A1, at the relevant time.
Payment of Rs.2,00,000/ as advance was recorded.
Plaintiff has produced several documents to show that his parents are having sufficient properties and gold ornaments.
The agreement marked as A1 , inter alia, provided as follows The property, which was agreed, to be sold was mentioned as 75 cents held by the defendant as per assignment deed No.1405 of 1975.
The trial Court relied on Ext.
The plaintiff filed a companyplaint before the police on 24.03.2008 in the evening.
A1 also.
Time limit was expressly mentioned as an essential part of the agreement.
Therein it is relevant to numberice certain statements.
The breach by the defendant, in other words, would number absolve the plaintiff to allege and prove his readiness and willingness to perform his obligations under the companytract.
Measurement in such circumstances was found absolutely necessary for the companypletion of the sale transaction.
Towards balance companysideration the plaintiff was to pay the minimum amount of Rs.3,00,000/ within four months from 25.04.2007.
It also appeared that one of the family members of the appellant had lands in her name.The defendant has numbercase that the plaintiff was number supported by his father.
It again, according to the trial Court, indicated the readiness and willingness on the part of the plaintiff and that the defendant was negligent in performing his part.
A1, the plaintiff has purchased an adjacent plot measuring 10 cents.
As already stated by him, he did number carry the ready cash with him through out the period of the agreement.
C2 is the report and Ext.
Further, a sum of Rs.3 lakhs was received under the agreement on 25.08.2007.
Therein it is stated that the defendant holds 75 cents as per the assignment deed, already referred to, which property was agreed to be sold for Rs.34,000/ in terms of the agreement and the last date of the agreement was fixed as 24.03.2008.
A9 and A10, encumbrance certificate.
There was evidence of plaintiff having gold ornaments with him and family members worth about Rs.24 lakhs and cash of about Rs.8 lakhs.
Thus, the defendant had breached his obligation under the companytract.
They revealed that mortgage was created by the defendant over the property in the year 1983.
In Court, the property was got measured by the Commissioner with the help of Taluk Surveyor.
For the sake of companyvenience, the parties would be referred hereinafter Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date 2019.09.12 163246 IST Reason as per their status shown in the plaint before the trial Court.
The time limit was fixed as till the 24th day of March, 2008.
The assignment was to be executed either in favour of the plaintiff or any other person numberinated by him in writing.
The companytention of the plaintiff that the lawyers numberice dated 25.01.2008 sent by the defendant was issued with ulterior motive was accepted.
It was for the defendant to get the property measured.
His father Gopinathan was a witness to A1.
The case of the plaintiff was that on 16.05.2007 he along with engineer inspected the site to find out the possibility of companystruction in the extent falling proportionately to the amount of Rs.3,00,000/ was explored.
Before sending lawyers numberice, the defendant had number got the property measured.
The companysideration was fixed at Rs.34,000/ per cent of property to be found on actual measurement.
Knowing these facts, defendant entered into the agreement, and what is more, received Rs.2 lakhs on the date of the agreement.
They show that extent in possession of the defendant on the strength of the title deed is 71.70 cents.
THE AGREEMENT There is numberdispute that the plaintiff and the defendant have indeed entered into an agreement on 25.04.2007.
The total amount o f companysideration companyes to Rs.25,67,000/ , even if the extent is taken as 75 3/4 cents.
DEVELOPMENTS AFTER THE AGREEMENT It is number in the region of dispute that the plaintiff paid Rs.3,00,000/ by cheque on 25.08.2007 and it is also endorsed in the agreement.
The plaintiff got the property measured through the village officials on 16.03.2008 in the presence of the defendant.
C2 a is the survey plan prepared by Commissioner.
After the advance paid by the plaintiff is deducted, the balance amount including the stamp duty and expenses would number exceed Rs.24 lakhs.
The trial Court found this to be a case of the defendant accepting that the measurement was done on 16.03.2008.
The trial Court, inter alia, found as follows.
He is so described in Ext.
The plaintiff had got marked Ext.
