V X JOSEPH Vs. T PASUPATHI

JUDGEMENT

(1.) The plaintiff is the appellant. The suit is for specific performance of an agreement of sale and alternatively without prejudice to the abovesaid relief, for a direction to the defendants to refund a sum of Rs. 22,000/- paid by the plaintiff to the defendants as advance towards sale Consideration and also to pay a sum of Rs. 10,000/- to the plaintiff by way of compensation for the loss and damages sustained by the plaintiff. The first defendant is the father of the minor second defendant. The first defendant only executed an agreement of sale on 14-7-1980. It is the case of the plaintiff that the first defendant entered into an agreement of sale in respect of house and premises bearing Door No. 282, Suryanarayana Road, Madras-13 for a sum of Rs. 37,500/-, that he paid a sum of Rs. 5,000/- as advance to the first defendant who agreed to complete the transaction before the expiry of 60 days from the date of agreement. Subsequent to the agreement of sale, the first defendant wanted the plaintiff to pay a further advance of Rs. 5,000/- to the first defendant's wife to meet out certain urgent family necessities on 26-8-1980. The plaintiff also paid a sum of Rs. 12,000/- further to avert the attachment of the property in a suit filed by the Life Insurance Corporation of India against the first defendant for realising the debt. Accordingly, the plaintiff has so far paid till date, a sum of Rs. 22,000/-. It is admitted that the plaintiff had purchased already the front portion of the property and that the present agreement of sale is only regarding the rear portion of the suit property. The plaintiff wanted to purchase the rear portion for putting up an Ice Factory in the said premises after demolishing the existing old building. The first defendant agreed to sell the property as soon as the plaintiff was able to vacate the tenants in the occupation of the portion which the first defendant had already sold to the plaintiff. This seems to be an excuse of the first defendant with a view to take advantage of the constant increase in the price of the real property.

(2.) The superstructure of the schedule mentioned property was constructed out of the amounts advanced by the plaintiff to D. Natarajan, the brother of the 1st defendant when the said property belonged to him. Subsequently, the said property was allotted to the share of the first defendant and as such the first defendant became the owner of the superstructure. However, subject to the liability to give credit to the sum of Rs. 4,000/- paid by the plaintiff. There is also a condition in the agreement of sale that the plaintiff should seek eviction of the tenant. But it was so entered with a view to enable the plaintiff to bargain with the tenant to vacate the tenant at the least costs. The first defendant was willing to spend at least Rs. 6,000/- for eviction of the tenant. But the same is not inserted in the agreement of sale; otherwise, the tenant would claim the said entire amount from the 1st defendant. But the plaintiff had assured the first defendant that since he was a friend of the tenant, he would cause his eviction at a cheaper rate. That was why in the agreement of sale, it was stated that the plaintiff would cause eviction of the tenant. The tenant also had agreed with the plaintiff to vacate on payment of Rs. 5,500/-. According to the plaintiff, a sum of Rs. 4,000/- was to be deducted being an advance transferred by the first defendant's brother to the first defendant Rs. 5,500/- being the amount reserved to be paid to the tenant; Rs. 22,000/- already paid to the 1st defendant, leaving only a sum of Rs. 6,000/-, to be paid to the first defendant. But the first defendant was not willing to deduct Rs. 4,000/- and Rs. 5,500/- and so, the plaintiff reserved his right to initiate appropriate steps to recover all those amounts. The plaintiff had sent a draft sale deed to the first defendant for his approval. But without approving it, the first defendant had returned the same to the plaintiff. The plaintiff was been always ready and willing to have the sale deed executed. But the first defendant wilfully, with a view to gain unfair advantage, did not take any action for performing his part of the contract.

(3.) The plaintiff learnt that the defendants constitute a Hindu coparcenary family of which the first defendant is the manager and so, the agreement of sale binds the second defendant also though the second defendant is not a party to the agreement of sale. The specific case of the plaintiff is that the agreement of sale is made and it is for the benefit of the second defendant also. The first defendant had agreed to refund the money to the plaintiff within a particular period to enable the latter to pay the said sum for acquisition of another property. But the first defendant did not refund the same. The plaintiff is put to loss and damages due to the act of the first defendant and therefore, he claims compensation of Rs. 12,000/-. By way of abundant caution and without prejudice to the right of the plaintiff to specifically enforce the sale agreement, the plaintiff is also seeking for a decree for the refund of the sum of Rs. 22,000/- paid to the first defendant. Hence, the plaintiff filed the suit for specific performance of the agreement of sale and in the alternative without prejudice to the said relief, the plaintiff also prays for a decree against the defendant to refund the sum of Rs. 22,000/- and also for Rs. 10,000/- towards damages.