IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 AS.No. 105 of 2000(A) --------------------- AGAINST THE DECREE AND JUDGMENT DATED 30.10.1999 IN O.S.NO.430/1991 OF SUB COURT, PALAKKAD. APPELLANTS/SUPPLE. DEFENDANTS 3 TO 9: ------------------------------------------------ 1. SALUDHEEN, S/O.LATE YAKOOB RAWTHAR, KAMBRATHCHALLA, MUTHALAMADA, CHITTUR TALUK, PALAKKAD DISTRICT. 2. ALAVUDHEEN, S/O.LATE YAKOB RAWTHAR, -DO- -DO- -DO- 3. HAMEED, S/O.LATE YAKOOB RAWTHAR, -DO- -DO- -DO- 4. RAFIYA, D/O.LATE YAKOOB RAWTHAR, -DO- -DO- -DO- 5. SAHARBANU BEEGUM, D/O.LATE YAKOOB RAWTHAR, -DO- -DO- -DO- 6. SHEIK MUJEEB RAHIMAN, S/O. LATE YAKOOB RAWTHAR, -DO- -DO- -DO- 7. SHAMSUDHEEN, S/O. LATE YAKOOB RAWTHAR, -DO- -DO- -DO- BY ADV. MR.SAJAN VARGHEESE K. RESPONDENTS/PLAINTIFF AND SUPPLE.DEFENDANT NO.2: --------------------------------------------------------------- 1. SAHAVUDHEEN, S/O.SADAR RAWTHAR, KUNNATHUMETTIL, POTHAMPADAM, MUTHALAMADA, CHITTUR TALUK, PALAKKAD 2. SHERFUDHEEN, S/O.HANEEFA RAWTHAR, KAMBRATH CHALLA, MUTHALAMADA, CHITTUR TALUK, PALAKKAD DISTRICT. ADV. MR.V.CHITAMBARESH FOR R1 MR.S.KRISHNA PRASAD THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 105 of 2000(A) ORDER ON C.M.P.NO.940/2000 IN A.S.NO.105/2000 DISMISSED. 16.3.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. 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/-