Decided on November 29,2003

BIPIN O.NAIR Respondents


- (1.) This appeal is filed by the additional second defendant in O.S. No. 545 of 1997 of the 2nd Additional Sub Court, Ernakulam. The suit was filed for specific performance of an agreement for sale of the property or for the return of the advance amount from the first defendant. The first defendant agreed to sell the property to the plaintiff as per agreement dated 20.12.1996 for a total consideration of Rs.2,70,000/-. The agreement period was 5 months from 20.12.1996. On the date of the agreement, an amount of Rs. 1 lakh was paid by the plaintiff to the first defendant. The plaintiff issued Ext. A2 registered notice dated 18.9.1997 demanding specific performance of the agreement. The first defendant executed a sale deed in favour of the second defendant on 15.10.1997. Hence, the plaintiff prayed for specific performance or for a decree for the return of Rs. 1 lakh with 12% interest.
(2.) Since this appeal is filed by the second defendant, we are not concerned with the first defendant. The Court below found that there was breach of agreement by the first defendant. It decreed the suit and ordered to return the amount of advance given by the plaintiff to the first defendant. A charge was created on the plaint schedule property. The second defendant is aggrieved by the direction in the decree creating a charge on the plaint schedule property.
(3.) The second defendant filed appeal challenging the decree in so far as a charge is created over the plaint schedule property. The total extent of the plaint schedule property is 6 cents and the area purchased by the second defendant is 4 cents. Learned counsel took the contention that since the transaction was for consideration and without notice of the agreement between the plaintiff and the first defendant, his property should not be encumbered with the charge. Learned counsel argued his point getting sustenance from S.100 of the Transfer of Property Act.;

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