PUNDI GOVINDARAJAN Vs. SUBAS CHANDRA SAHU

JUDGEMENT

(1.) This Appeal is preferred by the plaintiff in O.S.No.627 of 1987 on the file of the learned District Munsif at Palakonda.

(2.) The suit was filed by the plaintiff for specific performance of an agreement of sale directing the defendant to execute a sale deed in respect of the plaint schedule property and to put the plaintiff in possession of the same or in the alternative to pay the advance amount of Rs.5,100/- with interest. The defendant resisted the suit and both parties adduced evidence in support of their respective contentions. The trial Court, after considering the evidence adduced by both parties, granted the decree in favour of the plaintiff directing the defendant to execute the sale deed in respect of the suit schedule property of 4 cents and put the plaintiff in possession of the same. Being aggrieved by the same, the defendant preferred A.S.No.15 of 1996 on the file of the Subordinate Judge, Rajam and the learned Subordinate Judge allowed the Appeal by setting aside the Decree and Judgment of the lower Court to the extent of the relief of specific performance and decreed the suit for alternative relief of refund of Rs.4,901/-. Being aggrieved by the same, the plaintiff preferred the present Appeal challenging the validity and legality of the Judgment of the Appellate Court with the following substantial questions of law to be considered by this Court: 1]. Whether the time is the essence of the contract between the parties; 2]. Whether the Appellate Court failed to frame points for consideration in the Appeal Suit; and 3]. Whether there is any perversity in the Judgment of the Appellate Court.

(3.) The Suit was filed for specific performance of an agreement of sale. An agreement of sale was executed in favour of the plaintiff on 21-07-1987 agreeing to sell the land for Rs.16,000/-. At the time of execution of the agreement of sale, Rs.5,001/- was given by the plaintiff as advance. The balance of sale consideration was agreed to be paid on 06-10-1987 and the plaintiff to bear the stamp and registration charges. The plaintiff averred that the defendant, with a view to sell the land for a higher price, gave a notice on 19-10-1987 to complete the execution of sale by 26-10-1987. The said notice was not received by the plaintiff before 23-10-1987 as he was absent at his village. After receiving the notice, the plaintiff asked the defendant about the notice. The defendant stated that he has issued the notice in the usual course and the plaintiff need not worry about it. But curiously on 08-11-1987, the defendant sent another registered notice informing the plaintiff about the cancellation of the agreement of sale and sent a draft for Rs.4,901/- in the name of the plaintiff. The draft was returned to the defendant's advocate stating that a suit is being filed in the Court. The plaintiff further averred that time is not the essence of the contract. The defendant has no legal right to cancel the suit agreement on the ground that the time is the essence of the contract. The defendant refused to execute the sale deed. The plaintiff is always ready and willing to perform his part of contract. Hence, the suit for specific performance.