IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 184 of 1995(C)
1. GOPALAN @ KUTTAPPAN
... Petitioner
Vs
1. ELAPPUNGAL JOSE
... Respondent
For Petitioner :SRI.P.BABU KUMAR
For Respondent :SRI.PIRAPPANCODE V.SREEDHARAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :30/11/2009
O R D E R
HARUN-UL-RASHID, J.
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A.S.No.184 of 1995
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Dated this the 30th day of November, 2009
JUDGMENT
The defendant in the suit is the appellant herein. The appeal is
directed against the judgment and decree dated 30.1.1995 in O.S.No.
63/1993 on the file of the Sub Court, Manjeri. The trial court held that the
plaintiff is entitled to a decree for specific performance of the contract
Aggrieved by the above said decree and judgment, the defendant has
preferred this appeal The parties hereinafter are referred to as plaintiff
and defendant as arrayed in the suit.
2. The suit is for specific performance of the contract. The
defendant offered to sell the plaint schedule property to the plaintiff for a
consideration of Rs.42,000/- and accordingly they entered into an
agreement incorporating the terms on 24.1.1990. An advance amount of
Rs. 4,000/- was paid by the plaintiff on the date of agreement . The
plaintiff also paid Rs. 17,000/- to the defendant towards the balance sale
consideration on 26.4.1990. According to the plaintiff he has always been
ready and wiling to get the sale deed executed before the date fixed for
executing the document (i.e. 31.7.1990),but the defendant violated the
terms of the agreement and clandestinely sold the valuable timber trees
including jack trees, mango trees and rubber trees for Rs.10,000/- It is
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pleaded that the defendant had alienated the property to a third person It
is also averred that the plaintiff is ready and willing to deposit the balance
same consideration of Rs. 21,000/- and also prayed for passing a decree
for specific performance of the contract.
3. In the written statement filed by the defendant,he admitted the
terms of agreement . The payment of Rs.4,000/- as advance amount and
the balance consideration to be payable is also admitted. The defendant
contended that the plaintiff was not ready to pay the balance sale
consideration on or before 31.7.1990 and also denied the allegation in
the plaint that he had cut and removed certain trees standing in the plaint
schedule property. It is also contended that when the defendant was in
dire need of money and finding that the plaintiff was not ready to perform
his part of the contract, the defendant was compelled to execute another
agreement with one Monichan S/o Mathai for sale of the plaint schedule
property for a consideration of Rs. 62,000/-
4. The trail court framed necessary issues. On the plaintiff’s side
PWs 1 to 3 were examined and Exts. A1 to A4 were marked. On the
defendants’ side DW1 was examined and no documents were produced
on his side.
5. The execution of Ext.A1 is admitted. As per Ext.A1, the
plaintiff had paid a sum of Rs.4,000/- towards sale consideration on the
date of Ext.A1 agreement and agreed to pay a sum of Rs.16,000/- towards
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the sale consideration on or before 28.2.1990 and the remaining balance
consideration of Rs.22,000/- to be paid on or before 31.7.1990. It is seen
from Ext.A1 that a sum of Rs.17,000/- was paid to the defendant and the
same was endorsed in Ext.A1 on 26.4.1990. Ext.A2 is the copy of the
notice sent by the plaintiff to the defendant requesting the defendant to
come to the Sub-Registrar’s Office .
6. On a perusal of the evidence on record, it reveals that after
Ext.A1 agreement the defendant had sold the trees standing in the plaint
schedule property. In Ext.C1 Commissioner’s report the Commissioner
reported that 34 rubber trees were cut and removed from the property
about 6 to 7 months prior to his inspection.
7. The learned Sub-judge examined the facts and circumstances
in detail and rightly concluded that the defendant had committed breach of
the contract and that the plaintiff has always been ready and willing to
perform his part of the contract. The trial court held that the plaintiff is
entitled to get a decree for specific performance of the contract. I find that
no grounds are made out to interfere with the judgment and decree
passed by the learned sub judge in the given circumstances.
In the result,the appeal fails and accordingly dismissed. No order as
to costs.
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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A.S.No.184 of 1995
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JUDGMENT
31st November, 2009