Aaludheen vs Shavudheen on 16 March, 2010

Kerala High Court
Aaludheen vs Shavudheen on 16 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

AS.No. 105 of 2000(A)



1. AALUDHEEN
                      ...  Petitioner

                        Vs

1. SHAVUDHEEN
                       ...       Respondent

                For Petitioner  :SRI.SAJAN VARGHEESE K.

                For Respondent  :SRI.V.CHITAMBARESH

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :16/03/2010

 O R D E R
                       HARUN-UL-RASHID, J.
                   -----------------------------------
                         A.S.No.105 of 2000
                    ---------------------------------
              Dated this the 16th day of March, 2010

                           J U D G M E N T

Appellants are the supplemental defendants 3 to 9 in

O.S.No.430 of 1991 on the file of the Sub Court, Palakkad. The

original defendant died during the pendency of the suit. Suit is

filed for specific performance of sale agreement in respect of the

plaint schedule property. The trial court passed a decree for

specific performance directing the appellants to execute the sale

deed in favour of the plaintiff, in default the plaintiff is entitled to

get the sale deed executed through court. Aggrieved by the

decree and judgment the supplemental defendants 3 to 9 have

preferred the appeal. Parties are hereinafter referred to as the

plaintiff and supplemental defendants as arrayed in the suit.

2. Ext.A1 is the agreement for sale. The subject matter

of the suit is a shop room. Ext.A1 is dated 21.3.1991 executed

between the plaintiff and the deceased first defendant. The sale

consideration fixed is Rs.66,000/-. The first defendant received

Rs.6,000/- as advance amount. The last date fixed for execution

of the sale deed is 1.9.1991. In Ext.A1 it is agreed by the parties

A.S.No.105 of 2000 – A

2

that the plaintiff shall pay a sum of Rs.10,000/- on or before

1.5.1991 and the balance amount before the expiry of the last

date fixed for execution of the sale deed. The plaintiff was put in

possession of the plaint schedule property on the date of Ext.A1

agreement.

3. Plaintiff alleged that the first defendant did not accept

the payment of Rs.10,000/- before the date fixed in Ext.A1

agreement. Thereupon the plaintiff deposited the amount in

bank and the plaintiff is always ready and willing to perform his

part of contract but, the defendant was not ready to execute the

sale deed in time. Instead, he issued Ext.A3 lawyer notice on

9.6.1991 cancelling the agreement stating that the plaintiff failed

to pay Rs.10,000/- on or before 1.5.1991 as agreed in Ext.A1

agreement. Plaintiff further stated that he had also purchased

stamp papers for executing the contract.

4. Deceased first defendant in the written statement

admitted the execution of Ext.A1 and receipt of Rs.6,000/- as

advance. According to him the time is the essence of the

contract and that the plaintiff failed to pay Rs.10,000/-, on or

before 1.5.1991. Therefore, he send Ext.A3 notice dated

A.S.No.105 of 2000 – A

3

23.6.1991 cancelling the agreement. In such circumstances, the

defendant is not liable to perform his part of contract and he

prayed for dismissal of the suit.

5. The plaintiff was examined as PW1. Exts.A1 to A9

were marked on his side. Supplemental 3rd defendant was

examined as DW1. Defendants did not adduce any documentary

evidence.

6. PW1 testified before the court that he paid Rs.6,000/-

as advance and he was put in possession of the property on the

date of Ext.A1 agreement (Ext.A1 also contains recital to that

effect). He approached the first defendant with Rs.10,000/-.

But, the first defendant refused to accept the said amount and

therefore PW1 deposited the amount in the bank. He produced

Ext.A4 pass book issued from the bank. Pass book shows that he

deposited Rs.10,000/- on 13.5.1991. The court below observed

that though DW1 denied the tendering of the amount to his

father, his evidence reveals that he has no direct knowledge

about the said fact. Ext.A3 is the notice issued by the first

defendant cancelling the agreement stating several reasons.

Ext.A4 is the reply notice sent by the plaintiff. In Ext.A4 plaintiff

A.S.No.105 of 2000 – A

4

stated that the defendant has no right to cancel the agreement

and he is entitled to get 6% interest for the delayed payment by

the terms of Ext.A1 agreement. In Ext.A4 reply notice plaintiff

also requested the first defendant to give a specific date before

31.1.1991 for executing the sale deed. Ext.A5 is another letter

issued by the plaintiff requesting the defendant to appear before

the Sub Registrar Office on 28.8.1991 at 11:00 a.m. Ext.A6 is an

unserved letter send by the counsel to the first defendant on

16.8.1991. Ext.A7 is the photocopies of the stamp papers in the

name of the plaintiff. According to the plaintiff original stamp

papers were returned and obtained refund. The aforesaid facts

and circumstances and oral and documentary evidence adduced

by the plaintiff show that the plaintiff had made arrangements to

obtain the sale deed. Ext.A8 produced by the plaintiff is an

encumbrance certificate which shows that the properties are

mortgaged to Rural Housing Co-operative Society, Vadavannur

for Rs.45,000/-. That document shows that the defendant had

not cleared the liabilities on the property before 1.5.1991. The

non-clearance of liabilities also show that the defendant was not

prepared to execute the sale deed in favour of the plaintiff. The

A.S.No.105 of 2000 – A

5

court below also relied on Ext.A2 pass book which shows that

Rs.50,500/- is in deposit as on 29.8.1991. The oral testimony of

PW1 and Exts.A1 to A9 are relied on by the court below to hold

that the plaintiff had performed his part of contract and he is

entitled to get the sale deed executed by the defendant. In the

said facts and circumstances, the contentions of the appellants

that the plaintiff is not entitled to a decree for specific

performance of the contract cannot stand. I fully agree with the

findings entered by the court below.

In the result, the appeal fails and accordingly, it is

dismissed with costs.

HARUN-UL-RASHID,
JUDGE.

bkn/-

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