MOIDEEN HAJI Vs. ANDI

JUDGEMENT

(1.) Second defendant who purchased the plaint schedule property from the first defendant ia the appellant. Plaintiff filed the suit for specific performance of the agreement for sale between him and the first defendant. Plaintiff contended that he and the first defendant had entered into an agreement Ext. A-l on 8-12-1978, that he paid part payment of the consideration, that be was ready and willing to perform his part of the agreement by paying the balance amount to the first defendant and that in total disregard of the agreement the first defendant sold the property to the second defendant. Second defendant's appeal was dismissed by the District Judge, Manjeri.

(2.) Main contention of the appellant is that the demand of the plaintiff for the specific performance of the agreement on his own terms in contravention of the very terms of the agreement does not tantamount to his readiness to perform his part of the agreement and therefore he is not entitled to a decree for specific performance. As per Ext. A-l the first defendant had agreed to sell the property to the plaintiff. It shows that Rs. 2000/ was paid by the plaintiff to the first defendant on the date of the agreement. The agreement stipulates that the plaintiff has to pay Rs. 3,750/-more to the first defendant within 15 days from the date of agreement and if default occurred he will have to pay Rs. 4,000/-. The period fixed under the agreement was 45 days. Defendant contended that the amount was not offered by the plaintiff within 15 days and hence his liability was to pay Rs. 4,000/-as expressly stipulated in Ext. A-l agreement and as the plaintiff was not ready and willing to perform his part of the agreement decree for specific performance cannot be granted. In other words, counsel contended that the plaintiff cannot unilaterally repudiate the terms of the agreement and insist upon the specific performance of the agreement en his own terms. Admittedly the balance amount was not paid within 15 days as stipulated in the agreement. As that was not done the first defendant is entitled to get Rs. 4,000/- as per Ext. A-l agreement.

(3.) Plaintiff had only offered Rs 3750/-to the first defendant as could be seen from Ext. A-3 notice. It is mentioned in Ext. A-3 that be had kept ready with him Rs. 3,750/-and had approached the 1st defendant to execute the sale deed in his favour. Ext. A-3 concludes by stating that the first defendant should receive Rs. 3,750/-and execute the sale deed in favour of the plaintiff. As the amount was not offered within 15 days as stipulated in Ext. A-l agreement plaintiff could not have taken the stand in Ext. A-3 notice that he was liable to pay only Rs. 3,750/-at the balance sale consideration.