ROQUE FREDRICK LADINHO COLLASSO Vs. CAMILO ANTONIO AQUAVIVA SEBASTIAO ROBERO AQUINO JOSE EUCIDES DE FIGUEIREDO E MELO

JUDGEMENT

(1.) While admitting the appeal on 6/10/2005, the following substantial questions of law are framed:

(2.) The appellant, who is the plaintiff in the Special Civil Suit no.97/94 assail the concurrent findings rendered against him in a suit for specific performance of contract and for consequential relief. The suit came to be instituted by the plaintiff on 25/7/1994 as it was alleged that the defendants, the owners in possession of landed property known as Carriachi Moddi situated at Kakoda Village of Quepem Taluka bearing Land Registration no.14380 and enrolled in Revenue Office under no.97 was sub-divided into plots which were put up for sale for construction and the defendant no.4 acting as an attorney on behalf of the other defendants sold 2 plots vide no.23 and 24 adjacent to each other to the father of the plaintiff no.1 and 3 in January 1971. It is pleaded that the defendant no.4 agreed to sell the 2 plots jointly admeasuring 1600 sq.mts and for a sum of Rs.18,750.00 out of which a sum of Rs.1500.00 was paid as earnest money and receipt was issued acknowledging the said payment on 15/11/1971. The balance amount of Rs.17250.00 was agreed to be paid at the time of executing final sale deed. The case of the plaintiff is that the writing dtd. 15/1/1971 incorporated a clause to the effect that final sale deed was to be drawn by end of May 1971, on payment of balance amount, failing which the advance was to be forfeited. However, it was on account of the fault of the defendants, the sale deed could not be executed within the stipulated time, as there was a litigation between the vendors of the plaintiff and one late Mauricio Pereira and Others, who were owners of eastern half of the said property, when the father of the plaintiffs was ready and willing to pay the balance amount and execute the sale deed. It is also pleaded that the plaintiffs or their father were not aware of the litigation involving plot no.23 and 24 and the defendant no.4, knowing that the plots are in dispute entered into an agreement of sale vide the writing dtd. 15/1/1971. The case ultimately resulted in compromise before the High Court Panaji Bench somewhere in the year 1985 and the plaintiffs were informed by letter dtd. 3/12/1985 that plot no.23 and 24 went to the share of the opponent in the said case and in the alternative plot no. 57 admeasuring 800 sq.mts was offered. The price of the plot was quoted as ^180/- per sq.mt. Further correspondence was made seeking willingness of the plaintiff as regards plot no.57 at the given rate. The said offer was declined by the plaintiffs and some other plot corresponding to the area of 1600sq.mts was demanded for the same price as agreed in the writing dtd. 15/7/1971 since the non-execution of the sale deed was attributed entirely on account of the fault of the defendants. On 28/1/1986 the alternate plot was sought or the money was demanded back so that they could purchase a plot at some other place.

(3.) In response the defendants pleaded in the written statement, that in terms of the agreement, the father of the plaintiffs was required to effect payment of balance amount so that the sale deed of plot no.23 and 24 could be duly executed in his favour. Reliance was placed on receipt dtd. 15/1/1971, clearly recording that if deed is not drawn by end of May 1971 by paying the balance, the amount of Rs.1500.00 will be forfeited. The defence raised is that there was a failure on the part of the plaintiff to pay balance amount by the agreed timeline and therefore sale deed could not be drawn, resulting in the amount of Rs.1500.00 being forfeited in favour of defendants. Alleging that since late Afonsinho Collasso had forfeited the right to purchase plot no.23 and 24 by default on not effecting payment before end of May 1971, the defendant no.1 offered another plot at the prevalent price if plaintiff no.1 and 3 are still interested in purchasing any plot. Plot no.24 was pleaded to be not saleable as portion of the said plot was being affected by a road. Defendant no.4 expressed his willingness to offer plot no.23 but at the prevailing market rate. The defendants also raised a plea of limitation and averred that the suit for specific performance is beyond limitation prescribed in Article 54 of the Limitation Act. It is also the case of the defendants that there was no restrain order passed by any Court thereby restraining the defendants from entering into any agreement in relation to the suit property and there is failure on part of the plaintiffs to demonstrate "readiness and willingness" to perform the agreement.