R MANOHARAN Vs. N SUBBIAH

JUDGEMENT

(1.) CHALLENGE is made in this appeal by the defendant to the Judgment and Decree dated 23.01.2007 and made in O.S.No.1433 of 2006, on the file of the learned II Additional Judge, City Civil Court, Chennai.

(2.) THE facts, which absolutely necessary for the disposal of this appeal are as under: THE original legal characters of the parties to the suit may not be changed and be it as it is in the suit. 2.1. THE suit is filed by the plaintiff against the defendant to execute the sale deed in respect of the suit schedule property after receiving the balance of sale consideration and in case the defendant fails to execute the sale deed, the Court may execute the sale deed in respect of the suit schedule property in favour of the plaintiff on deposit of balance of sale consideration. 2.2.That on 11.07.2005, the plaintiff had entered into an agreement of sale with the defendant and thereby, the defendant had agreed to sell the suit schedule property for a total sale consideration of Rs.5,55,000/-. On the date of sale agreement, the plaintiff had paid a sum of Rs.1,50,000/- towards advance and it was mutually agreed to execute the sale deed in favour of the plaintiff within a period of two months and the plaintiff had also agreed to pay the remaining balance of Rs.4,05,000/- at the time of registration of the sale deed. 2.3. Instead of executing the sale deed, the defendant had demanded a further amount of Rs.50,000/- to meet out the surgery expenses of his mother. Believing the words of the defendant, the plaintiff had parted with a sum of Rs.60,000/- on 15.10.2005 and the defendant had also acknowledged the receipt of the amount in the sale agreement. 2.4. In order to get approval for the suit property, the plaintiff with the consent of the defendant had applied for the approval through one Engineer Balasubramaniam. But, the defendant had given a letter to the concerned authority saying that the approval should not be given. 2.5.That on 21.11.2005 another amount of Rs.10,000/- was given by the plaintiff to the defendant on his request. THE receipt of this amount had also been acknowledged in the suit sale agreement. Altogether the plaintiff had paid a sum of Rs.2,20,000/- to the defendant. That on 15.12.2005, the plaintiff had prepared a draft to execute the sale deed. But, once again, the defendant had failed to act upon his promise. 2.6. At the time of execution of sale agreement, the defendant had informed that there was no encumbrance in the suit property. But in fact, the suit schedule property was mortgaged with the Repco Bank and this fact was deliberately suppressed by the defendant. Hence, the plaintiff was constrained to issue a legal notice on 23.12.2005 and thereby, the defendant was called upon to come and execute the sale deed in favour of the plaintiff within one week. On receipt of the notice, the defendant had also given a reply stating that he was ready to return the advance amount. THE plaintiff had also once again issued another notice to the defendant on 04.01.2006 calling upon the defendant to come and execute the sale deed. Since there was no response on the other end, the plaintiff was left with no other option excepting to file the suit. THE plaintiff was always ready and willing to perform his part of contract and even ready to deposit the balance of sale consideration before the Court. 2.7.THE defendant has contended in his written statement that after the payment of Rs.1,50,000/- towards advance at the time of execution of sale agreement, the plaintiff had agreed to pay the balance of sale price on or before 10.09.2005. But he was dilly-dallying in paying the balance of sale consideration and was constantly seeking extension of time and upon such request of the plaintiff, the defendant had extended the time and upon such extension the plaintiff had paid only a piecemeal amount of Rs.60,000/- on 15.10.2005. That on 21.11.2005, the plaintiff had approached the defendant and informed about his inability to mobilize necessary funds towards the balance of sale consideration and on that date, he had paid a sum of Rs.10,000/- as further advance and again sought a last and final chance of 30 days to pay the balance of sale consideration and the receipt of this amount was also endorsed on the reverse of the sale agreement. Even so, on such extension of time, he had failed to pay the balance of sale price to the extent of Rs.3,35,000/- within 20.12.2005. He had also failed to prepare the draft sale deed and to purchase the requisite stamp papers. 2.8.THEre is a clear covenant in the sale agreement that the defendant has to execute the sale deed only on receipt of balance of sale consideration from the plaintiff. In other words, the plaintiff ought to have paid the balance of sale consideration to the defendant before the registration of the sale deed. THE sale agreement is also very clear and unambiguous with regard to time for performance of obligations by parties to agreement. 2.9. Although the necessary period for performance of the obligation under the agreement was fixed at two months, it was extended till 20.12.2005 on the specific request made by the plaintiff. From the inception of the sale agreement, the plaintiff was informed that the property was mortgaged with the Repco Bank and when the said fact was about to be incorporated in the sale agreement, the plaintiff had refused to incorporate the same. THE plaintiff was well aware about the fact that the suit property was mortgaged with the Repco bank and in order to suppress his inability to mobilize the funds, he has taken such evasive stand.

(3.) ON appraising the evidences both oral and documentary and on considering the submissions made on behalf of both sides, the Trial Court has proceeded to decree the suit directing the defendant to execute the sale deed in respect of the suit property in favour of the plaintiff after receiving the balance of sale consideration and directing the plaintiff to deposit the balance of sale price viz.Rs.3,35,000/- to the Court within a period of one month from the date of Judgment and also directing defendant to execute the sale deed within two months after receiving the balance of sale consideration.