K.M. AHAMMED KOYA Vs. MOORKOTH SUJITHA

JUDGEMENT

(1.) The appellant herein is the plaintiff and respondent herein is the defendant in OS.No.328/2013 on the files of the Additional Sub Court-II, Kozhikode. The suit is one for specific performance of contract with alternative prayer for realisation of advance amount. The appellant on 09.01.2010 entered into Ext.A1 agreement with the respondent by which the respondent agreed to sell and the appellant agreed to purchase the plaint schedule property for a total sale consideration of Rs.97 lakhs. On the date of execution of Ext.A1, Rs.15 lakhs were paid to the respondent as advance. The respondent before execution had agreed to evict the tenant, who had occupied the plaint schedule property. Since the tenant was not evicted as promised, respondent sought for further time to fulfil his part of contract. Though the appellant was willing and ready to perform his part of contract, the respondent was not ready to accept the same. In the said circumstances, the above suit was filed.

(2.) The respondent entered appearance filed written statement and resisted the prayers therein. Execution of Ext.A1 and A2 and receipt of Rs.15 lakhs towards advance sale consideration were denied by the respondent. The learned Sub Judge on erroneous appreciation of evidence, facts and circumstances of the case in hand, by impugned judgment and decree speciously dismissed the suit finding that the appellant was not entitled for a decree for specific performance of contract. The lower court has decreed the suit for realisation of an amount of Rs.15 lakhs and it was found that the appellant is entitled to realise the same with 8% interest from the respondent from 09.01.2010 till realisation of the entire amount. The respondent had denied execution of Exts.A1 and A2 agreements.

(3.) The trial court has found that Exts.A1 and A2 agreements have been executed by the respondent as claimed by the appellant. So having found that the denial of execution is false, the court below ought to have granted the discretionary relief of specific performance of contract in favour of the appellant. Hence, the appeal.