SHAIK MAHABOOB SAHAB Vs. K NAGESWARA RAO

JUDGEMENT

(1.) The plaintiff in O.S.No.92 of 1984, in the Court of District Munsif, Chintalapudi, is the appellant. He filed the suit against the respondent, for the relief of specific performance of an agreement of sale, dated 9.7.1981. Under the agreement, the respondent agreed to sell three different extents of land, admeasuring about Acs.9-00, for a consideration of Rs.9,000/-. On the date of agreement, a sum of Rs.3,500/- was paid as advance. Out of the balance, Rs.5,000/- was to be paid to the Co-operative Agricultural Development Bank, Chintalapudi, (for short "the Bank"), to liquidate the loan borrowed by the respondent, and Rs.500/- was to be paid, on or before 10.10.1981.

(2.) The appellant pleaded that the possession of the property was delivered under the agreement, and that he spent considerable amount, to bring it under the cultivation as well as, to put the fencing. It was also his case that ever since the date of agreement, he made number of attempts to remit the amount with the Bank and to pay Rs.500/- to the respondent, but due to non-cooperation, on the part of the bank and the respondent, his attempts could not fructify. Reference was made to a registered notice, got issued through his Advocate on 25.10.1983, and a reply dated 29.10.1983. He expressed his readiness and willingness to perform his part of the contract. According to him, time was not the essence of the contract.

(3.) The respondent filed a written statement, denying the allegations of the appellant. He pleaded that the very purpose of offering the land for sale, was to clear the debts payable to the Bank and other agencies, and having paid an advance of Rs.3,000/-, the appellant did not pay any amount, in spite of repeated demands. It was alleged that the matter was taken before the mediators in September 1982, and though the appellant undertook to pay the balance amount within 15 days, he did not make any payment. Respondent has also stated that he was compelled to transfer the properties of his close relatives, to discharge the liability towards the Bank. Another contention advanced on behalf of the respondent was that one of the items agreed to be sold, was an assigned land and is not capable of being transferred. He pleaded that time was the essence of the contract, and the appellant lost his right to seek specific performance of the same. It was contended that the appellant did not have means to pay the balance of consideration, and ultimately, it was prayed that the suit be dismissed.