S.LATHA Vs. T.U. THAMPI

JUDGEMENT

(1.) Defendants 1 and 2 in O.S. No.194/2010 on the files of the Subordinate Judge's Court, Kochi-5 challenge the decree for specific performance granted in favour of respondent/plaintiff directing them to execute a sale deed within a period of two months after accepting the balance sale consideration of Rs.20 lakhs. The suit brought against the 3rd defendant was, however, dismissed and in so far as the respondent who has not chosen to file an appeal against the said dismissal, the judgment to that extent has become final.

(2.) The appellants who are defendants 1 and 2 are the owners of 14.719 cents of land in Survey No.213/1 consisting of a residential building situated in Edakochi village held under separate title deeds in their names. They together agreed to sell the property in favour of the plaintiff by entering into Exhibit-A1 agreement dated 11.7.2009 after accepting an advance amount of Rs.10 lakhs from the latter. The market value of the property was agreed upon as Rs. 45 lakhs and the execution of sale was agreed to take place within a period of six months from the date of agreement for sale. As per the terms of agreement for sale, it was also agreed that the mortgagee already in possession of the property will be duly evicted within a month from the date of agreement for sale provided an additional advance amount of Rs.2 lakhs was also paid to the appellants by the plaintiff. On 28.8.2009 instead of Rs.2 lakhs, plaintiff paid an amount of Rs.7 lakhs to the appellants by way of a cheque drawn from South Indian Bank, Thoppumpady branch. The receipt of cheque was endorsed on the reverse side of Ext. A1 agreement for sale dated 11.7.2009. The mortgage was later redeemed and the property recovered from the possession of the mortgagee. On 11.6.2010, the appellants received another amount of Rs.5 lakhs also as advance amount in cash. On the same day itself, a cheque for Rs.3 lakhs drawn from the South Indian Bank, Thoppumpady branch was issued by the plaintiff to the appellants and thus on 11.6.2010, appellants received a total amount of Rs. 8 lakhs and the said fact was endorsed on the reverse side of Ext.A1. By these endorsements, period of agreement for sale was extended from 11.6.2010 to another one month by the appellants undertaking to measure out the property within the said period.

(3.) According to the respondent, in spite of appellants' undertaking to measure out the property it was not done. Nevertheless, the respondent claims to have gone ahead with the promise made by him and handed over a draft sale deed on 08.07.2010 for the approval of appellants. The draft was not approved by appellants and according to him, he therefore, intimated the appellants through Ext.A2 lawyer notice dated 12.7.2010 that he would appear before the Sub Registry on 19.7.2010 with balance amount of sale consideration being prepared to take the sale deed if executed, in his name. The appellants, on the other hand, sent a reply notice on 14.7.2010 intimating that agreement for sale stood cancelled for the alleged breach of promise committed by the respondent. Alleging these facts and also imputing breach of promise on the appellants, the respondent filed the present suit in the month of October 2010 impleading HDFC Bank also as third defendant who was holding mortgage interest in the plaint schedule property.