SOOSAI MICHAEL PETER Vs. BALATHASAR

JUDGEMENT

(1.) The unsuccessful Defendant, who lost in both the courts below is the Appellant.

(2.) The suit was filed by the Respondent/Plaintiff for specific performance of an agreement of sale executed by the Appellant/Defendant.

(3.) The case of the Respondent/Plaintiff was that on 1.3.1996, an agreement of sale was executed between the Appellant and the Respondent whereby, the Appellant agreed to sell 12-1/2 cents of property to the Respondent/Plaintiff at the rate of Rs. 40,000/- per cent and it was represented by the Appellant that in the oral partition between him and his brothers, the property mentioned in the agreement of sale was allotted to his share and after getting concurrence from his brothers, he would execute and register the sale deed. On the date of agreement, a sum of Rs. 81,000/- was paid as advance and on 19.10.1996, another sum of Rs. 5000/- was paid and endorsement was also made on the reverse of the agreement of sale wherein the Appellant admitted that his brother filed a suit in O.S. No. 450 of 1996 for partition in respect of the suit property and also obtained an order of injunction and therefore, he cannot execute the sale deed and as soon as final decree is passed in the said suit, he would execute the sale deed. It is the further case of the Respondent that the Appellant/Defendant did not inform about the final decree passed in that suit and was informing that the suit was not disposed and later the Respondent/Plaintiff came to know that final decree was passed even in the year 2002 and immediately, he sent a notice demanding execution of the sale deed and the Appellant/Defendant sent a reply stating that the agreement cannot be executed as the Respondent/Plaintiff did not come forward to pay the balance sale consideration within two months from the date of passing of the final decree and time was the essence of the contract and final decree was passed on 23.7.2002 and it was informed to the Respondent/Plaintiff and even thereafter, the Respondent did not come forward and he only wanted his money back and therefore, the agreement cannot be relied upon by the Respondent and the Appellant is also not bound to execute the sale deed. Therefore, the Respondent filed a suit for specific performance.