P SAMIAPPAN Vs. RUKMANI

JUDGEMENT

(1.) The plaintiffs are the appellants. The suit O.S. No. 333 of 2006 having been dismissed by the Additional District Judge, Coimbatore at Tiruppur, by judgment and decree dated 31.8.2009, with regard to the prayer for specific performance of agreement of sale, the plaintiffs have come forward with this Appeal.

(2.) The appellants / plaintiffs filed the suit for specific performance to direct the defendants to perform the contract and to execute and register the sale deed in respect of the suit property pursuant to the agreement dated 19.10.2004 and for a direction to deliver vacant and actual possession of the suit property at the time of sale, and alternatively, to direct the defendants 1 to 4 and 6 to execute the sale deed for their undivided 4/5th share or in the alternate, to direct them to return the sum of Rs.1,75,000/-.

(3.) As per the plaint averments, the suit property originally belonged to one Rangasamy Gounder, who had purchased the same on 23.12.1970 by virtue of Registered sale deed. The first defendant is the wife of Rangasamy Gounder and defendants 2 to 4 are his children while the fifth defendant is his daughter-in-law and the sixth defendant is his grandson. After the death of Rangasamy Gounder, the property devolved on his legal heirs. The plaintiffs and the defendants entered into an agreement dated 19.10.2004, to sell the property and the said agreement was duly signed by them. On behalf of the minor defendant, the second defendant has signed the agreement. As per the agreement, the sale consideration was fixed at Rs.8,50,000/- and a sum of Rs.1,50,000/- was paid towards advance, on the same date and the time fixed for execution of the sale deed was four months. After receipt of the balance of sale consideration, it was agreed by the defendants that they shall measure and fix the demarcation stones for the property. It was also agreed that in the event of the defendants committing default on their part of the terms and conditions, the plaintiffs are entitled to enforce the same through Court. As there was a delay in measuring and fixing the demarcation stones, the defendants requested for some time for which the plaintiffs also agreed. On 24.11.2004, a further sum of Rs.25,000/- was paid by the plaintiffs. With that, the outstanding to be paid was Rs.6,75,000/-. Despite the fact that the plaintiffs were ready with the money to execute their part of the contract, the defendants have been delaying the execution of the sale deed. Therefore, the plaintiffs issued a legal notice Ex. A.3 on 11.02.2005 which was received by the first defendant on 15.02.2005 and issued a reply on 01.3.2005. It is contended in the plaint that the first defendant, after receiving the legal notice, met the plaintiffs along with the other defendants and expressed their inability to measure the suit property and fix the demarcation stones. The plaintiffs also had issued an amended legal notice on 12.4.2006 and again, on 13.4.2006, another notice was issued by the plaintiffs calling upon the defendants to execute the sale deed in their favour. The plaintiffs also undertook to deposit the balance sale consideration into Court if the Court directs them to do so. It is further seen that the plaintiffs also amended the plaint as the fifth defendant could not sign the agreement binding her 1/5th share in the suit property. Therefore, the plaintiffs had stated that insofar as the 4/5th share is concerned, there is a concluded contract and if, for any reason, the Court finds that the agreement is not binding regarding the 1/5th share of the fifth defendant, the plaintiffs will be satisfied to take a decree only for 4/5th share. The plaintiffs had also asked for an alternative relief of refund of advance with interest. As the sale did not come through as per the agreement, the suit was laid for specific performance of the agreement dated 19.10.2004 with respect to an undivided 4/5th share in the plaint property and deliver possession of the same or in the alternative, to refund the advance amount of Rs.1,75,000/- paid.