SYED FAZAL Vs. SAJEEDA PARVEEN

JUDGEMENT

(1.) The defendant in O.S.No.4/89 on the file of the Senior Civil Judge, Khammam, is the appellant herein.

(2.) The respondent/plaintiff filed the suit for specific performance of an agreement of sale dated 15-4-1985 whereunder the appellant/defendant agreed to sell an extent of 510 sq.yards, situated at Khammam (for short 'the suit schedule property') @ Rs.500/- per square yard. It was averred in the plaint that on the date of the agreement an amount of Rs.25,000/- was paid as earnest money and that the appellant agreed to receive the balance of consideration at the time of executing the sale deed and delivering vacant possession. According to the respondent, the appellant was under obligation to produce non- encumbrance certificate and the entire transaction was to be completed within six months. It is also alleged that in addition to Rs.25,000/- paid on 15-4-1985, the appellant has also received an amount of Rs.25,000/- from the husband of the respondent on different occasions. Another amount of Rs.22,000/- is said to have been paid by the respondent on 22-10-1985 through her brother-in-law Mr.Basheer Alt, for the purpose of clearing the mortgage created by the appellant in favour of one Mr. Devaraj. It is stated that in all an amount of Rs.73,600/- was paid by 22-10-1985. It is alleged that inspite of respondent's readiness and willingness to pay the balance of consideration, the appellant did not comply his part of the obligation and, on the other hand, started demanding additional amounts. Accordingly, she sought for a decree for specific performance. Alternative relief of damages for Rs.2,00,000/- together with interest at 24% per annum for the breach of contract was also prayed for.

(3.) The appellant filed written statement stating that it is the husband of the respondent that had bargained and settled the transaction. The execution of the agreement of sale is admitted. However, so far as the payment of the amounts is concerned, the appellant disputed every item of payment pleaded in the plaint. As regards the earnest money of Rs.25,000/-, it was the case of the appellant that an amount of Rs.10,000/- was paid by way of cash and a cheque for Rs. 15,000/- was issued payable at Marripeda Branch of State Bank of India, Khammam District, which could not be realised on account of paucity of funds. It is stated that cash towards the same was paid at a latter date. As against the amount of Rs.25,000/-, the appellant admitted the receipt of Rs.8,700/- including Rs.1,000/- through cheque. As far as payment of Rs.22,000/- on 22-10-1985 is concerned, the appellant flatly denied the receipt of the same. It is the case of the respondent that in all he received Rs.33,700/- only.