The court held that dismissal of the suit for specific performance was erroneous due to failure to consider the forfeiture clause in the agreement, ultimately allowing for the forfeiture of advance payment.

JUDGMENT :

V. SRISHANANDA, J.

Heard Sri B.S. Raghu Prasad, learned counsel for the appellant and Sri M. Shivaprakash, learned counsel for the respondent.

2. Unsuccessful plaintiff is the appellant challenging the dismissal of the suit in O.S.No.2253/1996 in this appeal.

3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:

3.1. Plaintiff filed a suit against the defendant with the following prayer in respect of the following property (hereinafter referred to as ‘suit property’):

“WHEREFORE the plaintiff prays for a judgment and decree to declare that the agreement of sale dated 12.2.1990 entered into between the plaintiff and defendant is not binding on the plaintiff, and for permanent injunction against the defendant restraining the defendant, his agent followers, henchmen, workmen or anybody claiming through or under him from interfering with the peaceful possession and enjoyment of the plaintiff in respect of the suit Schedule Property and for an order of permanent injunction restraining him from digging trenches and putting up construction on the suit schedule property and for costs of the suit and for such other relief or reliefs as this Hon'ble Court may deem fit to grant in the circumstances of the case in the interest of justice.

Schedule

All that piece and parcel of dry land situated in S.No.19/1, measuring 37 ½ guntas of Yelachenahalli Village, Uttarahalli Hobli, Bangalore south Taluk, bounded on the

East by Ramaiah Reddy's land,

West by Shanbog Inamti Land,

South by Narayanappa's land and

North by Muniamma's land.”

4. Contention of the plaintiff in the nutshell before the trial Court in the plaint is that plaintiff is the absolute owner of the land, measuring 37 ½ guntas in Sy.No.19/1, situated at Yalachenahalli Village, Uttarahalli Hobli, Bengaluru South Taluk. She had purchased the same from Smt. Narayanamma and others on 16.06.1972 under a registered sale deed. Ever since then, plaintiff was in possession and enjoyment of the suit property by mutating the revenue entries in her name.

5. Defendant approached the plaintiff to purchase suit land for a total consideration of Rs.5,50,000/- and an agreement came to be executed on 04.07.1989. Under the agreement, defendant agreed to pay additional advance of Rs.1,75,000/- within a period of 75 days from the said agreement.

6. There was yet another agreement on 19.02.1990 as the earlier agreement could not be enforced between the parties. Under the said agreement, property was agreed to be sold in a sum of Rs.6,10,000/- as against Rs.5,50,000/- and advance amount of Rs.1,00,000/- paid under the agreement dated 04.07.1989 was considered as the consideration in respect of the fresh agreement dated 19.02.1990.

7. In addition to the same, sum of Rs.1,00,000/- was paid through cheque by the defendant to the plaintiff on 19.02.1990. Thus, the total advance amount towards the fresh agreement dated 19.02.1990 is in a sum of Rs.2,00,000/- and defendant had agreed to pay balance sale consideration within 70 days from the date of fresh agreement.

8. When the matter stood thus, on the date of agreement of sale, a suit in O.S.No.18/1988 was filed by V.Manjunath Reddy and others against the defendants including the plaintiff and in the said suit, there was an order of temporary injunction restraining the plaintiff from alienating the suit property.

9. B