P S DURAIKANNOO Vs. M SARAVANA CHETTIAR

JUDGEMENT

(1.) THIS is an appeal from the judgment and decree of the Fifth Assistant Judge, city Civil Court, Madras in O. S. No. 1654 of 1957. The suit was instituted by the appellant for specific performance of a contract of sale of premises No. 41 Veda vinayakar Koil St. , Purasawalkam, Madras. The facts which save rise to the suit are these -

(2.) IN the year 1954, the second respondent who was the owner of the suit property No. 41 Veda Vinayakar Koil Street (now known as Perambur Barracks road, Purasawalkam, Madras,) created an equitable mortgage over it for securing a sum of money advanced to him by the first respondent, it is not disputed that the transaction conferred on the mortgagee a power to sell the mortgaged property. There was default in payment of the mortgage amount as stipulated. The first respondent purporting to act under the power of sale, caused the suit property to be sold by public auction through Messrs. Murray and Co. , auctioneers. The relevant conditions of the sale are those contained in paragraphs 2, 3 and 6 of the proclamation which run as follows:

(3.) IN the sale that was held on 4-6-1957, there were three bidders; among them was the appellant who bid for Rs. 15000, an amount slightly over what was (toe under the mortgage. That being the highest bid, the appellant was declared by the auctioneer to be the purchaser. But the appellant did not have sufficient funds with him to matte even the initial deposit of 25 per cent of the purchase price. He was able to pay on the spot only Rs. 1000. Later, however, he paid Rs. 2000 at his house, leaving a balance of Rs. 750 towards the initial deposit which was paid and accepted on the following day. There was default in the payment of the remaining 75 per cent of the purchase money, but this we shall refer to again after setting out certain events that took place before the due date for payment.