INTI VEERA VENI Vs. MAHADASA VARA LAKSHMI

JUDGEMENT

(1.) (Appeal under Section 96 of C.P.C., Against the judgment and decree dated 02/03/1993 in OS.No:27 of 1985 on the file of the court of the Subordinate Judge, Narsapur). The appellant herein is the plaintiff in O.S.No.27 of 1985 on the file of the Court of Subordinate Judge, Narsapur. She filed the suit for specific performance of agreement of sale dt.4.10.1983 under which first defendant agreed to sell the suit schedule property admeasuring Acs.0.121/2 or 605 Sq.Yards in Palakol town of West Godavari District, for Rs.60,000/-. As per the terms of the agreement an amount of Rs.10,000/- was paid as advance. Out of balance sale consideration, first instalment of Rs.20,000/- had to be paid on or before 24.10.1983, and the balance amount of Rs.30,000/- on or before 31.1.1984 failing which the plaintiff is liable to pay interest at 18% per annum. First defendant agreed to execute sale deed after receiving sale consideration and in the even of first defendant not executing the sale deed, vendor is not liable to pay any interest. It was also agreed that first defendant would discharge the amount due to Tummalapalli Sattiraju, Managing Partner of Raja Tea Company, Kakinada, to whom, the suit schedule property was given as security.

(2.) It is the case of the plaintiff that she made attempts to pay amount or Rs.20,000/- on 24.10.1983 to first defendant through her husband, but she was informed that first defendant would accept the money after taking measurements of the plot. First defendant did not accept the payments when the plaintiff was ready to pay second instalment of Rs.30,000/-. Therefore, the plaintiff issued five notices through Lawyer demanding execution of sale deed after receiving balance of sale consideration of Rs.50,000/-, in vain. But, first defendant allegedly sold away the suit schedule land to second defendant and delivered possession to him with ulterior motive in collusion with second defendant. The plliantiff is ready and willing to perform her part of contract and therefore the suit for specific performance praying the Court to direct the first defendant to execute and register sale deed in favour of the plaintiff after receiving balance consideration and on default thereof, to permit the plaintiff to get the sale deed executed through Court and for possession. The plaintiff also alleged that when the plaintiff informed the first defendant that she would to go the Court, first defendant and her husband over possession to the plaintiff. But as there was dispute regarding the same, she also prayed for possession.

(3.) First defendant filed a written statement denying plaint allegations. It was pleaded that the plaintiff was not ready with Rs.20,000/- on 24.10.1983, that the plaintiff failed to get ready with the money that she was not having any money with her necessary for registration fees and ancillary expenses and that plaintiff not ready and willing to perform her part of contract. The plaintiff instead of paying the money went on giving notices. First defendant in reply notices informed the plaintiff that time is essence of the contract. The plaintiff instead of paying the money went on giving notices. First defendant in reply notices informed the plaintiff that time is essence of the contract and if she fails to pay the amount within the time stipulated in the notice, the agreement stands cancelled. The plaintiff did not comply with the request and therefore the agreement was cancelled and the property was sold to second defendant for a sum of Rs.80,000/-. After taking Rs.40,000/- second defendant on the date of agreement and Rs.5,000/- each on other dates, possession was also handed over to second defendant. Due to breach of contract committed by the plaintiff first defendant. Due to breach of contract committed by the plaintiff first defendant is put to loss though she got an opportunity to sell the property for an amount of Rs.1,00,000/-. It is also alleged that the first defendant has not committed any breach and it is only the plaintiff who is responsible for the cancellation of suit agreement. The first defendant is not liable to refund Rs.10,000/- as the same was forfeited after canceling the agreement. First defendant also prayed for compensatory costs.