of Rs. 50, 000/-. But still, the defendant was not willing to perform his part of the contract. Plaintiff therefore caused the issuance of a lawyer's notice on 17/6/2005 seeking specific performance of the contract as the time for performance would expire by 29/7/2005. Having received the notice, no action was taken by the defendant. It was later understood that the defendant was trying to sell the property to certain others and accordingly plaintiff filed a suit as OS No. 915/2005 on 25/6/2005 before the Munsiff's Court, Thiruvananthapuram and sought for a permanent prohibitory injunction to restrain the defendant from alienating the plaint schedule properties. An interlocutory application was also filed seeking for temporary injunction to restrain the defendant from alienating the plaint schedule property to any other person other than the plaintiff/nominees. Interim injunction was granted by the Munsiff's Court. In the meantime, defendant also issued a reply dated 28/6/2005 and the contents according to the plaintiff was untenable. Stating that the plaintiff has been ready and willing to perform his part of the contract, suit is filed on 8/8/2005.

(3.) The defendant filed written statement stating that the plaintiff completely failed to comply with the terms of the contract as he failed to pay the second instalment of Rs. 10 lakhs on or before 30/4/2005. Having failed to comply with the terms of the contract, defendant has no obligation to perform his part of the contract. According to the defendant, plaintiff did not show any readiness or willingness to purchase the property as per the agreement and he was deliberately evading the stipulations in the agreement. It is contended that the defendant had complied with the contractual terms whereas it is on account of the plaintiff's attitude that the sale did not fructify. Before the Court below, plaintiff was examined as PW1 and a witness was examined as PW2. Plaintiff relied upon Exts.A1 to A18 documents. Defendants examined DW1 and DW2.