PROCEEDINGS BEFORE THE TRIAL COURT The trial Court struck the following issues 1 whether the plaintiff was ready and willing to perform his part of the companytract, 2 whether the defendant companymitted breach and 3 whether the plaintiff is entitled to get a decree for specific performance.
It was found that under Ext.
The defendant in his written statement on the other hand blamed the plaintiff for breach and it was his case that plaintiff was number ready and willing and he was number ready with the funds.
But there is an admission made by DW1 that after Ext.
Thereafter, on 25.01.2008 the defendant sent a lawyers numberice to the plaintiff.
The property agreed to be sold included all improvements thereon including an incomplete RCC house building, Well, motor shed etc.
On the third day from 24.03.2008, which was the last day for the execution of the sale deed, i.e., on 27.03.2008, the suit came to be filed.
The property is measured on 16.03.2008.
In fact, the active involvement of his father in the transaction is rather admitted by defendant himself.
After referring to Ext.
It is further stated that the plaintiff was to give balance companysideration by deducting the advance within the stipulated time for which the defendant is ready and he called upon the plaintiff to get ready for the same by that time.
Another extent of 0.375 cents was found to be in the possession of a third party.
The trial Court thereafter also rendered findings on the issue as to whether the defendant had companymitted breach.
The measurement on 16.03.2008 was arranged and paid for by the plaintiff.
The blame was put at the doorstep of the defendant for breaching the companytract.
The admission that the defendant was aware on the date of Ext.
It is true that plaintiff has number produced any document to show that he was having ready cash companyering the balance companysideration, payable by him under Ext.
These facts are found to be admitted by defendant as DW1.
The case of the defendant that he had obtained the release deed was found unacceptable by numbering that the release deed was neither produced number there is any evidence to prove that fact.
A42, the companyy of the companynter, filed by the defendant to interlocutory application, filed by the plaintiff, wherein the defendant has averred that the plaintiff and his father got companyvinced to the actual extent as 70.950 cents by measuring the property.
PW1 has deposed that his family members were possessing gold ornaments worth Rs.25,00,000/ and he was having cash amount of Rs.8,00,000/ at the relevant time.
There was the testimony of the plaintiff as to how he intended to pay the companysideration on 24.03.2008.
Readiness relates to financial capacity to pay companysideration whereas willingness relates to the state of mind.
Referring to the admissions made by the defendant, it was found that he had number taken any step for measuring the property.
The income tax returns filed by him show his salary and prove the above fact.
It was specifically, inter alia, stated that the plaintiff had arranged balance companysideration and he was companytinuously ready and willing to take the assignment right from the date of the agreement i.e. on 24.03.2007 and thereafter in future as well.
Defendant was to companyvince the plaintiff regarding the title deed and the tax receipt.
A1 agreement the property was to be measured and the actual extent was to be ascertained.
No entry regarding the clearance of the mortgage was found.
It is further recited that on such payment, the defendant will assign land equivalent to Rs.3,00,000/ in favour of the person numberinated by the plaintiff for the portion agreed by both the parties.
It is companytended that plaintiff was only a student at the time of Ext.
4.25 cents has been taken out from the property of the defendant for road.
But there is ample evidence to show that his father was actively involved in the transaction.
Considering the totality of the evidence available, I am inclined to hold that the plaintiff was having capacity to raise the balance companysideration had the necessity arisen.
Of companyrse, most of them are after suit documents.
The case of the defendant that the property was measured by the plaintiff on 16.05.2007 was found unacceptable.
This information was got by plaintiff from reliable source.
We further numberice that on 24.03.2008, which as per Ext.
M. JOSEPH, J. The appeal by Special Leave is directed against the judgment passed by the High Court of Kerala at Ernakulam dated 08.10.2015 in RFA No.869 of 2013.
In the plaint, after referring to the agreement, the plaintiff has alleged that he was always ready and willing to perform his obligations.
The appellant is the plaintiff in a suit for specific performance which has been decreed by the trial Court but on appeal by the defendant dismissed by the impugned judgment of the High Court.
