The Court exercised its discretion under Sec. 20 of the Specific Relief Act to set aside the judgment and directed the defendant to return the advance amount with interest.

JUDGMENT/ORDER

1. The present appeal is directed against the judgment and decree passed in O.S.No.9543/1997 on the file of XI Addl.City Civil Judge, Bengaluru, dated 27thday of July 2005, wherein, suit of the plaintiff filed for specific performance was decreed.

2. The parties are referred to as plaintiff and defendant for the sake of convenience, as per their original ranking before the Trial Court.

3. The brief facts which are necessary for disposal of the appeal are as under: Plaintiff filed the suit against the defendant with a prayer of specific performance and to direct the defendant to execute a registered sale deed in his favour conveying the suit schedule property by receiving the balance sale consideration of Rs.23,000.00 in pursuance of the agreement of sale dtd. 10/8/1994 and 14/6/1994 with costs.

4. Plaintiff has contended that defendant is the absolute owner in possession of the site No.101 demarcated in Survey No.50 of Saneguruvanahalli Village, Yeshwantpur Hobli, III stage, West of Chord Road, Bangalore, measuring: East to West - 30 feet and North to South - 40 feet allotted by the Gayathri Nagar House Building Co-operative Society Ltd., and bounded by East by - Site No. 102; West by - Site No. 100; North by -Site No.68 and South By - Road, (hereinafter referred to as 'suit property').

5. According to plaintiff, defendant has to execute a registered sale deed in his favour conveying the suit property by receiving the balance sale consideration in a sum of Rs.23,000.00.

6. Plaintiff further contended that in order to meet the legal necessities and domestic commitments, defendant intends to sell the suit site to the plaintiff for a valuable consideration of Rs.68,000.00. According to the plaintiff, he has paid a sum of Rs.10,000.00 as advance sale consideration in the presence of witnesses on the date of agreement of sale i.e., 10/8/1994. One of the conditions incorporated in the said sale agreement is that an amount of Rs.5,000.00 out of the total sale consideration was agreed to be paid to the defendant by the plaintiff soon after expiry of the lease period of the suit property.

Thereafter, plaintiff also paid further sum of Rs.10,000.00 on 14/6/1995, Rs.10,000.00 on 19/6/1995 and Rs.15,000.00 on 17/9/1995. Thus, total advance amount received by the defendant in respect of the sale agreement is sum of Rs.45,000.00 from the plaintiff. Defendant inducted the plaintiff into the physical possession of the property as part performance of the contract.

7. Plaintiff further contended that even though substantial amount of the sale consideration has been paid as the advance amount, defendant did not get ready to execute the registered sale deed in his favour. He further contended that plaintiff was always ready to get the sale deed registered. But, defendant went on postponing the execution of the sale deed on one reason or the other, which necessitated the plaintiff to issue a legal notice on 18/1/1996. In the said legal notice plaintiff contended that he was always ready and willing to perform his portion of the contract by paying the remaining amount of Rs.23,000.00 towards the sale consideration and demanded for execution of sale deed. The notice was served on the defendant, but defendant sent an untenable reply on 2/3/1996 denying the very sale transaction. It is further contended by the plaintiff that in order to avoid the execution of the sale in favour of the plaintiff, defendant tried to alienate the schedule property to third parties which resulted in filing the suit by the plaintiff.

8. Upon receipt of the suit summons, defendant entered appearance and filed written statement denying the plaint averments in toto. However, defendant admitted that he is the absolute owner of the schedule property as the same was allotted to him by Gayathrinagar House Building Co-operative Society, Bengaluru and a sale deed came to be executed in his favour. Defendant denied other plaint averments, but admitted the receipt of le