MANGALA Vs. KUSUM

JUDGEMENT

(1.) This Second Appeal is filed under Sec. 100 of the Code of Civil Procedure (for short 'CPC') takes exception to the judgment and decree passed in R.C.S. No. 132/1999 dtd. 22/07/2004, whereby the suit filed by the Plaintiff for specific performance of the contract is dismissed and counter claim by the Defendants for the possession of the suit property is allowed and confirmation thereof in R.C.A. No. 112/2004 by judgment dtd. 24/11/2005.

(2.) Parties are referred to as 'Plaintiff' and 'Defendants' for the sake of convenience.

(3.) The facts as they appear from the record indicate that Defendant No.1 is the owner of the suit house. By an agreement dtd. 11/03/1994, she agreed to sale the suit house to Plaintiff for total consideration of Rs.80,000.00. Further admittedly at that time of execution of the agreement to sale a sum of Rs.40,000.00 was paid by Plaintiff the Defendant No.1. It was a term in the agreement that the balance consideration of Rs.40,000.00 shall be paid in 80 equal monthly installment of Rs.500.00 per month. The Plaintiff paid 16 installments and a total sum of Rs.8,317.40 was paid to Defendant No.2. However, thereafter Plaintiff did not pay the amount of installment on the ground that Defendant is not repaying the loan in respect of the suit house. The Plaintiff therefore, addressed notice dtd. 18/01/1996 making such allegation and calling upon Defendant No.1 to accept the entire balance consideration and to execute the sale deed. Defendant No.1 did not respond the said notice. The suit came to be filed for specific performance of contract on 20/04/1999. Plaintiff has deposited the balance consideration before the Trial Court during the pendency of the suit.