LAWS(MAD)-2002-6-116

R VIMALCHAND Vs. RAMALINGAM

Decided On June 20, 2002
R.VIMALCHAND Appellant
V/S
RAMALINGAM Respondents

JUDGEMENT

(1.) THE appellants are the plaintiffs in C.S. No.509 of 1979 on the file of this Court. THEy filed the said suit against the respondents herein seeking a decree for specific performance of an agreement dated 17.2.1978 whereunder the respondents had agreed to sell the suit property to the appellants for a sum of Rs.2,75,000 and received a sum of Rs.25,000 by way of advance. As per the terms of the agreement, the sale is to be completed within six months from the date of intimation of the approval of the title by the appellants" counsel. THE further condition is that the sale should be free of all encumbrances. To get the approval of the appellants" counsel. THE further condition is that the sale should be free of all encumbrances. To get the approval of the appellants" counsel, the respondents have to furnish the original title deeds to the appellants. THE respondents did not comply with the condition of furnishing the original title deeds and not only avoided the compliance of the agreement; but also entered into a long term lease in respect of the other tenants in the suit property.

(2.) THIS necessitated the appellants to file the suit O.S. No.6584 of 1978 on the file of the City Civil Court, Chennai seeking a decree for injunction restraining the respondents herein from encumbering the property, stating that the appellants were always ready and willing to pay the balance of sale consideration and have the sale deed executed. Prior to the filing of the suit, the appellants intimated the respondents about the approval of title by their lawyer and the respondents herein sent a telegram dated 26.4.1978 to the appellants auditor seeking a week's time to meet the appellants and complete the transaction. As the respondents tried to enter into a long term lease, the appellants issued a lawyer's notice dated 19.7.1978, informing the respondents that the appellants are ready and willing to pay the balance of sale consideration and have the sale deed registered and requested the respondents to confirm the date for execution of the registration.

(3.) IT is the contention of the learned counsel for the appellants that the learned Judge placed much reliance on the redemption suit filed by the first respondent on the file of the City Civil Court, Madras to come to the conclusion that the respondents were pressurised to discharge the mortgage debts due to Jai Krishna & Co. as well as Sudarsan Chit Fund and as such the appellants ought to have discharged the loan due to the respective creditors and insisted for the production of the original title deeds. In the absence of any recital in the suit agreement with regard to the discharge of any debt due to any creditors, the learned Judge is not correct in coming to the conclusion that the appellants are bound to discharge the loan amount and their failure to do so would lead to an inference that the appellants do not possess sufficient means to pay the balance of sale consideration in discharge of their obligation arising out of the suit agreement. In fact the learned Judge proceeded only on the basis of the redemption suit and the pressure on the respondents for the discharge of the loan and the learned Judge totally failed to take into consideration of the recitals in the sale deed as it is which alone reflects the intention of the parties to the agreement. IT is further contended that after filing the suit, the respondents took out an application for a direction, directing the appellants to deposit the entire balance amount into the Court and admittedly the appellants also deposited the entire amount into the Court which was lying to the credit of the suit till the disposal of the suit. Hence it cannot be said that the appellants were not ready and willing to perform their part of the contract. Even with regard to the application of the principles ofO.2, C.P.C., there is a misconception on the part of the learned Judge in holding that the present suit is barred. The cause of action in the earlier suit O.S. No.6584 of 1978 filed by the appellants is not the same and the relief sought for is also not the same. Further the said suit was withdrawn immediately after the filing of the present suit and as suchO.2, C.P.C. cannot be made applicable to the facts of the present case.