BRAHADAMBAL AGENCY AND PARTNERSHIP FIRM Vs. RAMASAMY

JUDGEMENT

(1.) Both the above Appeal Suit and the Cross-Objection are directed against the judgment and decree dated 7-10-1987 rendered in O.S. No. 86 of 1985 by the Court of Subordinate Judge, Puduk-kottai whereby the trial Court besides dismissing the suit filed by the appellant for specific performance and for delivery of possession or in the alternative directing the first defendant to pay a sum of Rs. 3,00,000/- as compensation and for costs, also inflicted a sum of Rs. 1,00,000/- as damages against the appellant with proportionate costs and future interest till payment of the due.

(2.) The appellant, a partnership firm, has filed the suit against the defendants, who are ten in number, on averments such as that the plaintiff is dealing in real estate : that by an agreement dated 12-12-1982 entered into in between the plaintiff and the first defendant, the plaintiff agreed to buy and the first defendant agreed to sell on approximate extent of 10 acres of land which is the suit property for a sale consideration of Rs. 3,50,000/- to the rate of Rs. 35,000/- per acre and on the same day, the plaintiff paid an advance amount of Rs. 50,101/- to the first defendant that the other terms of the agreement are (i) that the plaintiff has to pay to the first defendant a further sum of Rs. 50,000/- on or before 31-12-1982 as part payment of the purchase money, lest the agreement will stand cancelled, (ii) that the plaintiff has to pay the balance amount of Rs. 2,49,899/- on or before 12-6-1983 and get the sale deed executed by the first defendant (iii) that in the event that he is unable to pay the said amount in lumpsum, the plantiff is at liberty to purchase the property piecemeal by getting a sale deed for only one acre at a time on payment of Rs. 35,000/- and adjust the advance of Rs. 1,00,101/- towards the sale price of the last three acres and in case the plaintiff fails to pay the sum of Rs. 2,49,899/- on or before 12-6-1983, the advance so far paid by the plaintiff is to be forfeited and the plaintiff is liable to pay Rs. 1,00,000/- by way of damages; (iv) that the actual area of the plot to be conveyed, as on ground is to be ascertained by measurement and the price to be paid by the plaintiff will be according to the actual area available on ground at the rate of Rs. 35,000/- per acre.

(3.) The further case of the plaintiff is that in the manner aforementioned, the agreement provided two modes of purchase of the suit property at the option of the plaintiff, with no stipulation as to when the first sale deed is to be executed thus indicating that time is not the essence of the contract : that the area agreed to be sold, on measurement, was found to be only 8.20 acres; that the first defendant on coming to know of the plaintiff's plan to make a large profit, started thwarting the plaintiff by dubious means, one of them being setting up his own brother Sombandam to claim a share in the suit properties; that he also gave out that his undivided sons have a share and they are likely to dispute the binding nature of the agreement in plaintiffs favour and thus resolved to compel the plaintiff to pay additional sum towards the sale price or to withdraw from the transaction altogether and in spite of the plaintiff's attempts to meet him in person on or before 31-12-1982 and pay him the sum of Rs. 50,000/- proved futile since the first defendant was evading to meet the plaintiff.