T.P. PONNUSAMY Vs. R. DEVARAJ

JUDGEMENT

(1.) The unsuccessful defendant in a suit for specific performance is the appellant. The respondent filed a suit for specific performance of agreement of sale dtd. 28/8/2011 along with extension agreement dtd. 29/6/2012 with alternative prayer for return of advance amount in O.S.No.44 of 2013, on the file of the III Additional District and Sessions Judge, Coimbatore. The suit was decreed by the trial Court granting the main relief of specific performance of the agreement and aggrieved by the same, the defendant has filed this appeal.

(2.) PLAINT AVERMENTS: It was contended by the plaintiff that the respondent was the original owner of the suit property and there was an agreement between him and the respondent, on 28/8/2011, whereunder he agreed to purchase 1.05 1/2 acres of land situated in S.Nos.441/3 and 441/4 in Otthakalmandapam Village, Coimbatore Taluk. The sale consideration was fixed at Rs.41,50,000.00 and time fixed for performance was three months. The plaintiff has paid an advance of Rs.20,00,000.00 to the defendant on the date of agreement. The balance of Rs.21,50,000.00 was agreed to be paid within three months. On his part, the respondent/defendant agreed to demarcate the land covered under the sale agreement, clear the encumbrances, hand over the title deeds and vacant possession of the property to the appellant. It was also contended by the plaintiff that inspite of several requests by him, the defendant failed to perform his part of the contract namely demarcation of land, delivery of title deeds etc. Later on, both the parties mutually agreed to extend the time by 13 months and entered in to a written agreement on 29/6/2012, whereunder time was extended by further period of 13 months. The plaintiff was also paid an additional advance of Rs.5,000.00 on that day. Later on, the plaintiff sent a registered letter dtd. 3/11/2012 (marked as Ex.A3) and another letter dtd. 12/12/2012 (marked as Ex.A4) calling upon the defendant to receive the balance amount from the plaintiff and execute the sale deed and there was no reply for the same by appellant/defendant. The defendant delayed the completion of the sale transaction as he failed to demarcate the subject matter of the agreement and clear the encumbrance etc. Finally on 19/12/2012, Ex.A5 - legal notice was issued to the defendant calling upon him to be present on 24/12/2012, before the Sub Registrar Office, Kinathukadavu, for execution of sale deed in pursuance of the suit agreement and the same was received by the appellant/defendant on 20/12/2012 (Ex.A7-Postal acknowledgement card). Inspite of the legal notice issued by the respondent/plaintiff, the appellant/defendant failed to execute the sale deed as agreed and hence the plaintiff was constrained to file the suit for the above said reliefs.

(3.) AVERMENTS OF THE DEFENDANT IN THE WRITTEN STATEMENT: The defendant admitted the execution of original sale agreement dtd. 28/8/2011 and subsequent extension agreement dtd. 29/6/2012. He contended that time of three months fixed in original agreement was essence of contract and hence agreement was determined on 27/11/2011 by efflux of time. It was also contended by the defendant that the original agreement got lapsed on 27/11/2011 and any subsequent agreement between the parties for extension of time was not valid in the eye of law. The defendant further contended that he was always ready and willing to perform his part of the contract but the plaintiff was not ready and willing to perform his part of the contract and hence he was not entitled to the relief of specific performance.