Specific performance of contract is enforceable when a valid agreement exists, evidenced by payment and parties' acknowledgment, despite claims of it being merely a power of attorney.

JUDGMENT :

E.S.INDIRESH, J.

1. This appeal is filed by the plaintiff challenging the judgment and decree dated 16.10.2017 passed in RA.No.237/2013 on the file of the I Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru, dismissing the appeal and confirming the judgment and decree dated 24.08.2013 passed in O.S.No.232/2005 on the file of the I Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, dismissing the suit of the plaintiff.

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2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

3. The plaint averments are that, the defendant is the owner of the suit schedule property and as such, entered into an Agreement of Sale on 11.08.2003, agreeing to sell the suit schedule property in favour of the plaintiff for total consideration of Rs.96,000/-. Pursuant to the same, plaintiff has paid advance amount of Rs.50,000/- and thereafter, paid Rs.20,000/- on 22.10.2003 by way of cash and Rs.10,000/- through cheque on 23.10.2003. It is the case of the plaintiff that, plaintiff has paid Rs.80,000/- towards sale consideration to the defendant and agreeing to pay the balance consideration of Rs.16,000/- at the time of execution of the registered Sale Deed. It is also stated in the Agreement of Sale that, the entire transaction has to be completed within three months from the date of the execution of the sale agreement. It is further averred in the plaint that, the plaintiff was ready and willing to perform his obligation under the Agreement of Sale, however, the defendant had issued legal notice dated 07.07.2004, intimating the plaintiff that the said agreement dated 11.08.2003 is a general power of attorney, and not a sale agreement. Thereafter, the plaintiff issued a reply dated 10.07.2004, denying the averments in the notice dated 07.07.2004. Hence, the plaintiff has filed O.S.No.232/2005, seeking relief of specific performance of contract.

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4. After service of summons, defendant entered appearance and has filed detailed written statement denying the plaint averments and contended that, the defendant was in need of money and as such offered to sell the suit schedule property. It is also stated that, the cousin of the defendant - Muthuraman, brought the plaintiff for sale transaction and in this regard, the plaintiff and said Muthuraman assured the defendant that, they will get a buyer for good price and accordingly, the defendant has agreed for sale of schedule property and executed the general power of attorney dated 11.08.2003 with the plaintiff and same cannot be construed as an agreement of sale. It is further stated in the written statement that the plaintiff has issued cheque dated 17.10.2003 for a sum of Rs.30,000/- which came to be dishonoured and thereafter, the plaintiff has paid Rs.10,000/- through cheque and accordingly, the defendant denied the averment of payment of Rs.50,000/- and Rs.20,000/- through cash. Hence, the defendant sought for dismissal of the suit.

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5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. In order to establish their case, plaintiff got himself examined as P.W.1 and got examined one more witness as P.W.2 and got marked nine documents as Exs.P1 to P9. On the other hand, defendant examined herself as D.W.1 and produced two documents as Exs.D1 and D2.

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6. The Trial Court, after considering the material on record, by its judgment and decree dated 24.08.2013, dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in R.A.No.237/2013 on the file of the First Appellate Court. The said appeal was resisted by the defendant. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 16.10.2017, dismissed the appeal, consequently, confirmed the Judgment and Decree passed by the Trial Court in O.S.No.232/2005.

7. Being aggrieved by the judgment and decree pa