RABINA BIBI Vs. PULIPAKA SATYAVATHI

JUDGEMENT

(1.) This second appeal is brought by the 1st defendant in O.S. No. 46 of 1955 against we judgment and decree of the Subordinate Judge of Kakinada in A.S. No. 70 of 1957.

(2.) The facts in brief are as follows: Under an agreement Ex. A-1, dated 9-11-1951, executed by the 1st defendant in favour of the plaintiff, she (1st defendant) agreed to sell the plaint house to the plaintiff tar Rs. 1,600.00. She received a sum of Rs. 150.00 as Bajana or earnest money, and the balance was to be paid to her at the time of the registration of the sale deed for which one months time was allowed to the plaintiff. The one months time was subsequently extended under Ex. A-2 dated 13-12-1951, Ex. A-3 dated 28-12-1931, Ex. A-4 dated 24-1-1952, Ex. A-5 dated 1-2-1952 and Ex. A-6 dated 27-3-1952. On each of these occasions, the plaintiff made payments towards the purchase money and got the time extended by a few days. The last extension was under Ex. A-6 for 20 days from 27-3-1952 on the payment of Rs. 200.00which was in addition to the previous payments amounting in all to Rs. 600.00. On 29-6-1952, the 1st defendant issued a notice Ex. A-7 calling upon the plaintiff to pay the amount due within a week and get the sale deed registered, failing which the amounts paid would be forfeited. The plaintiff replied by Ex. A-8 dated 7-7-1952, Stating that she would not give up her fights under the agreement, that the delay was due to her inability to raise the money and that she would pay the balance of the price as early as possible. On 24-1-1955, the plaintiff Instituted O.S. No. 46 of 1955 stating mat she was able to raise the necessary money only in the third been of December, 1954, and asking for specific performance or, in the alternative, for recovery of Rs. 800.00. The learned District Munsif held that by Exs. A-2 to A-6, time was made the essence of the contract, that the plaintiff committed breach as she was able to raise the requisite money only in the third week of December, 1954, long after the expiry of the one weeks time allowed by Ex. A-7, and that she was, therefore, not entitled to specific performance. He further held that It would be unreasonable to forfeit the entire Rs. 800.00 paid by the plaintiff and that only Rs. 150.00 could be treated as the earnest money and that the 1st defendant was name to pay back Rs. 650.00. On the appeal of the plaintiff, the learned Subordinate Judge held that even Rs. 150.00 was part of the consideration for the sale and that it coma not be forfeited. He allowed the appeal to the extent or granting a decree for Rs. 150.00 disallowed By the trial Court.

(3.) The ground of second appeal by the 1st detendant is that she is entitled to forfeit and is not liable to returned the Rs. 150.00.