The dominant intention of both the vendor and the purchaser at the time the suit agreement was concluded was the purchase of the property and not the payment of the liquidated damages mentioned for breach of contract.

CHANDRAKANTHARAJ J.

( 1 ) THIS is a defendant's appeal against the judgment and decree dated 8-4-1986 passed by the IV Additional City Civil judge, Bangalore, in 0. S. No. 7345/ 1980.

( 2 ) THE respondent has entered caveat and is represented by a counsel.

( 3 ) THE aforementioned suit Was filed seeking specific performance by the cefendant-appellant in respect of the suit schedule property which was contracted to be sold by the defendant for a consideration of Rs. 1,11,000/ -. After having received advance of Rs. 76,000/- an agreement of sale dated 23-6-1979 was executed. Plaintiff was willing to pe form at all times his part of the contract. However, the defendant went back on his undertaking to convey the property to him after receipt of the balance of consideration and refused to execute the sale deed.

( 4 ) WHILE resisting the suit claim, defendant admitted the execution of the said agreement of sale. He also admitted the receipt of a total sum of Rs. 76,000/- bv about end of October 1979 under the suit sale agreement. Certain averments made bv the plaintiff in regard to the steps taken by the defendant to perform his part of the contract were denied by the defendant. He however pleaded that he was very old, deaf, poor in eye sight and also weak minded and in a momsnt of confusion had signed the application made to the Competent Authority under the Urban Land Ceiling Act. He also pleaded that the site was allotted to his wife Smt. Jayamma and that she had purchased the site paying her own money and therefore the property standing on that site also belonged to her. Even the amounts borrowed for constructing the house was discharged by her. In that event the appellant-defendant was not competent to sell the property belonging to his wife. He further took shelter in his written statement under clause 12 of the Agreement of sale which provided for payment of Rs. 5000/- by way of penalty on liquidated damages for non-performance of the contract by either party. He therefore prayed that the suit may be dismissed. On the above pleadings, the Court below framed as many as 11 issues. They are as follows :-"1) Whether the defendant proves that the agreement took place between the plaintiff's husband and himself as contended in para-1 of the written statement ? 2) Whether the defendant proves that he was coerced to sign the application dated 11-10-1979 for conversion as contended in paras-1 and 2 of the written statement ? 3) Whether the permission dated 6-11-79 is void as contended in para-2 of the written statement ? 4) Whether the plaintiff proves that he was ready to pay the balance of consideration and do his part of the contract ? 5) Whether the defendant proves that the plaintiff knew that the defendent had no right, title or interest over the suit property on the date of the agreement ? 6) Whether the defendant is entitled to insist upon the alternative clause of liquidated damages of Rs. 5000/- ? 7) Is the plaintiff's husband a necessary party to the suit, if so, is the suit bad ? 8) Whether the suit is premature as contended in para-6 of the written statement ? 9) Is the plaintiff entitled to specific performance of the agreement ? 10) To what order and decree ? 11) Whether the defendant proves hardship pleaded in the written-statement if the suit is decreed for specific performance of suit agreement and this is a fit case not to exercise the discretion of the Court in favour of granting the relief to plaintiff ? it is needless to say that the Court found in favour of the plaintiff on all issues and directed that the defendant should execute the Sale Deed and made consequantial directions to which we will refer to a little later. "

( 5 ) IN this Court Mr. K. J. Shetty. counsel for the appellant-defendant has urged that the plaintiff-respondent had not discharged the onus on him to prove that clause 12 of the suit agreement of sale was not intended to be acted upon. Therefore, in the absence of that evidence required to be a

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