K S GEETHA Vs. STANLEYBUCK

JUDGEMENT

(1.) Plaintiff in O. S. 1545 of 1999 on the file of I Additional Subordinate Court. Coimbatore is the petitioner herein. The above revision has been preferred against the order allowing I .A. 1094 of 2000, petition filed under Order VII, Rule 11 read with S. 151 of Code of Civil Procedure rejecting the plaint.

(2.) Petitioner as plaintiff filed the above suit against the respondents herein on the file of Subordinate Court, Coimbatore, praying the Court to grant a decree for specific performance of the contract dated 5-6-1995 and directing the respondents herein to execute the sale deed on receiving the consideration as detailed in the plaint and free of all encumbrances in respect of an extent of 9 acres of lands after adjusting the amount of Rs.21,92,000/- paid as advance either to the plaintiff or her nominees and if they commit default to have the sale deed executed and registered by the Court at the cost of the plaintiff at the first instance to be recoverable from the respondents/defendants or in the alternative, directing the respondents/ defendants to pay a sum of Rs.21,92,000/- to the plaintiff with interest at 24% per annum from the date of the suit till the date of realisation.

(3.) Briefly it is the case of the petitioner/ plaintiff that an agreement was entered into between her and the defendants, in and by which the defendants agreed to receive a total consideration of Rs.3.00 crores and execute a sale deed in respect of the plaint scheduled properties, which is an extent of 88.86 acres in Mathuvarayapuram village, Coimbatore Taluk. The further case of the petitioner is that on that day a sum of Rs.3,92,000/- was paid by pay order drawn on Canara Bank, Coimbatore and defendants agreed to execute sale deed free of all encumberances or charges within a period of six month.s from the date of the said agreement and possession of the properties was also delivered on the same date. The plaintiff made subsequent payments and totally in all, as on the date of filing of the suit, plaintiff had already paid a sum of Rs.21,92,000/-, which would include advance as well as part of sale consideration. According to the plaintiff, the defendants suppressed they having mortgaged an extent of 48.75 acres of the lands in favour of M/s Indian Bank, Coimbatore and also the pendency of proceeding under Land Reforms Act in respect of 55 acres of lands before the Government. Even though the plaintiff approached the defendants a number of times to clear the encumbrances over the properties and to give a better title to her to have the sale deed executed in her favour, the defendants are evading and postponing the sale under, some pretext or the other. As the defendants attempted to sell the properties to some third parties, the plaintiff was constrained to file a suit in O.S. 749 of 1996 on the file of District Munsif Court, Coimbatore, for permanent injunction and on the date of filing of this suit, the earlier suit was still pending. Coming to know about the proceedings before the Land Tribunal under Land Reforms Act is not yet disposed of and is pending, the plaintiff approached the defendants to clear the encumbrances and also get a certificate from the Land Reforms Office to enable her to have the sale deed executed in her favour. The defendants represented that they will clear the proceedings before the Land Reforms Tribunal within a short time and execute the sale deed on receiving the balance sale consideration and in view of that the period of performance has been extended from time to time. According to the suit agreement time was not the essence of the contract. In view of the fact that the contract between the plaintiff and defendant became impossible and defendants failed to perform their part of the contract, plaintiff expressed her willingness to get the sale deed executed in respect of the unencumbered lands of an extent of 9 acres. As there was no response from the defendants, plaintiff was constrained to file the present suit.