M N MOHAMMAD MIRZA Vs. B SUBHAN SAHEB

JUDGEMENT

(1.) This letters patent appeal is from the judgment of a learned single Judge in A.S.No. 1134 of 1987 dismissing the appeal preferred by the appellant-defendant No. 1 against the judgment and decree in O.S.Ne. 55 of 1981 on the file of the Court of the Subordinate Judge, Adoni, decreeing the suit of the respondent- plaintiff for specific performance of an agreement of sale (Ex.A-1) dt.28-4-1981 in respect of the house bearing No. 601 of Ward.No. 18 in Adoni town. Defendants 2 to 11 in the suit are either sisters or legal representatives of the sisters of the first defendant, the owner of the suit house and the learned Counsel for the appellant rightly says that they are not necessary parties to this appeal.

(2.) The appellant-defendant is the owner of the suit house. It is recited in Ex.A-1 that the sale consideration is Rs. 28,100/-, out of which, Rs. 5,000/- was taken towards advance by the appellant and the balance consideration should be paid by the respondent-plaintiff before 29-5-1981 for entitlement for registration and failure to get the sale deed registered by that date would entail forfeiture of the deposit and cancellation of the agreement. The appellant undertook that on his part if he fail to register the document, the respondent would be entitled to file a suit and obtain registration through Court. Ex.A-l(a) is an endorsement in the hand-writing of the respondent bearing the date 6-6-1981 on the reverse of Ex.A-1 and it reads: "The time stipulated in this agreement is extended till I obtain discharge endorsement on the mortgage deed of the property and till I produce the same before you. Thereafter, I can register the same in your, favour". The endorsement bears no signature.

(3.) The suit was filed alleging that when the respondent applied to the Sub-Registrar for an encumbrance certificate on 25-4-1981 in respect of the Suit house, he found from the certificate that the property was subject to a mortgage of Rs.15,000/- repayable with interest at 12% per annum and he asked the appellant to ascertain whether the mortagage was redeemed and the mortgage bond obtained. He tendered the balance of sale consideration to the appellant and demanded him to receive the same and execute the sale deed on 27-5-1981. The appellant while informing that the mortgage had been discharged and the redeemed mortgage bond was in Bombay, has been evading to register the sale deed. Keeping in readiness the balance amount, the respondent purchased non-judicial stamps of the value of Rs.2,800/- and that he has been always ready and willing to perform his part of the contract. It was also alleged by the respondent in the plaint that when he demanded specific performance of the contract by issuing a lawyer's notice (Ex.A-2) on 23-6-1981, a reply (Ex.A-3) was sent by the appellant with false and untenable allegations. Asserting that time was not the essence of the contract and it was never intended to be so, it was averred in the plaint that the respondent was depositing the balance of sale consideration in the Court and "if the mortgage dated 29-7-1981 has been fully redeemed and the discharged mortgage bond is with the defendant, the entire amount may be paid to the defendant or if any amount is due under the 'said' mortgage! bond, such amount may be withheld by the Hon'ble Court for discharge of the mortgage and the balance paid to the defendant''.