S SANKARAN DIED Vs. N G RADHAKRISHNAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree in Original Suit No. 116 of 1982, 20.7.1983 of the IV Additional Judge, City Civil Court, Madras. The first defendant in the suit is the appellant herein. Pending appeal, the appellant died and appellants 2 to 5 were impleaded as legal representatives as per order in C.M.P. No. 13164 of 1992 dated 30.8.1992.

(2.) THE material allegations which are relevant are:? As per Exhibit A-12 dated 1.3.1980 deceased appellant executed an agreement for sale in favour of the respondent/plaintiff, agreeing to sell the plaint schedule property. THE agreement Ex. A-12 says that the out-house situate at No. 10, Nana Rao Street, Madras will be sold for a total consideration of Rs. 60,000/-. On the date of agreement, a sum of Rs. 20,000/- was paid as advance and the balance amount of Rs. 40,000/- is to be paid within a period of six months. THE plaintiff also alleged that in pursuance of the agreement for sale, he is in possession of the building. Originally, he was occupying that portion as its tenant and after the agreement, he became the owner and enjoying the same in part performance of the agreement. It is also averred that a sum of Rs. 10,000/- more was paid within a week after the execution of Ex. A-12 and further, a sum of Rs. 15,000/- was paid on 6.8.1980. THE first defendant had taken a handloan of Rs. 15,000/- from one K. Narasimhalu Chetty on 10.6.1979, and the plaintiff has taken an assignment of the same. He claims that he is entitled to adjust the amount due under the loan transaction towards the balance of sale consideration. THE plaintiff also claims 24% per annum interest from the date of agreement till date of plaint on the above advance paid by him to the first defendant which according to him is liable to be adjusted in the balance sale consideration. Suit notice was issued on 9.7.1981 as evidenced by Ex. A-4 and a reminder was sent as per Ex. A-7 dated 22.8.1991. THE defendant refused to comply with the demand as per his reply dated 3.9.1981 (Ex. A-9) which according to the plaintiff necessitated the filing of the suit. He has prayed for a decree for specific performance directing the deceased appellant to execute the sale deed with consequential reliefs. THE plaint was subsequently amended by incorporating an alternative relief claiming the refund of advance amount with interest and also costs of the suit.

(3.) SECOND defendant has stated that he has no knowledge about the dealings between the plaintiff and the first defendant. He stated that he has filed a suit against the first defendant and the same is pending.