P KANDARAM Vs. N A CHINNADURAI

JUDGEMENT

(1.) THE Appellants/Defendants have filed the present Second Appeal as against the Judgment and Decree dated 28.08.1998 in A.S.No.34 of 1997 passed by the Learned I Additional District Court, Erode, in reversing the Judgment and Decree dated 11.10.1996 in O.S.No.69 of 1996 passed by the Subordinate Judge, Bhavani, Erode District.

(2.) THE First Appellate Court, viz., the Learned First Additional District Judge cum Chief Judicial Magistrate, Erode, while passing the Judgment in A.S.No.34 of 1997 and the Cross-Objection filed by the Respondent/Plaintiff (as an Appellant) on 28.08.1998, has among things observed that the Suit in O.S.No.69 of 1996 has been filed on 13.12.1993, within three years from the date of dismissal of the Suit in O.S.No.249 of 1989 on 19.11.1993 and as such, the Suit in O.S.No.69 of 1996 is not barred by limitation and further opined that the trial Court, after deeper scrutiny in paragraph 13 of its Judgment in the main Suit, has mentioned that the cancellation of Sale Agreement based on the reason that as per Ex.B5, there is no amount of Rs.5,000/- is only a sham one, which is a proper decision and also in the present Suit, there is no delay on the part of the Respondent/Plaintiff and that when the Suit filed by Bagyam has been dismissed within one month, the present Suit has been filed by the Respondent/Plaintiff and has come to a categorical conclusion that the direction issued by the trial Court to return the advance received without granting the relief of Specific Performance cannot be accepted and resultantly, allowed the Appeal and also the Cross-Objection with costs.

(3.) THE trial Court, after analysing the oral and documentary evidence available on record, has come to a consequent conclusion that presently, on the basis of Ex.A12, Suit Extract details in O.S.No.249 of 1989, party has been added after three years and on the basis of Ex.A6-Lawyer's notice dated 17.11.1989, when the Respondent/Plaintiff has stated that he is ready to fulfill his part of the contract and has issued a notice to the Defendants, after Ex.A7-Reply Notice dated 20.11.1989, the Respondent/Plaintiff has not taken steps to set aside the interim stay in O.S.No.249 of 1989 for three years, which shows that he is not interested to purchase the property and further opined that the Respondent/Plaintiff through Interlocutory Application during December 1992, in O.S.No.249 of 1989 has been arrayed as a party by filing a Petition and during the interregnum, he is not ready to complete the sale and that the sale Agreement is not affected by the injunction order in force and moreover held that the present Suit ought to have been filed by the Respondent/Plaintiff after issuance of Ex.A7-Reply notice dated 20.11.1989 and before the issuance of Reply Notice-Ex.A8, dated 14.11.1992 within a period of three years, and when it is not established that during this in between period from Ex.A7-Notice and Ex.A8-Reply notice, the Respondent/Plaintiff has been ready and willing to perform his part of the contract viz., to purchase the property and granted only alternate relief of return of advance of Rs.1,00,000/- to him to be paid by the Appellants/Defendants together with interest at 18% per annum from the date of Judgment till the date of realization along with costs and dismissed the Suit for Specific Performance with costs.