M. RAJESWARI Vs. P.R. GOPAL

JUDGEMENT

(1.) THIS petition is directed against judgment dated 4.8.2008 of the Division Bench of the Madras High Court whereby the appeal filed by the respondent was allowed and the decree passed by the learned Single Judge for specific performance of agreement dated 19.2.1994 was set aside. The petitioner filed suit for specific performance by making the following assertions:

(2.) IN his written statement, the respondent pleaded that the petitioner had undertaken to clear the outstanding dues of the bank and to pay Rs.1,30,000/- in addition to the sale consideration, which she did not do; that he had agreed to sell only the ground floor, first floor and the second floor of the suit property but the petitioner was claiming all the floors; that the petitioner was not ready and willing to perform her part of the agreement and that she did not have adequate funds for paying the balance consideration. On the pleadings of the parties, the learned Single Judge framed the following issues:

(3.) AS pointed out above, the parties have agreed that the transaction should be completed within a period of 3 months from the date of the agreement. True it is, ordinarily time is the essence of the contract insofar as the sale of an immovable property. In the present case, certain circumstances are noticed. A reading of the agreement would clearly reveal that the property which was the subject matter of sale, was actually mortgaged with the Indian Overseas Bank, Sowcarpet Branch. It is also made clear in the agreement that the defendant was under necessity to enter into such a transaction for clearance of the said mortgage debt. At this juncture, Ex.A2 reads as follows: