VAIRAVAN Vs. K S VIDYANANDAM

JUDGEMENT

(1.) The plaintiff is the appellant in this first appeal against the judgment and decree in O.S. No. 466 of 1981 on the file of the Subordinate Judge, Madurai. The said suit is for specific performance of Ex. A.l, sale agreement dated 15-12-1978 filed by the appellant against the defendants. The Court below has negatived the relief of specific performance, but has granted the return of advance amount paid, of Rs. 5,000/ -with interest paid, under the said agreement; (total sale consideration there on was Rs. 7,60,000/ -and the property agreed to sold was a house in Madurai). Since the specific performance relief has been negatived by the Court below, this appeal has been filed by the plaintiff, claiming the said relief.

(2.) The plaint allegations are briefly as follows:- The defendants who owned the above said suit property agreed to sell it for Rs. 60,000/- to the plaintiff and accordingly executed the sale agreement dated 15-12- 1978. As per the sale agreement, the defendants agreed to sell the same within six months free of all encumbrances and hand over vacant possession of the property at the time of the sale. The defendants also received a sum of Rs. 5000/ -on the same day as advance from the plaintiff. The plaintiff has been always ready to perform his part of the contract althrough. The plaintiff is sufficiently rich and has been always ready and willing to pay the balance of Rs. 55,000/- and to purchase the stamp papers and meet out the registration expenses. The plaintiff has got command to pay the sale price at any time. Though the abovesaid six months' time was fixed, it was never agreed that time was of essence of the contract. The property agreed to be sold is in fact in occupation of a tenant. Whenever the plaintiff approached the defendants, the plaintiff expressed his willingness and asked the defendants to receive the balance and execute the sale deed. But, the defendants had been stating that the tenant had not vacated and had been asking for time and that as soon as the tenant vacated, they would execute the sale deed. Though as per the terms of the sale agreement, the defendants had agreed to hand over vacant possession, the plaintiff is prepared to accept attornment from the tenant and is prepared to take eviction proceedings against him if necessary after the sale is completed. The plaintiff has sent registered notice to the defendants on 11-7-1981, calling upon them to execute the sale deed, but, though they have received the notice on 13-7-1981, had sent a reply dated 27-7-1981, containing false allegations. The allegations in the said reply notice that time was agreed to be of essence of the contract, that the defendants were ready and willing to perform their part of the contract and that the plaintiff wanted time, are all falsehood. The further contentions in the reply notice that the plaintiff could not arrange for the sale deed in time, that the plaintiff stated that he would give up his claim for the refund of advance and that the plaintiff agreed to give up his claim for specific performance are all false. Similarly, the contention therein that the tenant is relative of the defendants and was prepared to vacate at any time is also false. Even now the suit building is in the occupation of the tenant.

(3.) The allegations in the written statement are briefly as follows :- The sale agreement stipulated that if the plaintiff failed to obtain the sale deed duly executed within the abovesaid period of six months, he should not demand back the deposit of Rs. 5,000/-and that if the defendants failed to execute the sale deed, they should repay the deposit of Rs. 5,000/- and another sum of Rs.5,000/- The building is in the occupation of the tenant by name P.R. Subramanian, who is a close relation of the defendants and he is always prepared to vacate at any moment. However, as the plaintiff required six months' time of arranging the sale price and as the defendants wanted to sell the suit house for the purpose of purchasing an other house property in Madras, six months' specific time was stipulated only to enable the plaintiff to arrange the sale price and obtain the duly executed sale deed from the defendants. The sale price has been increasing day by day and the time stipulated in the sale agreement was absolutely of the essence of the contract, and any delay would cause much loss to the defendants. The defendants had always been ready and willing to perform their part of the contract and hand over vacant possession. But, the plaintiff could not arrange for the sale price and obtain the sale deed. Hence, the plaintiff expressed his inability and unwillingness, to complete the sale transaction and also agreed to forego the advance amounts as per the terms of the agreement. The defendants had also entered into a sale agreement of 4-1-1979 with one Janaki Ammal at Madras for the purpose of purchasing a house property at Madras for Rs. 82,500/- and also paid an advance of Rs. 5000/- on the same day, agreeing to, obtain the registered sale deed. The defendants wanted to invest the sale proceeds of the suit property in purchasing the house property at Madras as the defendants 1 and 2 are the permanent residents of Madras and for this reason, alone, the defendants proposed to sell the house. As the plaintiff failed to complete the sale transaction and committed gross breach of the sale agreement, the defendants could not complete their sale transaction at Madras with the said Janaki Ammal. The market price of the suit property has increased nearly three times and that has now prompted the plaintiff to come forward with the suit. The sum of Rs. 5,000/- paid by the plaintiff under the sale agreement was only as a security deposit for the proper performance of the contract by the plaintiff and the plaintiff has only to lose the amount if he commits breach. The allegation that the plaintiff is sufficiently rich and has been ready and willing to pay the balance sale price, etc, and that the plaintiff has got command to pay the sale price at any time, are all false. The defendants never represented to the plaintiff that as soon as the tenant vacated they would execute the sale deed. The allegation that the plaintiff is now ready to buy the suit building with the tenant in possession thereof and with attornment from the tenant in favour of the plaintiff, clearly show the speculative nature of the plaintiff due to the increase in the value of the property. The reply to the suit notice contained true allegations. As per the terms of the sale agreement, the time for performance expired as early as 15-6-1979. But the plaintiff was keeping quite up to 11-7-1981 for issuing the suit notice and even thereafter the suit was filed only on 16- 10-1981. There is long delay and as per the very terms of the agreement, the plaintiff has to forego the return of the advance amount. Thus, it is evident that the plaintiff has abandoned his claim under the contract. The defendants incurred heavy damages due to the breach committed by the plaintiff and they could not purchase the coveted property at Madras. The plaintiff is not entitled to either the relief of specific performance or the relief of return of advance amount.