KOTA RAMA RAO Vs. KOLLI RAJESWARAMMA

JUDGEMENT

(1.) This is an appeal filed by the defendant against the judgment and decree dated 15-12-1987 passed in O.S. No.273 of 1982 by the II Additional Subordinate Judge, Kakinada in a suit brought by the plaintiff to enforce specific performance of agreement of sale dated 9-7-1979 upon a site approximately 500 square yards after getting the area measured and the septic tank in item No.2 of the plaint schedule is removed. Pleadings:

(2.) It is admitted that the appellant/ defendant entered into an agreement of sale dated 9-7-1979-Ex.A1 with the respondent/ plaintiff, agreeing to sell 500 square yards of house site adjacent to his building, which is purchased under a registered sale deed dated 21-6-1978-Ex.B4, for a sale consideration of Rs.48/- per square yard and received a sum of Rs.1,500/- towards advance on the said date and the balance of sale consideration has to be paid within three months i.e. on or before 8-10-1979 after giving credit to the advance amount paid and the sale deed has to be executed in favour of plaintiff or her nominee and possession should be delivered. Whereas the plaintiff asserts that she is always willing and ready to perform her part of the agreement but some time after agreement, plaintiff and her husband noticed that in the joint site described as Item No.2 in the schedule defendant constructed a septictank for his newly constructed latrines which was not there at the time of agreement. Plaintiffs husband met the defendant and asked to get the tank removed in the joint site for which defendant agreed to do so but failed to get the tank removed and postponing the same on one pretext or the other. Therefore, the plaintiff got issued suit notice-Ex.A2 dated 28-6-1982 calling upon the defendant to remove the septic tank, get the site measured and get the sale deed registered after receipt of balance sale consideration and also deliver possession of the property. But the defendant failed to comply with or reply to the same. Plaintiff is, therefore, entitled to claim specific performance of agreement of sale. If it is held that plaintiff is not entitled to specific performance, she is entitled to alternative claim of refund of Rs.1,500/- with interest at the rate of 18% per annum from 9-7-1979. Though it is averred in the plaint, but there is no alternative claim of refund of the amount in the prayer portion.

(3.) It is the case of the defendant that the plaintiffs husband entered into sale agreement with him and he was not aware of the fact that the said agreement was obtained in his wife's name till the suit notice is received. The alleged construction of septic tank in the joint site in Item 2 of the schedule is not correct and the same was constructed prior to entering into the agreement. When the defendant demanded the plaintiffs husband to obtain sale deed, he postponed the same from time to time and he came to know that the plaintiffs husband has no money to purchase the same and he obtained the sale agreement with an ulterior motive to sell the same to third parties for profit and get the sale deed executed in the name of intending purchasers without himself investing the money. In view of the same, defendant got issued a registered notice-Ex.B1 dated 25-7-1981 to the husband of the plaintiff with the above facts informing that he is liable to pay interest at 18% per annum on the balance of sale consideration due to the defendant from the due date till the date of obtaining sale deed making time is the essence of the contract for getting the sale deed within one week from the date of such notice. Failure to do so the agreement stands cancelled and earnest money will be forfeited and further damages, if any. Plaintiffs husband having received the notice under Ex.B2-postal acknowledgment has not evinced any interest to get the sale deed registered as demanded and the said agreement stood cancelled. The same was also informed to the plaintiff by way of reply-Ex.A4 dated 15-7-1982. Further it was stated by him that he agreed to sell the suit property for discharging all his debts and has been pressing the plaintiffs husband to obtain the sale deed, but he was postponing the same. The averment in the suit notice and in the plaint that the defendant constructed septic tank and latrines subsequent to the agreement of sale and he is agreeing to remove the same is only a ruse for non- performance of contract on her part and the plaintiff has no right to ask him to remove the said tank, as the said site was not agreed to be sold nor septic tank was constructed subsequent to the sale agreement. Only a right of passage was given through the defendant's site along with defendant. When the sale agreement stood cancelled in July, 1981 itself and in the absence of its subsistence, issuance of suit notice one week before lapse of three years is speculative and plaintiff is not entitled to any decree for specific performance.