HAMSAMMAL Vs. P V THAKKAR

JUDGEMENT

(1.) The defendant is the appellant. The respondent herein filed the suit for specific performance of the contract of sale D/- 20-10-1974, with the following averments: The appellant defendant is the owner of a house property situate at Oppannakara, St. Coimbatore town. On 20-10-1974, she entered into an agreement with the respondent herein, under which the former agreed to sell the property for a sum of Rs. 55,000/-. A written agreement Ex. A. 1 was duly executed between the parties incorporating all the terms and a sum of Rs. 2502/- was paid as advance. A tenant was in possession of the said property and therefore it was agreed that the balance amount has to be paid at the time of the sale deed and a time of 90 days was fixed for that purpose. It was also agreed that vacant possession has to be delivered within that time, after evicting the tenant. On 2-11-1974, the respondent herein paid another sum of Rs. 2,500/- to the appellant. However, the appellant could not recover possession from the tenant within the stipulated time of 90 days. There were also two mortgage debts over the suit property and the respondent herein agreed to discharge the same from out of the sale price in March 1975, the respondent herein discharged the two mortgage debts amounting to Rs. 32,600/at the request of the appellant. The respondent herein called upon the appellant to execute the sale deed after receiving the balance amount. But the latter was postponing it under some pretext or other. The respondent then gave a notice to the appellant on 1-9-75 setting out all the facts and the appellant gave a reply expressing her readiness and willingness to execute the sale deed and complete the transaction. But she continued to evade and committed breach of the contract and hence, the suit for specific performance of the agreement of sale.

(2.) The appellant-defendant admitted the agreement, but contended that she did not quite understand the terms of the agreement, since it was written in English. Further, the property was in the possession of a tenant and it was not possible for her, she being a woman, to evict the tenant who is in possession of the property and hand over vacant possession of the property to the appellant. The appellant was always ready to receive the balance and execute the sale deed; but it was the respondent herein, who did not evince any interest in getting the sale deed. In fact, in his notice dt. 1-9-1975, the respondent has demanded only the return of all the amounts paid by him and therefore he had abandoned the claim for specific performance. Therefore, at best, he is entitled only to get back the amounts paid by him and not entitled to seek specific performance of the agreement.

(3.) The learned Subordinate Judge found on the facts of the case that time was not the essence of the contract between the parties, that the plaintiff was always ready and willing to perform his part of the contract and that it was only the defendant, who evaded and finally committed breach of the contract consequently, the trial court decreed the suit for specific performance of the contract and directed the appellant to deliver only symbolic possession of the property. The defendant is aggrieved by the judgment and decree of the trial Court and has filed this appeal.