K JAYAKUMAR Vs. ROBERT

JUDGEMENT

(1.) THE defendant in O.S.No.879 of 1983 on the file of the District Munsif, Gudiyatham, is the appellant in the second appeal. THE respondents herein are the legal representatives of the plaintiff, who died pending the proceedings.

(2.) THE case of the plaintiff was as follows: On 30.6.1980 the defendant entered into an agreement with the plaintiff for sale of the suit property for Rs.6,500. On the same day the plaintiff paid a sum of Rs.500 to the defendant as advance. As per the terms of the agreement the defendant was to receive the balance of sale consideration of Rs.6,000 and execute the sale deed in favour of the plaintiff. Though time was fixed as one year, i.e. 30.6.1980 to 29.6.1981 in the contract, the parties intended that the time was not the essence of the contract. If the purchaser failed to pay the amount within the stipulated time, the agreement would get not only cancelled, but the purchaser would also lose the advance and all rights to the property. THE plaintiff paid a further sum of Rs.1,000 also to the defendant in the presence of Thiru Ramakrishna and Durai of Senguttai Village in 1981. THE plaintiff was always ready and willing to perform her part of the contract. She approached the defendant several times to execute the sale deed in her favour after receiving the balance of sale consideration. THE defendant was postponing the execution for reasons best known to him. Finally the plaintiff issued a registered lawyer notice on 21.7.1982 demanding execution of sale deed in her favour. THE defendant sent a reply containing false allegations. THE plaintiff was having enough money to perform her part of the contract. She was ready and willing to complete the sale as per the terms of the agreement from the date of the document till the filing of the suit. Only the defendant was postponing the execution of the sale deed and finally refused to do so through his reply. Hence she had to file the suit.

(3.) THE learned District Munsif, on the materials placed, held that time was the essence of the contract between the parties, that the plaintiff was never ready and willing to perform her part of the contract, that it was not necessary to give a finding as to whether the defendant was ready to perform his part of the contract, that the plaintiff had not proved that she paid a sum of Rs.1,000 to the defendant in 1981 and that it was not necessary to give a finding as to whether the plaintiff would be entitled to possession in view of the finding on the other issues. By judgment and decree dated 31.7.1987 the trial Court dismissed the suit. However, on appeal in A.S.No.190 of 1987 the learned Additional District Judge, Vellore, allowed the appeal, set aside the dismissal of the suit by the trial Court and decreed the suit as prayed for on 27.4.1989. It is as against that, the present second appeal has been filed.