KUMARI ANANDAN Vs. T BALAMUKUNDA RAO DIED

JUDGEMENT

(1.) The plaintiff is the appellant herein who has filed a suit for specific performance in C. S. No. 495 of 1980 to direct the defendants to receive the balance sale consideration of Rs. 1,45,000/- and to execute sale deed in his favour in respect of the suit property at Door No. 40, Old Door No. 32, Venkatanarayana Road, T. Nagar, Madras - 17 which consists of ground and first floor together with an out house and for recovery of possession of the out house in the suit property.

(2.) The case of the plaintiff was that he started a political party known as Gandhi Kamaraj National Congress on 18-6-1978. After formation of the said party, he was searching for suitable accommodation for the party's office. The defendants are the owners of the suit property. The defendants have orally agreed to sell the same to the plaintiff for a consideration of Rs. 2,70,000/- in or about the end of June 1978. It is also agreed between the parties to complete the sale on or before 31-12-1979. The defendants have handed over the copies of the title deeds marked as Exs. P1 to P7 and also delivered possession of a portion of the suit property namely ground floor to enable him to house his party's office. One tenant namely Chitramahal Krishnamoorthy was in occupation of the upstair portion, the other two tenants namely Gowri and Ghyare were in occupation of the out house. The Plaintiff has also carried out certain repairs in the building and opened the party's office on 5-7-1978. The Plaintiff started collecting funds for the purchase of the suit property and made payments to the tune of Rs. 1,25,000/- as mentioned below :- 12-11-1978 Rs. 20,000/- by Cash (Ex. P8) 29-11-1978 Rs. 15,000/- by Cheque 20-12-1978 Rs. 5,000/- by Cheque 26-04-1979 Rs. 10,000/- By Cash (Ex. P9) 03-05-1979 Rs. 50,000/- By Cheque 13-10-1979 Rs. 5,000/- By Cheque 26-10-1979 Rs. 20,000/- By Cash (Ex. P10) The tenant in occupation of the upstair portion vacated in 1979, possession of the same was delivered to the plaintiff by the defendants; that the defendants promised to deliver vacant possession of the out house by 15-11-1979 and promised to execute the sale deed after receiving the balance sale consideration. As instructed by the defendants, the plaintiff has also purchased requisite stamp papers and the plaintiff was ready and willing to pay the sum of Rs. 1,45,000/- towards the balance sale consideration, but the defendants were postponing the delivery of vacant possession of the out house. Later, the defendants have agreed to execute the sale deed on 15-2-1980 and to deliver possession. As 15-2-1980 was considered as an inauspicious day, the plaintiff, who was then away from Madras had issued a telegram to the defendants and requested them to postpone the execution of the sale deed to the next auspicious day. On return to Madras, the Plaintiff approached the defendants to fix a date for completion of the transaction, but the defendants have been evading the execution of the sale deed, consequently a lawyer's notice Ex. P14 dated 15-3-1980 was issued calling upon the defendants to execute the sale deed. The defendants have also sent a reply Ex. P15 dated 25-3-1980 with false allegations, immediately a rejoinder Ex. P16 dated 11-4-1980 was sent by the plaintiff to the defendants denying all the allegations. Subsequently, the 2nd defendant has sent a separate reply notice dated 24-4-1980 reiterating the allegations made in their earlier reply. The defendants have demanded excess payment of Rs. 90,000/- without any basis, which was not agreed upon by the plaintiff. The Plaintiff has also deposited the balance of sale consideration of Rs. 1,45,000/- in Canara Bank, T. Nagar, Madras and filed the suit.

(3.) The first defendant in his written statement pleaded that there was no privity of contract between him and the plaintiff and no agreement of sale was entered into with the plaintiff. The Plaintiff was not entitled to the relief of specific performance. The suit is not maintainable as the same was filed in the name of the plaintiff, though it is alleged that the agreement was entered into by the plaintiff to purchase the suit property for the benefit of the political party namely Gandhi Kamaraj National Congress. The defendant never agreed to sell the suit property for a sum of Rs. 2,70,000/- to the plaintiff; that when the ground floor of the suit property fell vacant, one Perumal Nadar approached him through a broker for leasing out the same to one Paul Durai, who has married the plaintiff's sister. The said Perumal Nadar has married the sister of said Paul Durai. An agreement of lease was entered into for a period of 11 months in respect of the ground floor between the first defendant and Paul Durai, marked as Ex. D1 dated 22-6-1978. In and by the said agreement, Paul Durai agreed to pay a sum of Rs. 750/- towards monthly lease amount. In pursuance of the said agreement, the said Paul Durai occupied the property and paid a sum of Rs. 1,500/- towards rental advance. After Chitramahal Krishnamoorthy vacated the first floor, it was kept vacant under lock and key by the 1st defendant. The said Perumal Nadar approached the 1st defendant to purchase the suit property through a broker namely Palanichamy in the year 1978. The 1st defendant agreed to sell the suit property for a consideration of Rs. 2,70,000/- to the said Perumal Nadar. Apart from the said amount, Perumal Nadar agreed to pay a sum of Rs. 40,000/- towards estimated tax on capital gains. It is also agreed between the 1st defendant and Perumal Nadar that the sale transaction should be completed on or before 31/12/1978. While things are such, the said Paul Durai, without any authority had broke open the lock and occupied the first floor. Though the 1st defendant had made arrangememts to file a criminal complaint against the Paul Durai, Perumal Nadar had requested him not to initiate any criminal action against Paul Durai and promised to complete the sale as assured by him within the time stipulated and considering the same the first defendant had also dropped it; that Perumal Nadar did not complete the sale transaction with the result the defendant issued a notice Ex. D3 dated 25-4-1980 and cancelled the oral agreement entered into between the first defendant and Perumal Nadar. Ex. D2 dated 25-4-1980 legal notice was sent by the 1st defendant to Paul Durai calling upon him to pay a sum of Rs. 30,500/- towards arrears of rent. The 1st defendant did not obtain consent of the 2nd defendant for sale of the property. After receipt of the telegram, Ex. P13 dated 15-1-1984 from the plaintiff, the 1st defendant immediately contacted Paul Durai and Perumal Nadar and sought clarification from them but they expressed their inability and requested him to complete the sale transaction. The advocate's notice Ex. P14 dated 13-3-1980 was also duly replied to by the first defendant under Ex. D15 dated 25-3-1980 thereby an opportunity was given to the plaintiff to complete the sale within two weeks. The Plaintiff has also issued a rejoinder Ex. P16 dated 11-4-1980 with some false allegation. The amounts mentioned by the plaintiff were only received from Perumal Nadar. The 1st defendant has not delivered possession to the plaintiff nor assured to deliver out house by 15-11-1979. The Plaintiff is a trespasser and his alleged possession was illegal and unauthorised. The amounts received from Perumal Nadar has been adjusted towards arrears of rent due and payable by Paul Durai from September 1978 onwards at the rate of Rs. 750/- per month and towards damages for illegal and unauthorised occupation of the first floor by Paul Durai.