S.LAKSHMI Vs. JANAGAMMAL

JUDGEMENT

(1.) The appeal suit on hand is directed against the judgment and decree dated 28.02.2013, passed in O.S.No.418 of 2006. The plaintiffs are the appellant in the appeal suit and who instituted a suit for specific performance.

(2.) The facts and briefs set out in the brief are as under:- The suit item 5 to 8 of the properties belonged to the first defendant and item 1 to 4 originally belonged to Balarama Naidu, husband of first defendant, father of defendants 2 to 5 and grand father of defendants 6 to 7. When Balarama Naidu was alive, both himself and No.1 of the defendants offered to sell the suit properties to one Subramania Naidu, husband of first plaintiff and father of plaintiffs 2 and 3, Subramania Naidu agreed to purchase the same and the price was fixed at Rs.10,000/- per cent and Subramania Naidu paid an advance of Rs.2,00,000/- on 28.10.2000. An agreement of sale was executed by Subramania Naidu as Purchaser and Balarama Naidu and first defendant as sellers in respect of the suit properties; A time limit of 11 months was fixed and the sellers must be ready to receive the balance and register the sale deed; Possession was handed over to the purchaser and he was permitted to prepare layouts, obtains licenses for the Same etc., Within that period Balarama Naidu and first Defendant received a sum of Rs.50,000/- towards sale price and endorsed the receipt of the same on the agreement on 27.04.2001 again on 09.01.2002 they received Rs.1,50,000/- and endorsed the payment on the agreement. Both of them were postponing the completion of the contract though Subramania Naidu was always prepared to complete the same; It appears that Balarama Naidu was not in good healths Hence, he had executed a will in favour of the first defendant leaving all his properties in her favour. Even otherwise on his demise, she had become co " "owner in respect of item 1 to 4 hereunder. Subramania Naidu approached first defendant and requested her to arrange for the salary early. She promised to do so and for her urgent necessity she received Rs.50,000/- on 07.08.2004 and endorsed the said payment also on the agreement Subramania Naidu has been ready to perform the contract throughout. Subramania Naidu passed away and this plaintiff are his legal heirs and have succeed to all his assets and rights inclusive of his rights under the above agreement. Plaintiffs made defendants aware about the passing away of Subramania Naidu and their readiness to perform the contract. But the defendants were evasive and first defendant was not properly responding. Hence, plaintiffs finally issued a registered notice to all the defendants on 29.05.2006 under registered post informing them of the readiness and willingness on the part of the plaintiffs to perform their part of the contract fixing 15.06.2006 as the date for execution and registration of sale deed and informing defendants that no extension of time will be granted. But the notices were returned unserved. Hence plaintiff sent the Notices again by certificate of Post, the notice were returned. The defendants have deliberately avoident receipt of the notice with ulterior motives. Taking advantage of the recent escalation of prices, they are attempting to wriggle out of the contract. The plaintiffs are therefore filling this suit for specific performance of the above contract.

(3.) The 5th defendant filed a written statement disputing the contentions and denying the allegations set out in the plain reads as under:- The suit is unsustainable in law and on facts. The allegations in paragraph III (1) of the plaint are denied. The allegations in Paragraph III (4) of the plaint are false and are denied. The allegations in paragraph III (5) of the plaint are denied. As per the terms of the agreement of sale dated 28.10.2000, it was agreed by late Subramania Naidu, that time was of the essence of the contract, that it had to be performed within 11 months and that the agreement will not be valid after 31.10.2001, Subramania Naidu did not perform his part of the agreement and he defaulted. The allegation that the plaintiffs after the demise of Subramania Naidu, were ready to perform the contract, is false. The late Balarama Naidu and the 1st defendant gave a registered power of attorney, dated 01.11.2000, to Subramania Naidu, for getting approval of layout to be formed. Since Subramania Naidu did not act as per the terms and conditions in the power, the power was revoked by Balarama Naidu and the 1st Defendant, under a registered deed, dated 02.11.2001, This itself would make it clear that Subramania Naidu did not act up to the terms of the agreement. The 1st defendant and Balarama Naidu,through their Advocate, Sri. P.S.Jagannathan, issued a registered notice dated 27.09.2001, to Subramania Naidu, pointing .out that a cheques for Rs.50,000/- dated 7.11.2000, and another cheque for Rs.50,000/- dated 12.11.2000 given by Subramania Naidu drawn on the Bank of Baroda, Choolaimedu Branch, Chennai - 94, had bounced back and also mentioned in the notice that the agreement of sale was cancelled,since Subramania Naidu did not perform his part of the contract. Time was of the essence of the contract of sale agreement dated 28.10.2000. Prices have been increasing by leaps and bounds for lands, in the locality. That was the principal reason why time was made the essence of the contract. On 21.01.2004, the 1st defendant executed a registered settlement deed, in favour of the 5th defendant B. Krishnamurthi, settling plaint items 4 to 8 and another item in favour of the 5th defendant and delivered possession to him. Under a registered sale deed and delivered possession to him; Under a registered sale deed dated 04.07.2005, the 5th defendant sold these interns in favour of one K. Panneerselvam son of Kannan, for valuable consideration and delivered possession to him. K. Panneerselvam son of Kannan, for valuable consideration and delivered possession to him K. Panneerselvam has been in possession and enjoyment of these items ever since the purchase. The allegations in paragraph III (6) and (7) of the plaint are denied. The suit is barred by limitation. The plaintiffs are not entitled to a decree for specific performance, or for refund of the alleged amount of Rs.4,50,000/-. The suit has not been properly valued and proper court fee has not been paid. The plaintiffs are not entitled to any damages. The schedule of property given in the plaint in not correct. The suit is bad for non-joinder of necessary parties. The defendant, therefore prays that this court may be pleased to dismiss the suit with costs.