P MURUGESAN Vs. ARUKUTTY GOUNDER ALIAS ARUMUGHA GOUNDER

JUDGEMENT

(1.) APPEAL Suit (First APPEAL) against the judgment and decree dated 31.7.2007 in O.S.No.172 of 2006 on the file of the Additional District and Sessions CourtFast Track Court No.V, Coimbatore at Thiruppur.

(2.) THE averments in the plaint are as follows: (a) THE suit property belongs to first defendant. First defendant executed a Power of Attorney in favour of second defendant, empowering him to deal with the property. Second defendant as Power of Attorney of first defendant, entered into a sale agreement dated 9.9.2005 for Rs.4,54,400/- and received advance of Rs.1 lakh; three months' time was stipulated for execution of the sale deed. (b) THE plaintiff was always ready and willing to perform his part of contract. THE plaintiff requested second defendant to execute the sale deed after receiving the balance sale consideration. Second defendant represented that the parent document of the suit property is mortgaged with the Bank while availing of the loan and he assured to execute the sale deed after getting back the documents from the Bank after clearing the loan. (c) Since second defendant was postponing to execute the sale deed, the plaintiff issued legal notice dated 30.3.2006 to first defendant and second defendant. THE plaintiff received reply notice dated 10.4.2006 with false and frivolous allegations. Third defendant is the brother of second defendant, and third defendant was very well aware of the sale agreement dated 9.9.2005. After exchange of notice, second defendant executed a nominal sale deed in favour of third defendant. (d) THE sale deed was only sham and nominal document and that has been executed only to defeat and defraud the plaintiff's valuable rights available under the sale agreement. Third defendant is not a bona-fide purchaser for value. (e) Hence, the plaintiff has come forward with the present suit for decree of specific performance, alternatively, the plaintiff prayed for refund of advance amount with 18% p.a. interest from 9.9.2005 till realisation and also creating a charge over the property and also for permanent injunction restraining the defendants from alienating or encumbering the property and for costs.

(3.) AFTER hearing the arguments of the learned counsel for the appellant/plaintiff, this Court frames the following points for consideration: (i) Whether the trial Court is correct in holding that the appellant/plaintiff was not ready and willing to perform his part of the contract and so, he is not entitled to decree of specific performance ? (ii) Whether the trial Court is correct in holding that the time is the essence of the contract ? (iii) Whether the judgment and decree of the trial Court, are sustainable ? and (iv) To what reliefs the appellant/plaintiff is entitled to ?