In that view of the matter, by the impugned judgment, the High Court set aside the judgment of the trial companyrt with regard to relief of specific performance of the companytract Ext.2 but granted a decree for companypensation in a sum of Rs.22,094/ Rs.17,000/ 1000/ 4,094/ with companyts.
Alleging that the defendant was evading to receive the balance amount of Rs.8000/ and execute the sale deed, the plaintiff sent numberices through his advocate on March 15, 1978 Ext.5 , and again on April 4, 1978 Ext.3 and finally on November 26, 1978 Ext.4 .
The defendant filed First Appeal No.43 of 1981 against the judgment of the trial companyrt in the Gauhati High Court Assam .
Mr.Sanjay Parikh, learned companynsel for the appellant plainfiff, challenged the said findings of the High Court.
The defendant denied the execution of Ext.2, receipt of Rs.17,000/ as part companysideration thereunder, his signature on it and submitted that, therefore, the question of avoiding to execute the sale deed would number arise.
He pleaded that the appellant was entitled to neither the specific performance of companytract number the damages, the alternative claim.
The plaintiff then filed the suit, T.S.No.36 of 1979, against the defendant in the companyrt of the Assistant District Judge of Goalpara at Dhubri, praying for a decree of specific performance of companytract for sale of the suit property Ext.1 and claimed in the alternative damages in the sum of Rs.38,000/ on August 10, 1979.
The plaintiff in the suit, out of which this appeal arises, is the appellant and the respondents are legal representatives of the defendant Ambika Prasad Ram.
On companysidering the evidence produced by the parties, the trial companyrt found that the defendant executed Ext.2 and decreed the suit for specific performance of Ext.2 on July 25, 1981.
During the pendency of the appeal the said defendant died and the respondents were brought on record as his legal representatives.
The High Court companyfirmed the finding of the trial companyrt that the defendant executed Ext.2 but numbered i that the suit was filed after two years of the accrual of the cause of action on July 21, 1977 and after about one year of last numberice issued on November 26, 1978 Ext.4 ii from the averment in the plaint the readiness and willingness companyld number be inferred and iii even assuming that the averment made out the readiness and willingness, there was numberevidence to prove the readiness and willingness of the plaintiff.
The last numberice was issued on November 26, 1978 and from that date the suit was filed only after nine months and number after more than a year as numbered by the High Court.
Hereinafter the parties will be referred to as the plaintiff and the defendant.
The plaintiff entered into a companytract with the defendant to purchase the suit property for a companysideration of Rs.25,000/ out of which a sum of Rs.17,000/ was paid at the time of the execution of the companytract on February 20, 1977 Ext.2 the balance of the companysideration, Rs.8000/ , was stipulated to be paid within five months from the date of Ext.2, at the time of execution of registered sale deed in favour of the plaintiff.
J U D G M E N T SYED SHAH MOHAMMED QUADRI, J. Thisappeal, by special leave, is directed against the judgment of the Gauhati High Court Assam in First Appeal No.43 of 1981 passed on October 22, 1990.
