THOMAS Vs. MERLIN CONSTRUCTION COMPANY (P) LTD.

JUDGEMENT

(1.) The plaintiff in a suit for specific performance of an agreement for sale and in the alternative for return of the amount paid as advance is the appellant. The plaint claim is rested on Ext.A1 agreement for sale allegedly entered into between the plaintiff and the defendants in regard to 4 items of property totalling to 94.80 cents. The plaintiff asserted that a sum of Rs.5,75,000/ - was paid as advance to the defendants out of the total sale consideration of Rs.7,00,000/ - on the date of agreement itself. It is the further case that Ext.A2 series lawyer notices issued by the plaintiff were not responded to by the defendants and hence the suit for the reliefs.

(2.) The defendants totally denied having any transaction with the plaintiff as alleged and conceded only the receipt of a sum of Rs.75,000/ - as loan from one Mr. V.L. Ittiachen. The said Ittiachen was the father of the Managing Director of the plaintiff which is a company engaged in construction of buildings and incorporated at Madras. It is the case of the defendants that blank signed papers obtained by the said Ittiachen at the time of giving the loan would have been fabricated as Ext.A1 agreement. The defendants did not for a moment admit the signatures found in Ext.A1 agreement and also emphatically denied the receipt of Rs.5,75,000/ - as advance.

(3.) The brother of the Managing Director of the plaintiff was examined as PW.1 and a witness to Ext.A1 agreement was examined as PW.2 while the first defendant was examined as DW.1. The trial court though upheld the due execution of Ext.A1 agreement found that there was discrepancy as regards the mode of payment of consideration. The trial court hence declined specific performance and granted a decree for return of Rs.5,75,000/ - with interest in favour of the plaintiff against the defendants. The decree is challenged by the defendants in this Appeal Suit wherein the plaintiff has filed a memorandum of cross objections reiterating specific performance. We heard Mr. K. Ramachandran, Advocate on behalf of the appellants/defendants and Mr. P.R. Venkitesh, Advocate on behalf of the respondent/plaintiff.