JUDGMENT :

The appeal is directed against the judgment and decree dated 23.08.2005 passed by the learned II Additional Civil Judge (Senior Division), at Dharwad in O.S.No.95/1994. The suit of the plaintiff came to be decreed and the defendant was directed to execute the registered sale deed of the schedule property by receiving the balance consideration of Rs.2,23,000/-within three months from the said order.

2. In order to avoid confusion and overlapping, the parties are hereinafter referred to in accordance with their rank and status as stood before the trial Court.

3. This is defendant’s appeal.

4. The brief facts of the case as stated is that the defendant is the owner of the house bearing No.61/B measuring 2 guntas 6 annas situate at Saptapur, Dharwad. The plaintiff was in need of a residential accommodation at Dharwad and after mutual offer and acceptance, the defendant agreed to sell the schedule property for a cash consideration of Rs.2,76,000/-. The defendant received earnest money of Rs.45,000/-from the plaintiff on 27.11.1990. The balance sale consideration was agreed to be paid within a period of three months. Meanwhile, the defendant agreed that he would obtain necessary permission and clear all encumbrances on the schedule property. Thus, the gist of the sale agreement is that, it is dated 27.11.1990 for total cash consideration of Rs.2,76,000/-, advance amount is Rs.45,000/-and the balance payable is Rs.2,31,000/-. It is stated that subsequently, on 20.12.1991, the plaintiff paid another sum of Rs.8,000/-to the defendant as per Ex.P-13.

5. The learned trial Judge was accommodated with the oral and written evidence as under:

Plaintiff side : PW-1-Shyam Kumar Mrigeppa Horadi PW-2-Smt Kamala Hammigi of Dharwad Exs.P-1 to P-24 were marked.

Defendant side: DW-1 Shankarashetti of Dharwad. No documents were marked

6. The following issues were framed:

1. Whether the plaintiff prove that the defendant in terms of agreement of sale has handed over the possession of the suit house to the plaintiff on 27.11.1990?

2. Whether the defendant prove that as per the terms of agreement of sale, the plaintiff was to get the sale deed executed within the period of 3months from 27.11.1990?

3. If so, whether the defendant further prove that the plaintiff failed to specifically perform his part of the contract?

4. Whether time is the essence of the contract?

5. Whether the suit is not maintainable?

6. Whether the plaintiff is entitled for the reliefs claimed?

7. What order or decree?

Addl. Issue dated 4.6.05

1. Whether on the date of filing of the suit, the PA holder of the plff. had no authority to file the suit on behalf of the plaintiff?

Addl. Issue No.2

Whether PA holder of the plaintiff proves that he has been always ready and willing to perform his part of the contract on behalf of the plaintiff?

7. The substance of the claim of the plaintiff as stated are that he is entitled for specific performance of the contract dated 27.11.1990 in respect of the suit schedule property for a consideration of Rs.2,76,000/-and he has already paid Rs.45,000/-as advance and Rs.8,000/-subsequently. And the remaining amount he is ready and willing but the defendant, on one or the other pretext has not obtained permission. Meanwhile, it is contended that there was encumbrance on the schedule property in the form of loan as reflected from Ex.P-9. The learned trial Judge found the execution of the agreement is proved. Basically, the issuance of the notice by the defendant and also reply by the plaintiff go to show that factum of agreement is not disputed.

8. Learned Counsel. Sri. R.V. Itagi for the appellant/defendant would submit that the trial Court failed to understand the broad scope of Contract of Specific Performance and the circumstances of time playing his role as the Essence of Contract. Other documents go to show that plaintiff never, for a moment, backtracked from the agreement. Incidentally, the defendant also contends that the documents filed themselves prov