MANTHIRAM ASARI Vs. SHAMUGARAJ

JUDGEMENT

(1.) The defendant in O.S.No.66 of 2015 on the file of the II Additional District Court, Thoothukudi, has filed these two appeal suits. The suit was for partition. In the said suit the defendant raised a counter claim claiming damages. The suit was decreed and the counter claim was rejected. Hence, these two appeal suits have been filed. A.S.(MD)No.21 of 2020 is against the decree granting the relief of specific performance. A.S.(MD)No.l72 of 2021 is against the rejection of the counter claim.

(2.) The respondents herein namely, Shanmugaraj and his wife Hemalatha are the plaintiffs in the suit. The case of the plaintiffs is that the suit property belongs to the defendant/Manthiram Asari. Manthiram Asari entered into a sale agreement/Ex.Al dtd. 26/11/2012 agreeing to sell the suit property for a sum of Rs.18,25,000.00. On the date of agreement, the plaintiffs paid a sum of Rs.50,000.00 to the defendant in cash. The defendant had availed loan from one Somasundari. To settle the said loan liability, a sum of Rs.3,00,000.00 was paid. The suit property was mortgaged in favour of one Dhanasekaran as well as the first plaintiff. The plaintiffs discharged the said mortgage on the same date. Therefore, the plaintiffs must be taken as having paid a sum of Rs.8,40,000.00 as advance on the date of agreement itself. The sale was to be concluded within one week thereafter. The plaintiffs claimed that on 3/12/2012, they sent a telegram to the defendant asking him to come forward for executing the sale deed. In response thereto, the defendant sent a telegram dtd. 5/12/2012 (Ex.Bl) informing the plaintiffs that he would be ready to execute the sale deed on 10/12/2012 and he would be present on the office of the Sub Registrar also. It appears that the plaintiffs did not turn up in the office of the Sub Registrar on the said date. Therefore, the defendant sent Ex.A8/notice dtd. 27/2/2013 terminating the sale agreement. The plaintiffs sent reply dtd. 2/3/2013 (Ex.A9) disputing the averments in Ex.A8. Thereafter, the present suit for specific performance was filed before the expiry of limitation.

(3.) The defendant filed detailed written statement controverting the plaint averments. He also set up a counter claim alleging that the plaintiffs were given possession of the suit property and that they had caused damage to the same.