MATHEW Vs. LAKSHMANAN

JUDGEMENT

(1.) The defendant in OS No. 173 of 1978 before the additional Sub Judge, Alleppey is the appellant. Respondent was the plaintiff. Trial Court decreed the suit, directing the appellant defendant to execute sale deed in respect of the plaint property in favour of the plaintiff on receipt of the balance sale consideration recited in Ext. A1 within one month in performance of Ext. A1 agreement for sale. In case the defendant did not execute the sale deed as directed, the plaintiff was to deposit the balance of consideration in Court and give notice of deposit to the plaintiff and the plaintiff was entitled to have the sale executed through court in his favour in specific performance of Ext. A1 and that from the date of deposit of the balance of sale consideration in court till recovery of the plaint property, the plaintiff was allowed to realise mesne profits at the rate of Rs. 2,400 per annum.

(2.) Plaintiff respondent filed the suit for specific performance of Ext. A1 agreement for sale which was entered into on 29th March 1978. It related to the sale of plaint schedule property for a consideration of Rs. 15,112 within six months of the date of agreement. An amount of Rs. 3,000 was paid as advance consideration and part of the plaint schedule property consisting of a thatched shed was delivered over to the plaintiff. A shop room in the ground floor of the building was leased to one P.P. George. Defendant appellant was occupying the first floor. According to Ext. A1 agreement, the defendant was to evict the tenant and give vacant possession of the entire building to the plaintiff within the stipulated period. He had also agreed to put up a compound wall to separate the plaint property from its adjoining property. Plaintiff was willing to perform his part of the contract and requested the defendant to execute the sale deed. Defendant filed an application under the Kerala Buildings (Lease and Rent Control) Act to evict the tenant of the shop room. But the same was dismissed. Plaintiff sent Ext. A2 notice on 20th September 1978 expressing his willingness and readiness to perform his part of the contract and requested the defendant to be present in the Sub Registrar's Office, Alleppey on 29th September 1978 to execute the sale deed. The defendant refused to accept that notice. Though the plaintiff was present at the Registry Office from 10.00 a.m. to 3.00 p.m. on that day, the defendant did not appear. He did not execute the sale deed. Notwithstanding his breach of Ext. A1, defendant is bound by the terms of the contract to execute the sale deed. Ext. A1 agreement itself provided that if the defendant was not able to evict the tenant from the shop room within the specified period, he would nevertheless execute the sale deed. Ext. A1 agreement itself provided that such eviction at the expense of the defendant. Plaintiff also claimed that if specific performance would not be ordered for any reason, he may claim in the alternative, the advance amount paid and a further amount of Rs. 2,500 as compensation for breach of contract from the defendant.

(3.) Defendant appellant contended that the plaintiff did not pay him the advance of Rs. 3,000 and consequently he did not put the plaintiff in possession of the thatched building as per the terms of Ext. A1 agreement. It was his case therefore that the plaintiff himself having committed breach of Ext. A1 contract, was not entitled to seek specific performance of the same. He denied any knowledge of the plaintiff having gone to the Sub Registry Office on 28th September 1978. He submitted that the plaintiff ' was not entitled to get the sale deed executed in his favour, nor was he entitled to any compensation for breach of contract in the alternative.