K.N.JAGANATHAN Vs. S.M.DEVARAJ

JUDGEMENT

(1.) The Appeal Suit on hand is directed against the judgment and decree passed in O.S.No.20 of 2009 dated 25.09.2014. The defendant is the appellant before this Court. The respondent plaintiff instituted a suit for specific performance of the agreement of sale dated 22.09.2003, entered into between the plaintiffs and the defendant, in respect of the suit schedule mentioned property.

(2.) The facts in nutshell as narrated by the plaintiffs are that the suit property belongs to the defendant and he purchased the same through registered sale deed dated 02.04.1969 registered as document No.1164 of 1969. On 22.09.2003, the defendant has executed an agreement for sale in favour of the plaintiffs agreeing to sell the property to the plaintiffs for a total sale consideration of Rs.21,00,000/- and received an advance amount of Rs.1,00,000/- initially and subsequently, received further advance and in total, the defendant had received an advance amount of Rs.4,75,000/-. The time fixed for completion of the terms of agreement was fifteen months, ie., on or before 21.12.2004. The last payment of advance was made on 06.09.2006. Though the period of fifteen months was stipulated in the suit sale agreement, it was agreed between the parties that the time is not the essence of contract as the defendant had received subsequent advance amount from the plaintiffs.

(3.) The plaintiffs states that on verification, they found that the suit property was subjected to a mortgage and the defendant was taking time after time for discharging the said mortgage and execute the registered sale deed in favour of the plaintiffs. The plaintiffs contends that they were always ready and willing to perform their part of contract and the defendant was evading the performance on his part of contract on account of the fact that the suit property was already under mortgage and the said mortgage was not redeemed for the purpose of execution of sale in favour of the plaintiffs. Thus, the plaintiffs issued lawyer notice on 05.01.2005, to the defendant and the defendant denied the contentions by way of reply notice and thereafter, the plaintiffs were constrained to institute a suit for specific performance.