R CHINNA RAJU Vs. S NATARAJAN

JUDGEMENT

(1.) THE unsuccessful plaintiffs in O.S.No.151 of 2011 on the file of the Additional District and Sessions Court (Fast Track Court No.II), Coimbatore, are the appellants in the above appeal. THE plaintiffs originally filed O.S.No.220 of 1996 before the Sub-Court, Coimbatore, which was subsequently transferred to the Additional District and Sessions Court (Fast Track Court No.II), Coimbatore, and re-numbered as O.S.No.151 of 2001. THE suit was filed seeking a decree of specific performance against the respondent herein directing him to execute the sale deed in respect of the suit properties on the basis of the agreements of sale, dated 17.06.1987 and 25.03.1991. THE appellants also sought for a decree for permanent injunction against the respondent from alienating and encumbering the suit properties and alternatively sought for a direction against the respondent to refund the advance amount of Rs.3.5 lakhs with 18% interest per annum.

(2.) THE case of the appellants is as follows:- THE appellants are engaged in Real Estate Business; they entered into an agreement of sale, dated 17.06.1987 with the respondent for the purchase of an extent of 3.21 acres in S.F.No.378/2 and 5 cents and 27 sq.ft., in S.F.No.365/1 of Karundampalayam Village; 5 cents and 27 sq.ft., land was exclusively meant for the purpose of the access; the sale price of the land was fixed at the rate of Rs.1,45,500/- per acre; Rs.50,000/- was paid as advance and another sum of Rs.50,000/- was paid on 14.09.1987; on 31.12.1989 another sum of Rs.50,000/- was paid towards the sale consideration and necessary endorsements have been made in the sale agreement to that effect; another agreement, dated 25.03.1991 was executed by the respondent in favour of the appellants agreeing to sell an extent of 2.68 acres compromised in S.F.No.381/2 and an extent of 4.48 acres compromised in Survey No.382/2 of the same village; as far as the agreement, dated 25.03.1991, the sale price was fixed at Rs.3,50,000/- per acre and on the date of agreement, a sum of Rs.1 lakh was paid as advance and subsequently on 18.09.1991 another sum of Rs.50,000/- was paid; necessary endorsement has also been made in the agreement; a further sum of Rs.50,000/- was received and acknowledged by the defendant on 10.10.1994; thus under both the agreements of sale, a total sum of Rs.3,50,000/- have been received by the respondent. (ii) As per paragraph 1 of the agreement, dated 17.06.1987, the respondent shall survey the entire property and execute the sale deed within ten months from the date of survey free from all encumbrances; according to the appellants, at the time of entering into the second sale agreement, as the respondent has expressed his willingness to join as one of the parties to promote the sale of house sites and agreed to share the profit of 1/3rd on certain terms and conditions, another agreement was entered into on 25.03.1991 itself; as per clause 4 of the agreement, after the sale proceeds are realised the respondent is entitled to receive his 1/3rd share in the net profit along with balance sale consideration as mentioned in the agreement. (iii) THE respondent was adopting delaying tactics even to measure and survey the lands and the said condition is mandatory and only if that condition is fulfilled, the appellants can perform their part of the obligation; after lot of persuasion, the respondent agreed for the survey of the lands and the appellants arranged for a Survey of the schedule mentioned properties through a Civil Engineer and prepared a lay out plan on 02.10.1995; even thereafter the respondent continued his delaying tactics; thereafter, the respondent with an ulterior motive started negotiating sale of the schedule mentioned properties directly to third parties; in such circumstances, the appellants filed a suit in O.S.No.3148 of 1996 for permanent injunction before the I Additional District Munsif Court, Coimbatore and in I.A.No.1309 of 1996, an order of interim injunction was also passed and the same was in force. (iv) THE appellants issued a lawyer's notice to the respondent calling upon him to execute the sale deed on 09.09.1996; in the said notice, the appellants clearly expressed their willingness to take the sale on or before 30.09.1996; the respondent sent a reply notice with false averments which was received on 21.09.1996; in such circumstances, the suit is filed seeking a decree for specific performance; the suit is well within time, since clause 1 of the agreement, dated 18.06.1987 specifies a time limit of ten months from the date of survey and further the respondent had received and acknowledged various payments and the last endorsement was made on receipt of Rs.50,000/- on 10.10.1994; the appellants are ready and willing to take the sale and ear-marked necessary financial resources to meet the balance 2/3rd of the balance sale consideration less advance paid.

(3.) ON the aforesaid pleadings, the Court below framed the following issues:- i. Whether the plaintiffs are entitled for a decree of specific performance of the agreements of sale and whether they are entitled for a decree for permanent injunction and the alternative relief of refund of the sum of Rs.3,50,000/-" ii. Whether it is true that the plaintiffs have not complied with the conditions contained in the agreements" iii. Whether it is true that the plaintiffs knew about the land acquisition proceedings initiated by the Government" iv. Whether it is true that the defendant had received only a sum of Rs.3 lakhs as advance" v. Whether it is true that the suit is barred by limitation" vi. To what other relief, the parties are entitled to" An additional issue was also framed by the Court below, which reads as follows:- vii. Whether it is true that the plaintiffs were always ready and willing to purchase the suit property"