S SAMBANDAM Vs. P DAIVASIGAMANI

JUDGEMENT

(1.) The plaintiff in the Original Suit is the appellant herein. The suit was filed for specific performance of an agreement for sale dated 05.10.1989 or in the alternative for refund of the advance amount with interest and for the recovery of a sum of Rs.2,50,000/- as compensation for breach of contract and also for a permanent injunction restraining the defendant from alienating or transferring the suit property to any other person. After trial, the learned trial Judge decreed the suit in respect of the prayer for refund of advance amount with interest at the rate of 12% per annum and dismissed the suit in respect of other prayers by a judgment and decree dated 28.6.2002. As against the decree of the trial Court dismissing the suit in respect of the prayer for specific performance of the contract and in the alternative for damages and also for permanent injunction, the present appeal has been preferred.

(2.) The case of the appellant/plaintiff in brief can be stated as follows: The respondent/defendant is the owner of the property described in the plaint schedule as suit property, namely, an extent of 1 acre out of 1.80 acre of wet land comprised in S.Nos.287 and 288 situated in No.85, Ayyanambakkam Village within the Sub-Registration District of Ambattur and Registration District of Chennai North. The respondent/defendant agreed to sell and the appellant/plaintiff agreed to purchase the suit land for a sum of Rs.6,50,000/- at the rate of Rs.6,500/- per cent. Consequently, a written agreement was entered into between the appellant/plaintiff and respondent/defendant on 05.10.1989, on which date a sum of Rs.50,000/- was paid to the respondent/defendant as advance and part payment of the sale consideration. Time for completion of the sale transaction was stipulated to be 6 months in the suit sale agreement. But the time fixed in the agreement was not specifically agreed to be the essence of the contract. The respondent/defendant undertook to obtain and produce Income Tax clearance certificate and up-to-date Encumbrance Certificate. He had also agreed to hand over vacant possession of the suit property at the time of execution of the sale deed. In addition to that the respondent/defendant also agreed to execute a deed of irrevocable Power of Attorney in favour of the appellant/plaintiff. Though the appellant/plaintiff periodically contacted the respondent/defendant and informed him about his readiness and willingness to perform his part of the contract and requested the respondent/defendant to execute the sale deed after obtaining Income Tax clearance certificate and Encumbrance Certificate, the respondent/defendant failed to get those documents and failed to execute even an irrevocable Power of Attorney in favour of the appellant/plaintiff. In fact, the appellant/plaintiff had prepared a deed of irrevocable Power of Attorney and handed over the same to the respondent/defendant for execution and registration. But the respondent/defendant did not come forward to execute the deed of Power of Attorney. Therefore, the appellant/plaintiff sent a letter by registered post on 17.3.1990 calling upon the respondent/defendant to execute a deed of Power of Attorney and also to conclude the sale transaction. But the respondent/defendant refused to receive the said registered letter. Thereafter, the appellant/plaintiff sent a lawyer's notice dated 26.3.1990, which was also returned with an endorsement "refused", pursuant to which, the appellant/plaintiff caused a public notice to be issued by way of publication in the Tamil daily "Dhina Thanthi" on 02.5.1990 and in the English daily "Indian Express" on 06.5.1990 warning the public from entering into any sale transaction in respect of the suit property with the respondent/defendant. Despite the said efforts taken by the appellant/plaintiff, the respondent/defendant failed to fulfill his obligations under the agreement for sale. The appellant/plaintiff had been ever willing and ready to perform his part of the contract under the suit agreement and on the other hand, the respondent/defendant was not ready and willing and hence the appellant/plaintiff was constrained to file the suit for the above said reliefs.

(3.) The suit was contested by the respondent/defendant by filing a written statement, the contents of which, in brief, are as follows:- The suit as framed by the plaintiff is not maintainable. The pleading made by the appellant/plaintiff in the plaint regarding the execution of the agreement and the fixation of the consideration are true. But the advance amount of Rs.50,000/- was not paid on the date of agreement as contended by the appellant/plaintiff. The appellant/plaintiff gave a cheque for the said amount and as per the request of the respondent/defendant, 2 months after the date of agreement, the appellant/plaintiff paid Rs.50,000/- in cash and got back the cheque from the respondent/defendant. The readiness and willingness on the part of the appellant/plaintiff and the absence of the same on the part of the respondent/defendant as pleaded by the appellant/plaintiff in the plaint is denied as false. The allegations regarding the registered letter dated 17.3.1990 are not true. The appellant/plaintiff himself, after sending the said letter, had somehow managed to get it returned with the endorsement "refused". The respondent/defendant did not have any knowledge of the lawyer's notice allegedly sent by the appellant/plaintiff through his lawyer on 26.3.1990. Respondent/defendant is also not aware of the alleged publications made in the newspapers. The respondent/defendant was always ready and willing to perform his part of the contract under the agreement for sale. On the other hand, appellant/plaintiff was not ready and willing and it was he who committed default. As such, the contract stands rescinded and no such contract was in subsistence as on the date of filing of the suit. The appellant/plaintiff having committed default shall not be entitled to the relief of specific performance or damages. On the other hand, because of the default committed by the appellant/plaintiff, the advance amount of Rs.50,000/- paid by him stands forfeited and the appellant/plaintiff shall be liable to pay damages to the tune of Rs.5,00,000/- to the respondent/defendant for the mental torture caused by the failure of the appellant/plaintiff to fulfil his obligations. However, the respondent/defendant reserves his right to file a separate suit for claiming damages against the appellant/plaintiff. The suit is time barred. For all the above said reasons, the suit filed by the appellant/plaintiff should be dismissed with cost. One Sundaram, Manager of "Indegar Paints and Warnish Co." in whose presence the agreement was finalized is a necessary party to the suit for proper adjudication and the plaintiff would not be entitled to any relief without making him a party to the suit.