The court affirmed the necessity of proof of payment in contracts while ordering specific performance, highlighting discretion in upholding an advance payment despite procedural flaws.

JUDGMENT :

(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

Being aggrieved by the judgment of dismissal in O.S.No.898/2008 by learned II-Additional Senior Civil Judge, Mysuru, dated 13.03.2012, the plaintiff is before this Court in appeal.

2. The factual matrix of the case is as below:

(a) The plaintiff contends that the defendant is the owner of the suit schedule property, which is a site bearing No.496, situated at railway layout, Bogadi-Mysuru measuring 9 mtrs East-West and 12.3 mtrs North-South. The defendant intended to dispose of the plaint schedule property to a willing purchaser and at that juncture, the plaintiff came in contact with the defendant resulting in an agreement whereby the plaintiff agreed to purchase the property for a price of Rs. 10,30,000/- free from encumbrances. The terms of the contract came to be reduced in writing on 05.01.2008 and the plaintiff had paid a sum of Rs. 9,90,000/- and the remaining sum of Rs. 40,000/- was to be paid at the time of the execution of the sale deed. It was contended that the period of contract was three months from the date of execution of the agreement and the defendant promised to keep the plaint schedule property free from encumbrances. The defendant handed over the copies of the documents relating to the title of the plaint schedule property to the custody of the plaintiff. The defendant also agreed to place the plaintiff in possession of the property at the time of the sale deed. It is contended that the plaintiff was always ready and willing to perform his part of the contract and defendant had sought some time to secure the documents specified under the contract.

(b) It was further contended that later, the defendant was not prepared to pay any heed to the request made by the plaintiff and therefore, he issued a legal notice on 06.04.2008 to the defendant. The said notice was replied by the son of the defendant contending that the property bearing No.153 situated at Nachanahalli Palya Mysuru was held by the plaintiff as Power of Attorney holder of one Nagesh Jois and M.B. Balaganapathy Bhat, the plaintiff had secured an agreement to sell the property and that, after purchasing the said property by the defendant, he had put up a compound and a small structure. Later, it was found that the property had been acquired by MUDA Authorities and the Authorities had demolished the compound wall and the structure causing huge loss to the defendant.

(c) In view of the said reply, the plaintiff issued a rejoinder notice to the defendant contending that the transaction in respect of the site bearing No.153 and the present suit property are distinct and separate and there was no connection by and between the two. It was replied by the plaintiff that the son of the defendant had approached the plaintiff and agreed to purchase the site bearing No.153 and therefore, the transactions being totally different and cause of actions being different, the defendant should not have put forth the said contention to deny the execution of the sale deed.

(d) When the defendant did not heed to the request of the plaintiff, the plaintiff was constrained to file this suit for specific performance of the agreement of sale. Therefore, the plaintiff prayed that the decree be passed directing the defendant to execute the sale deed in respect of the suit schedule property by receiving a sum of Rs. 40,000/- and a perpetual injunction be issued against the defendant from alienating the plaint schedule property to anybody else.

3. On service of the summons, the defendant appeared and filed the written statement. In the written statement, apart from denying the contents of the plaint, the defendant contended the following:

(a) The suit schedule property was purchased by her son D.S. Raghava out of his