Point of Law:Decree of suit for specific performance of Agreement - Refund in absence of prayer - Bar under Section 22(2) is against the respondent/plaintiff. But such a bar would not operate against Court and curtail its power under Order XLI Rule 33 of CPC

JUDGMENT :

Sachin Shankar Magadum, J.

The captioned appeal is filed by the defendant questioning the judgment and decree passed by the Court of first instance in O.S.No.814/2007, wherein the suit of the respondent/plaintiff is decreed directing the present appellant/defendant to execute registered sale deed in respect of the suit schedule property.

2. The facts leading to the case are as under:

The respondent/plaintiff is a businessman dealing with Silk Sarees and other allied fabrics both as a wholesale as well as a retail dealer. The respondent/plaintiff has showrooms in Bengaluru City, one at Chennai and one at Kanchipuram. The average turnover of respondent/plaintiff is about Rs.10,00,000/-per day. The respondent/plaintiff is having wholesale and retail showrooms at Arcot Srinivasachar street, Bengaluru. The adjacent building bearing No.58, New Nos.14 and 15 is the subject matter of the suit and the same is owned by the appellant/defendant. The suit schedule property consists of basement, ground, first and second floors. The respondent/plaintiff and the appellant/defendant are known to each other and their relationship is very cordial. The appellant/defendant's son namely, Sunil approached the respondent/plaintiff and offered to sell the suit schedule property and accordingly, sale price was fixed at Rs.1,98,00,000/-. As a token advance, the respondent/plaintiff paid a sum of Rs.2,00,000/-. On 24.04.2006, the appellant/defendant executed an agreement and in the said agreement, the stipulated time to get the sale deed executed was fixed at three months. The respondent/plaintiff in fact wanted the sale deed to be executed but, however, the appellant/defendant insisted that she needs three months time. At the time of executing the agreement, the appellant/defendant further insisted that three months time is not enough and insisted for five months period. The appellant/defendant insisted for five months since a large quantity of stock was yet to be disposed off and the same would be cleared only during reopening of schools. The respondent/plaintiff in terms of the agreement paid further advance amount of Rs.8,01,000/-by issuing a cheque drawn on Bank of UTI. The respondent/plaintiff, in all, paid Rs.10,01,000/-and it was agreed that sale transaction would be completed within a period of five months.

The respondent/plaintiff though was ready to pay the balance sale consideration, the appellant/defendant went on postponing the same. It was stated by appellant/defendant that her son is finding it difficult to exhaust the sale of stock and therefore, she kept on requesting to grant further time.

The respondent/plaintiff having regard to the relationship accepted for extension of time. It was only on 08.11.2006, the respondent/plaintiff was compelled to write a letter to the appellant/defendant calling upon the appellant/defendant to execute sale deed by receiving the balance sale consideration. The appellant/defendant issued a legal notice on 15.11.2006 intimating the termination of agreement of sale. The respondent/plaintiff issued a reply to this notice. Inspite of legal notice/letter, the appellant/defendant did not come forward to perform her part of contract and as such, the respondent/plaintiff was compelled to file the suit for specific performance of contract in O.S.No.814/2007.

The appellant/defendant, on receipt of summons, contested the proceedings by filing the written statement. The appellant/defendant stoutly denied the entire averments made in the plaint. The appellant/defendant specifically contended that time is the essence of contract. The appellant/defendant specifically contended in the written statement that respondent/plaintiff was not ready and willing to complete the sale transaction within the stipulated period of five months. The appellant/defendant also specifically contended that as per clause (6) of the agreement, in the event, the respondent/plaintiff fails to perform his part of contract within two months,