S SUNDARESAN Vs. S SANTHANAM

JUDGEMENT

(1.) THE plaintiff who has failed before the courts below has preferred this Second Appeal.

(2.) THE gist of the case is as follows: " THE plaintiff entered into two agreements with the first defendant on 21.8.1985 to purchase 3/40th undivided share in the suit property for a sum of Rs. 16,875/= by paying a sum of Rs. 11,000/= as advance and another agreement on the same date to construct the flat in the 2nd floor of the suit property with a sale consideration of Rs. 1,33,125/= less the advance amount. According to the plaintiff, he was always ready and willing to perform his part of the contract, namely he was ready with the money for making the balance payment, but the first defendant had delayed the execution of the sale deed stating that there is a delay in getting the Income-tax clearance by the original owner from the Department. When the plaintiff approached him repeatedly by several modes, on 11.5.1987 the first defendant wrote a letter to the plaintiff stating that if the plaintiff is willing to pay 50% of the balance sale consideration, he can take possession of the flat. THE plaintiff came to know that even on 7.4.1987 and 10.4.1987 the first defendant has sold the other undivided shares to the other purchasers and executed sale deeds. THE first defendant also demanded Rs. 1,75,000/= as sale consideration or otherwise the plaintiff can take back his advance amount with 24% interest from him. THE plaintiff issued a legal notice on 27.6.1987 for which the defendant did not send any reply, nor he executed the sale deed. Hence the plaintiff filed a suit for the relief of specific performance of the agreement.

(3.) LEARNED counsel for the appellant also argued that the very first word in Ex.A.1 proceeds as if the original owner represented by Power of Attorney, Sundaresan, the first defendant herein. The role of an agent has no personal liability under Section 230 of the Indian Contract Act, 1872. The Section only says in the absence of the contract, an agent cannot personally enforce the contract entered into by him on behalf of the principal, nor he is personally bound by it. Hence the suit itself is liable to be dismissed for non joinder of necessary party, namely the original owner. It is also submitted that the seller is no more.