IMPORTANT POINT
The court affirmed the plaintiff's entitlement to specific performance of the agreement of sale, emphasizing the defendant's failure to fulfill contractual obligations.

JUDGMENT :

Venuthurumalli Gopala Krishna Rao, J.

The appeal is filed by the 1st defendant in O.S.No.75 of 1993 on the file of Principal Senior Civil Judge’s Court, Visakhapatnam. The 1st respondent is the plaintiff and the 2nd respondent is the 2nd defendant in the said suit.

2. The parties will hereinafter be referred to as arrayed before the trial Court.

3. The brief averments in the plaint are as follows:

(a) It is pleaded that the 1st defendant is the husband of the 2nd defendant and he is the absolute owner of the plaint schedule property, having purchased the same from Visakhapatnam Urban Development Authority (VUDA) under a registered sale deed dated 12-8-1980. The 1st defendant agreed to sell the plaint schedule property to the plaintiff for a valuable consideration of Rs.4,14,000/- and executed a sale agreement after receiving advance amount of R.1,34,000/- on 18-7-1990. The 1st defendant received further advance of Rs.30,000/- from the plaintiff through a cheque dated 23-8-1990 but he did not endorse the payment on the agreement in spite of several requests made by the plaintiff.

(b) It is further pleaded that under the agreement, the 1st defendant has to vacate and put the plaintiff in possession of the schedule property on or before 01-10-1990 and thereafter the plaintiff has to take sale deed from the 1st defendant. The 1st defendant though received Rs.1,64,000/- by 01-10-1990 failed to put the plaintiff in possession of the schedule property on 01-10-1990 as agreed, therefore, he is liable to pay interest at 12% on Rs.1,64,000/- from 01-10-1990 till he executes a registered sale deed and put the plaintiff in possession of the property. The plaintiff got issued a legal notice on 29-01-1991 to the 1st defendant expressing her ready and willingness to perform her part of the contract and demanded the 1st defendant to perform his part of contract, for which the 1st defendant gave reply notice admitting the execution of sale agreement and receipt of Rs.1,34,000/- but denied receipt of Rs.30,000/- and further informed that his wife filed O.S.No.39 of 1992 on the file of II Additional Sub Court, Visakhapatnam, for declaration of title over the schedule property. The defendants collusively filed the said suit to harass the plaintiff. The plaintiff is always ready and willing to perform her part of contract. Hence, the suit.

4. The 1st defendant filed a written statement admitting execution of the sale agreement in favour of the plaintiff and receipt of advance amount of Rs.1,34,000/- but denied receipt of Rs.30,000/- by way of cheque on 23-8-1990 and also denied that he has agreed to deliver possession of the house on or before 01-10-1990. It is contended by the 1st defendant that the plaintiff has no funds to fulfil her part of the contract, time is essence of the contract and since the plaintiff has not performed her part of contract, she is not entitled for specific performance of agreement of sale.

5. The 1st defendant also filed additional written statement contending that the pleadings made by the plaintiff are not in accordance with Forms 47 and 48 of the Appendix of Civil Procedure Code. He further pleaded that the plaintiff has no funds to perform her part of the contract either at the time of agreement or at the time of institution of the suit, as such, the suit is liable to be dismissed.

6. The 2nd defendant filed a written statement contending that she is absolute owner of the suit schedule property as such she filed O.S.No.39 of 1992 for declaration of her title with regard to the suit schedule property. She further pleaded that the 1st defendant and the plaintiff colluded together and entered into an agreement of sale, which is illegal, void and unenforceable, as such, the suit is liable to be dismissed.

7. Based on the above pleadings, the following issues are settled for trial by the trial Court:

(1) Whether the 2nd defendant is the owneress of the suit schedule property and whether she is entitled to claim owner