J. BASIL Vs. E.N. KOSALRAM

JUDGEMENT

(1.) THE 2nd defendant in O.S. No. 207 of 2004 on the file of the learned District Munsif, Thiruvallur is the appellant herein. The respondent is the plaintiff in the suit. One Mr. M. Sabastin was the first defendant in the suit. The said suit was filed for specific performance of the sale agreement entered into between the 1st defendant and the plaintiff by which the 1st defendant has agreed to sell the suit property to the plaintiff. The 2nd defendant is the subsequent purchaser who claims that he is a bona fide purchaser without notice of the said sale agreement. The trial court decreed the suit as prayed for, directing the defendants to execute a sale deed in favour of the plaintiff. As against the same, the appellant herein filed an appeal before the learned Subordinate Judge, Thiruvallur in A.S. No. 36 of 2012. In that First Appeal, the 1st defendant in the suit was not impleaded as a respondent. The 1st defendant also did not prefer to file any appeal against the decree and judgment of the trial court. Thus, in the first appeal, the respondent herein was the sole respondent. The lower appellate court by decree and judgment dated 11.03.2014 dismissed the said appeal thereby confirming the decree and judgment of the trial court. Challenging the same, the appellant is before this Court with this Second Appeal. In the Second Appeal also, the first defendant, against whom the decree was passed by the trial court and confirmed by the lower appellate court, has not been impleaded as a party.

(2.) THIS Second Appeal has come up before me today for admission. I have heard the learned Counsel for the appellant and the learned Counsel appearing for the respondent who has made appearance by filing a Caveat. I have also perused the records carefully.

(3.) THE 1st defendant initially appeared before the trial court on service of summons. He filed a written statement wherein he admitted the execution of the sale agreement dated 04.09.2002. But his contention in the written statement was that time was essence of the contract and though he was ready and willing to perform his part of contract, the plaintiff did not come forward to perform his part of contract within the time stipulated in the agreement. In other words, according to him, he was always ready and willing to execute the sale deed in favour of the plaintiff, but the plaintiff was not able to purchase the suit property by paying the total sale consideration due to non -availability of funds. In those circumstances, according to the 1st defendant, after 9 months of the expiry of the time stipulated in the sale agreement, he sold away the property on 01.08.2002 to the 2nd defendant. Thus, according to the 1st defendant, he is not liable to perform his part of contract as the time prescribed in the agreement had expired long before.