R RAJENDRAN Vs. R SAMUNDI

JUDGEMENT

(1.) The plaintiff is the appellant herein. The suit is for specific performance based on the agreement dated 20.05.1998 fixing five months time for completion of contract. The sale consideration was Rs.2,00,000/-. On the date of agreement, the plaintiff has advanced Rs.2,000/- to the defendant. Though time for performance was prescribed in the agreement, it was not the essence of the contract. When the plaintiff came to know that the defendant is trying to sell away the property to a third party, he caused notice to the defendant calling upon him to come and execute the sale deed on 30.04.2001. The defendant did not turn up to receive the balance sale consideration of Rs.1,98,000/- and execute the sale deed. Hence, the suit for specific performance.

(2.) The contention of the defendant as found in the written statement is that he entered into agreement with the plaintiff on 20.05.1998 and the sale consideration was fixed at Rs.2,00,000/-. The time for completing the performance was fixed at five months and the time was the essence of the contract, because the defendant wife was suffering from heart ailment to meet out her medical expenses, he was in dire necessity for money. The plaintiff was not ready to perform his part of contract within the time stipulated under the contract. Since the plaintiff failed to pay the balance sale consideration, in time, the defendant was not able to admit his wife in the hospital for treatment, as a consequence his wife died on 07.12.2000. The plaintiff was never ready and willing to perform his contract. Contrarily, on the strength of this agreement he earlier filed the suit in O.S.No.1 of 2000 alleging that the defendant has removed the trees in the suit property and sought for damages. That suit was dismissed on 26.03.2002. The appeal preferred by the plaintiff in A.S.No.27 of 2002 was also dismissed on 19.09.2003. As per the contract, the plaintiff ought to have completed the contract by 20.10.1998, since he did not come forward to complete the contract, the defendant issued notice on 04.10.1998 calling upon the plaintiff to tender the balance sale consideration of Rs.1,98,000/- and to complete the contract. The plaintiff did not care to honour the terms of contract within the time prescribed, he has approached this court with unclean hands to knock away the property. Infact, the plaintiff purchased another property of defendant on 08.03.2001 for sale consideration of Rs.30,000/-, even at that point of time, he did not insist for performance of this sale agreement, since the time is the essence of the contract and the agreement already repudiated, the plaintiff is not entitled for any relief. Further, under Order 2, Rule 2 of the Civil Procedure Code, earlier suit filed by the plaintiff for damages, is a bare to file subsequent suit.

(3.) The trial Court allowd the suit holding that time was not the essence of the contract and the plaintiff was ready and willing to perform his part of contract. For the said conclusion, the trial Court has relied upon Ex.B6 where the plaintiff has purchased the property of the defendant on 08.03.2001 for Rs.30,000/- and the fact of depositing the balance sale consideration of Rs.1,98,000/- on 27.04.2004. The trial Court has also observed that the termination of contract notice alleged to have been sent by the defendant on 04.10.1998 was wantonly sent to a wrong address with intention to defeat the lawful claim of the plaintiff.