AYISSABI Vs. GOPALA KONAR

JUDGEMENT

(1.) Suit for specific performance of Ext. A1 agreement for sale of 4 3/4 cents of land was dismissed by the Trial Court but decreed by the appellate court and defendant challenges the decree. The short but substantial question of law for consideration is whether the plaintiff who repudiated the contract and claimed damages could turn back and seek specific performance.

(2.) The finding of the Trial Court on the pleadings and evidence is that plaintiff was in breach of the terms and he was not ready and willing to perform his part of the contract and hence is disentitled not only from getting specific performance but also in getting damages or even return of the advance amount. The appellate court without considering the conduct of the plaintiff and its effect and without considering the readiness and willingness of the plaintiff, decreed the suit solely on the finding that the defendant was at breach.

(3.) Est. A1 agreement is dated 4-4-1979. It was to sell the property for Rs. 958/- per cent within two months. Of course it could be said that time was not the essence of the contract. Oral evidence is not of much essence because what is there is only oath against oath and each party was blaming the other. The agreement provided that in case of breach by the defendant, plaintiff will be entitled to get back the advance amount of Rs. 1,000/- and another amount of Rs. 1,000/- by way of damages.