A SHANTA Vs. H MADHAVA RAO

JUDGEMENT

(1.) THE appellant/plaintiff filed O. S. No. 2595 of 1981 on the file of the Fourth Additional Judge, City Civil Court, Madras, to direct the respondents/ defendants to specifically perform the agreement to sell dated 18. 7. 1974 and execute and register the sale deed in favour of the appellant conveying the B schedule property free from all encumbrances and for possession of the ground floor of the B Schedule property.

(2.) THE appellant's case in brief is as follows: the respondents are the absolute owners of the property bearing Door No. 68, G. N. Chetty Road , T. Nagar, Madras-17, more fully described in the A Schedule to the plaint. THE A Schedule property has an out-house, which is described in the B Schedule, with a total ground area of one ground and 800 sq. ft. which is an independent property. THE entire A schedule including the B Schedule property was subject to three registered mortgages, one in favour of Hindu Janopakara Saswatha Nidhi, dated 23. 12. 1967 the second in favour of Permanent General Benefit Fund Limited dated 5. 9. 1968 ad the third one in favour of one V. Kamala, dated 4. 4. 1974. According to the appellant, the respondents approached her for the sale of the out-house described in the B Schedule with direct access to the property from G. N. Chetty road, free from encumbrances. THE appellant agreed for the purchase of the said property. THEreupon, both the appellant and the respondents entered into an agreement dated 18. 7. 1974 for the purchase of B Schedule property for a sale consideration of Rs. 62,500. As and by the terms of the agreement, the appellant on various dates paid a total sum of Rs. 26,200 as part of the sale price and advance. THE appellant was put in possession of the first floor of the premises in part performance of the agreement to sell dated 18. 7. 1974, on 2. 9. 1974.

(3.) BOTH the respondents have filed an additional written statement with a counter claim on 14. 4. 1980. According to them, by reason of breach of condition of the agreement, the respondents have suffered damages by way of interest from 18. 2. 1975 at 18% per annum amounting to Rs. 22,500 and that the appellant is liable to pay the said sum to the respondents by way of damages. According to the respondents, the appellants is liable to pay damages for use and occupation at the rate of Rs. 500 per month from the date of breach. However, the respondents restrict their claim for a period of three years to rs. 18,000. Thus, in all, the appellant is liable to pay Rs. 40,500 under both the claims. The value of the properties, lands and building has increased very much subsequently and the property is worth Rs. 1. 5 lakhs to Rs. 2 lakhs. The appellant is taking undue advantage of the rise in price in asking for specific performance of the agreement. The respondents further state that at the time when the sale agreement was entered into, the Finance Act permitted capital gains to be deposited in nationalised bank, which gave higher rate of interest and which also enabled the sellers to obtain loan on the said deposits. The said facility has been withdrawn and subsequently the sellers have to deposit the capital gains amount in Rural Bonds for seven years at the interest rate of 7% per annum without the facility of borrowing loan on the said deposits. This causes hardship to the respondents. This was not fore-seen at the time of agreement. The rate of capital gains tax is also increased.