The court affirmed that non-compliance by vendors with obligations in a contract for sale excuses the vendee from performing their part, including deposit of balance consideration, thereby affecting the right to rescission under the Specific Relief Act.

JUDGMENT

K.HARILAL,J

The appellant is the first plaintiff in O.S No.66 of 2007 of the Sub Court, Kozhikode and the respondents 1 and 2 are the defendants and the 3^rd respondent herein is the second plaintiff in the said suit. (The parties are referred to as in the original suit). The said suit was one for specific performance of an agreement for sale of an immovable property or in the alternative, for the return of money paid to the defendants as advance. The prayer for specific performance was declined and allowed the alternative relief by granting a decree for return of a sum of Rs.75lakhs paid as advance towards the sale consideration. Aggrieved by the denial of specific performance, the plaintiffs preferred RFA No.819 of 2008 before this Court and this Court allowed the appeal and granted a decree for specific performance. As per the decree, the defendants were directed to measure the property and satisfy the actual extent of the property available for sale to the plaintiffs within one month from the date of judgment passed by this Court and the plaintiffs were directed to deposit the balance consideration before the court below within one week from the date of measurement. Further, the defendants were directed to execute sale deed within one month from the date of receipt of notice as to the deposit. But the defendants have not taken any steps to measure the property as directed by the decree. An Advocate Commissioner was appointed on the application filed by the plaintiffs and the Commissioner measured the property with the assistance of a surveyor on the basis of a survey plan. But the defendants have not co-operated with the Commissioner and they were not present at the time of measurement. The Commissioner submitted a report with a plan stating that the total extent of property is 77.64 cents. Aggrieved by the measurement of the property in the absence of the defendants, the plaintiffs filed an application to remit the commission report and plan to the Commissioner for measuring the property again, on the basis of the title deed and sought for a direction to the defendants to be present at the time of measurement and satisfy the plaintiffs as to the extent of property available for sale and actual boundaries. The court below allowed the said application and after measuring the property again, in the presence of the defendants, the Commissioner filed a second report with a plan stating that the actual extent of the property is 77.11 cents only.

2. Thereafter, the defendants filed O.P.(C) No.1855/2015 before this Court, challenging the order remitting the Commission report to the Commissioner and this Court set aside the said report and directed the court below to hear the application seeking the order to remit the commission report and pass order afresh. In the meantime, the second report was filed before the court below. So, the application to remit the commission report was also closed. The defendants have filed I.A No.3606/2014 on 23.09.2014 seeking an order rescinding the contract for sale under Section 28 of the Specific Relief Act (herein after referred to as 'the Act'). Subsequently, the first plaintiff filed I.A No.2776/2016 for permitting him to deposit the entire balance consideration in court and getting the time re-fixed to deposit the balance consideration. The court below herd both the aforesaid applications together and allowed I.A No.3606/2014 by granting an order rescinding the contract for sale and dismissed I.A No.2776/2016 seeking re-fixation of time to deposit balance consideration. But the court below directed the defendants to return a sum of Rs.75lakhs with interest, which was received by them as advance, to the plaintiffs. The legality and correctness of the findings, whereby I.A No.3606/2014 stands allowed and I.A No.2776/2016 stands dismissed are assailed in this appeal.

3. Heard Sri.Krishnanunni, the learned Senior counsel appearing for the appellant/1^st plaintiff, Sri.P.B.Krishnan, the learned