M MARIMUTHU Vs. R NARASIMHAN

JUDGEMENT

(1.) APPEAL Suit (First Appeal) is filed against the judgment and decree dated 28.9.2006 in O.S.No.54 of 2005 on the file of the Additional District Court (Fast Track Court No.1), Salem.

(2.) THE averments in the plaint are as follows: The suit property absolutely belongs to the defendant. The plaintiff and the defendant entered into a sale agreement on 24.11.2004 for a sale consideration of Rs.5,75,000/ - and on that day, Rs.3 lakhs was paid as advance by the plaintiff and the balance sale consideration was agreed to be paid and the sale deed was to be executed by 31.1.2005. The possession was handed over to the plaintiff. Since the property was mortgaged in Syndicate Bank, Salem Town, the defendant has given an assurance to discharge the loan and handover the original title deeds with the discharge certificate. The plaintiff was always ready and willing to perform his part of the contract. On 1.12.2004, the plaintiff paid Rs.75,000/ - and on 8.12.2004, he paid Rs.75,000/ - and on 22.12.2004, he paid Rs.65,000/ - and the balance was only Rs.60,000/ - to be paid. The plaintiff made several requests to the defendant and the defendant has given evasive reply and hence, the plaintiff wanted to purchase the property free from all encumbrances. The plaintiff issued notice, but the plaintiff has not received any reply from the defendant. Hence, the plaintiff filed the suit for specific performance; alternatively, the plaintiff prayed for a direction to the defendant to refund Rs.5,15,000/ - together with interest @ 12% per annum from the date of the suit till the date of realisation and for costs.

(3.) THE trial Court, after considering the averments both in the plaint and in the written statement and the arguments of the counsel for both parties, framed three issues for consideration and upon perusing the oral and documentary evidence, i.e. P.Ws.1 and 2, D.W.1, Exs.A -1 to A -5, decreed the suit, against which, the present First Appeal has been preferred by the appellant/defendant.