S GEETHA SRINIVASAN Vs. B K NARAYANA CHETTIAR

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and Judgment in O.S.No.4695/1985 on the file of VII Assistant City Civil Court, Chennai. The plaintiff who was granted an alternative relief against her parents D1 and D2 by the trial Court, has preferred this appeal.

(2.) THE short facts of the case of the plaintiff in the amended plaint are as follows: THE plaintiff had advanced a sum of Rs.30,000/- to wipe off the debts borrowed by the deceased first defendant and the second defendant for purchasing the property NO.4-A, Thiruvengadam Street, Adyar, Madras-20 . THE first defendant( since deceased) and the second defendant have executed a promissory note for Rs.30,000/- on 9.10.1982 agreed to repay the amount at the rate of 18% interest per annum. On 10.10.1982, the deceased first defendant and the second defendant also entered into an another agreement in which they agreed to repay the amount within two years and if the defendants fail to repay the amount within two years the option is given for the plaintiff to purchase the property at the prevailing sub registration value of the property within one year ie., before 10.10.1985. THE deceased first defendant and the second defendant have borrowed some amount from Mr. Narayanan on heavy terms for purchasing the suit property and since they wanted to discharge the amount and since they could not pay the huge interest, they approached the plaintiff for the loan of Rs.30,000/- to discharge the loan borrowed from the said Narayanan. THE plaintiff herself sold her jewels and also from her savings raised the funds and gave the same to the deceased first defendant and the second defendant. THE plaintiff requested some amount to be paid to her since her husband has to meet his business requirements. However, the deceased first defendant and the second defendant have promised to pay the amount by the end of the second year ie., during the year 1984 October. Even after that also the money was not forthcoming from the defendants. THE plaintiff states that the defendants were heavily indebted to various persons and they could not repay the borrowed amount and during the month of March 1985 the plaintiff approached the defendants either to sell the house to them as agreed or to pay the money back. During the end of May 1985, it was agreed between the plaintiff and the defendants 1 and 2 that the plaintiff shall purchase the house at the rate of Rs.50,000/- undertook to pay Sub Registrar's valuation deducting the principal amount and interest whatever comes at the time of sale and the balance amount shall be paid to the defendants 1 and 2 during the month of Tamil Avani since the plaintiff requested some time to raise funds to execute the sale deed since they have got time till 10.10.1985 as per the agreement. While so, the plaintiff came to know that there was some suspicious movement were taken place in the first and second defendants' house ie., removing their movables to some other place on 20th June 1985. On enquiry, she came to know that the defendants 1 and 2 are trying to sell the property to some third party surreptitiously and the plaintiff went and enquired the defendants 1 and 2 about their move, the defendants 1 and 2 picked up quarrel with the plaintiff and refused to answer the question raised by the plaintiff nor did the defendants disclose the name of the prospective buyer. However, the plaintiff came to know through their counsel, as to who is dealing with the property. On 21.6.985, the plaintiff immediately gave a telegram to the counsel stating that the defendants 1 and 2 are heavily indebted to the plaintiff and not to enter in to the transaction and they have got right to purchase the property. However, defendants 1 and 2 are trying to alienate the property in order to defeat the just and right claim of the plaintiff. Since there is no time for the plaintiff to issue the lawyer's notice, the plaintiff sent a telegram on 22.6.1985 to the defendants 1 and 2(1st defendant since deceased) not to enter in to the transaction to any third party to sell the property. It was agreed between the plaintiff and the defendants 1 and 2 that the plaintiff shall purchase the house during the month of Avani(Tamil) 1985 because Adi Tamil month is intervening. THE plaintiff has got right to purchase the property till 10.10.1985 as per agreement entered in to between the plaintiff and the defendants. But contrary to the said agreement, the plaintiff came to know that the sale deed has been prepared and that at any moment they may execute the sale deed in favour of the third party. Further the plaintiff has got right by virtue of the contract entered in to between them on 10.10.1982. THE plaintiff is always ready and willing to purchase the property and perform her part of contract since the defendants 1 and 2 who have deviated and dishonestly trying to dispose of the property to third parties. THE plaintiff submits that on several occasions, the plaintiff approached the defendants 1 and 2 either to execute the sale or return back the money with interest. Even though, the defendants 1 and 2 have agreed to execute the sale deed, they have failed and neglected to perform their part of the contract nor did they return the amount of Rs.30,000/- with interest at 18% per annum in all the defendants 1 and 2 have to pay a sum of Rs.44,730/- if the contract is not performed and the sale deed is not executed. THE interest of the plaintiff is protected since she is the earliest agreement holder. THE plaintiff sent a telegram to the defendants 1 and 2 on 22.6.1985 calling upon the defendants 1 and 2 to refrain from selling the house since the plaintiff has got right to purchase the property and also without settling the plaintiff's claim they cannot sell the property to any third party. Hence the suit.

(3.) AFTER going through the rival contentions of the parties and their pleadings, the learned trial Judge has framed four issues and on the basis of oral and documentary evidence let in by both plaintiff and the defendants, has granted an alternative relief under Ex A1 promissory note and dismissed the suit in respect of relief for Specific performance of contract under Ex A2 sale agreement. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred this appeal.