IMPORTANT POINT
Agreement to sell – In case agreement was terminated by seller, there should be prayer for declaration that termination of agreement for sale is bad in law, or that it does not bind plaintiff and in absence of such a prayer, suit filed for specific performance will not be maintainable.

JUDGMENT

The defendants 1 and 2 in OS. No.194 of 2007 on the file of II Additional Sub Judge, Kozhikode are the appellants. (For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court).

2. The plaintiff filed the above suit for specific performance. Exhibit A1 is the sale agreement entered into between the plaintiff and the defendants on 15.1.2007, whereby the defendants agreed to sell the schedule property consisting of 11.77 cents, for a total consideration of Rs.10.75 Lakhs. On the date of agreement itself, a sum of Rs.2,00,000/- was paid as advance. As per the terms of Exhibit A1, a further sum of Rs.3,00,000/- was to be paid by the plaintiff to the defendants within a period of one month and the entire balance amount is to be paid and the sale deed also is to be executed within 3 months. Accordingly, the plaintiff paid Rs.2,75,000/- on 29.1.2007, Rs.25,000/- on 14.2.2007 and another Rs.75,000/- on 27.3.2007. The defendants admitted receipt of a total sum of Rs.5,75,000/- from the plaintiff by 27.3.2007. At the time of execution of Exhibit A1, the property was mortgaged to a bank. As per the terms of the agreement, the defendants had to redeem the mortgage also before the registration of sale deed. According to the plaintiff, though he was always ready and willing to perform his part of the contract, due to the default of the defendants, the sale deed could not be executed. On the other hand, according to the defendants, the breach was committed by the plaintiff. It was in the above context, the plaintiff filed this suit for specific performance, on 29.5.2007.

3. The trial court framed seven issues. The evidence in the case consists of the oral testimonies of PW1, DW1 and Exhibits A1 to A27 and B1 to B8 series. After evaluating the evidence on record the trial court decreed the suit and directed the defendants to execute a sale deed in performance of Exhibit A1. Aggrieved by the above judgment and decree of the trial court, the defendants preferred this appeal.

4. Now, the points that arise for consideration are the following:—

1) Whether the trial court was justified in granting the prayer for specific performance, in the absence of a prayer for declaration that the termination of agreement is not binding on him?

2) Whether the plaintiff was always ready and willing to perform his part of the contract?

3) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal?

5. Heard Sri. M.V. Bose, the learned counsel for the appellants and Smt. Meena A, the learned counsel for the respondent/plaintiff.

6. The learned counsel for the appellants would argue that in this case time was essence of the contract and within the period stipulated in Exhibit A1, the plaintiff was not ready and willing to perform his part of the contract. He would further argue that on the expiry of the period of Exhibit A1 on 15.4.2007, the contract expired and it was terminated and as such without a prayer for declaration that the termination of the agreement is illegal or not binding on him, a decree for specific performance cannot be granted. He would also argue that, from the pleading and evidence, it is not revealed that the plaintiff was ready with the balance sale consideration of Rs.5,00,000/- within the period of validity of Exhibit A1 agreement.

7. On the other hand, the learned counsel for the respondent/plaintiff would argue that, by the conduct of the parties, they have extended the time stipulated in Exhibit A1 and as such the time is not the essence of the contract, in the facts of this case. Further, the learned counsel would argue that all along the plaintiff was ready and willing to perform his part of the contract and as informed by the defendants, he went to the Sub Registry with the balance sale consideration, after purchasing the stamp paper and preparing the sale deed in the stamp paper and the contrac