KANDAMATH CINE ENTERPRISES PVT LTD Vs. JOHN PHILIPOSE

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed in O.S. No. 56 of 1979 on the file of the Ist Additional Sub Judge, Trivandrum. The suit for specific performance of an agreement was decreed as prayed for and the defendant has filed this appeal.

(2.) In broad but necessarily in precise terms the shape of this case is as follows: The defendant company is the owner of 5 acres and 2 cents of land comprised in Sy Nos. 896, 897, 898 and 911 in Sreekariyam of Pangappara village. The Managing Director of the defendant company agreed to sell 1 acre of land out of the 5 acres and 2 cents of land to the plaintiff for a consideration of Rupees 90,000/-. This property situate on the northern side of the public road which leads to the Government Engineering College. On 15-12-78 the plaintiff paid Rs. 10,000/- as advance amount and Ext. A receipt was issued by the defendant in favour of the plaintiff. Apart from Ext. A1, there was no separate written agreement between the parties. In Ext. A1 the description of the plot agreed to be sold is given as follows : "the plot is just behind the 1 acre of the front land". The balance amount of Rs. 80,000/ - was agreed to be paid within one month from the date of Ext. A1 receipt. The plaintiff's further case is that on 28-12-1978 he paid Rs. 50,000/- to the defendant and the balance amount of Rs. 30,000/- was paid on 4-1-79 as per two cheques drawn in favour of the defendant. The defendant company refused to execute the sale deed. The plaintiff came to know that the defendant was taking steps to sell the property to strangers. The plaintiff filed the suit for specific performance of the agreement alleging that the defendant committed breach of the agreement.

(3.) The defendant contested the suit and disputed the identity of the property. According to the defendant, the plaintiff wanted to have 1 acre of land on the northern side. The defendant further alleged that there is a pathway on the western side of the property and the 1 acre of front land referred to in Ext. A1 relates to 1 acre of land abutting this pathway on the western side and the plot agreed to be sold is behind this plot and not behind the 1 acre of land on the side of the Engineering College road. The defendant also contended that the company received only Rs. 60,000/- and the payment of Rs. 50,000/-, endorsed in Ext. A1, is inclusive of the amount covered by the two cheques issued in favour of the defendant. According to the defendant, the plaintiff was not willing to perform his part of the agreement and that he did not pay the balance consideration.