K SHANMUGAM Vs. C SAMIAPPAN

JUDGEMENT

(1.) The plaintiffs in the original suit are the appellants in the second appeal. They filed the original suit O.S.No.886 of 2001 on the file of the Sub-Court, Erode against the first respondent herein, his father Chinnasamy Gounder and the respondents 3 to 8, for the refund of an advance amount of Rs.2,50,000/- paid under an agreement for sale dated 12.04.1995, together with interest. Learned trial Judge decreed the suit directing the respondents/defendants to pay a sum of Rs.3,94,671.50 together with a pendente lite and post decree interest at the rate of 6% p.a on Rs.2,50,000/- (the amount paid as advance under the agreement for sale), creating a charge over the suit property for the said amount and also directing the defendants to pay costs. On an appeal filed in A.S.No.52 of 2007 on the file of the District Court, Erode by the first respondent/first defendant, the learned lower appellate Judge (First Additional District Judge, Erode) allowed the appeal, reversed the judgment of the trial Court, set aside the decree of the trial Court and dismissed the suit without costs. Hence, the plaintiffs have preferred the present second appeal.

(2.) One Pavayammal was the owner of the suit properties, having derived title to the same under a registered sale deed dated 27.08.1986 and partition deed dated 30.03.1995. The said sale deed and the partition deed have been produced and marked as Exs.A1 and A2 respectively. The first defendant Samiappan is her son and the deceased Chinnasamy Gounder was her husband. Pavayammal is no more and while she was alive, she along with her son Samiappan (first defendant) entered into an agreement with the plaintiffs under Ex.A3 dated 12.04.1995 agreeing to sell the suit properties to the plaintiffs for a sale consideration of Rs.10,61,000/- and received a sum of Rs.2,50,000/- on the date of agreement as advance and part payment of the sale price. At the time of execution of Ex.A3 agreement, the title deeds of Pavayammal, namely Exs.A1 and A2 were handed over to the plaintiffs. Subsequent to the execution of Ex.A3 agreement for sale, Pavayammal died on 30.07.1995 leaving behind her, her son Samiappan (the first defendant) and her husband Chinnasamy Gounder (the deceased second defendant) as her legal heirs.

(3.) The above said facts are not disputed and on the other hand are admitted by the parties. For one reason or other, the sale transaction could not be completed and the plaintiffs chose to issue a notice under Ex.A4 to the defendants 1 and 2 on 16.04.1998, terminating the agreement for sale and calling upon them to repay the advance amount of Rs.2,50,000/- together with interest on the said amount calculated from the date of payment (date of agreement). For the said notice, a reply was sent by the defendants 1 and 2 through their advocate under Ex.A5 contending that the plaintiffs had removed the fence and the trees that stood in the suit properties and also made the agricultural land unfit for cultivation by removing the soil and leveling it with a view to convert it into house sites; that the defendants 1 and 2 had to spend a sum of Rs.1,00,000/- to re-convert the land into a cultivable land; that they had incurred a loss of Rs.2,50,000/- by the removal of the fence and removal of the soil and a further sum of Rs.1,00,000/- by the removal of the trees from the suit land and that on the said scores, they were entitled to claim a sum of Rs.3,50,000/- as damages from the plaintiffs. Under the above said circumstances, the plaintiffs had filed the suit for the above said reliefs based on their contention that they were ever ready and willing to perform their part of the obligations under the agreement for sale, but the defendants 1 and 2 failed to get and produce Income Tax Clearance certificate and also failed to extend their cooperation for getting necessary approval for the layout plan and that the same was the reason for their cancellation of the agreement. Since portions of the suit properties, which were the subject matter of the agreement for sale under Ex.A3, were sold by defendants 1 and 2 in favour of defendants 3 to 8 subsequent to the issuance of Ex.A4 notice, they were also made parties to the suit in order to get a decree binding on them also, as the plaintiffs had sought for a charge over the suit properties.