P PANNEERSELVAN Vs. A BAYLIS

JUDGEMENT

(1.) THE appellant before this Court is the defendant in the Original suit in O. S. No. 1956 of 184 before the sub-Court, Madurai. The present L. P. A. is against the judgment and decree of the learned single Judge in A. S. No. 600 of 1987, confirming the judgment and decree passed in O. S. No. 156 of 1984 on the file of the sub-Court, Madurai. The parties will be referred to as they are arrayed in the Original suit.

(2.) THE plaintiff has filed the suit for spcific performance of contract to execute the sale deed in respect of 1 acre 30 cents in r. S. No. (Paras 50, 51) (Paras 50, 51) (Paras 50, 51)Paras 50, 51)174/5 in Uthagudi Village in madurai District or in the alternative, for recovery of a sum of Rs. 1,00,000/-with 18% interest from the defendant.

(3.) THE case of the plaintiff is as follows : the plaintiff and the defendants were good friends. The defendant was engaged in development and sale of land and he is the owner of the land in R. S. No. 174/4 measuring 60 cents, R. S. No. 174/5 measuring 1 acre 30 cents in Uthangudi Village, madurai District. The defendant intended to purchase further extent of 4 acres 15 cents from the same village adjacent to the abovesaid lands in R. S. No. 175/2 measuring 69 cents, R. S. No. 174/2 measuring 1 acre 3. 1 (Cents, R. S. No. 175/1 measuring 74 cents, R. S. No. 174/3 measuring 85 cents and R. S. No. 173/5 measuring 58 cents, for which, some advance have been already paid and for the execution of the said sale, the defendant required further funds. In view of the above, the defendant offered to sell 1 acre 30 cents either out of the land bearing r. S. No. 174/5 or an equal extent of 1 acre 30 cents out of 4 acres 15 cents which was proposed to be purchased and therefore, the defendant wanted the plaintiff to pay the entire sale price of Rs. l,00,000/ -. The plaintiff further states that a sum of Rs. l,00,000/- as agreed was paid by the State bank of India Cheque dated 10-10-1983 and the defendant received the same and encashed the cheque. It is also stated that the defendant represented to the plaintiff that the land to an extent of 4 acres 15 cents would be purchased within a few months and the sale deed will be executed in favour of the plaintiff within a period of three months and that the defendant has executed an agreement in favour of the plaintiff on 10-10-1983. However, since the defendant did not purchase 4 acres 15 cents, the plaintiff called upon the defendant to execute the sale deed in respect of R. S, No. 174/5 measuring 1 acre 30 cents, since he had already paid the full sale consideration of Rs. l,00,000/- to the defendant. The defendant was postponing the execution of the sale deed on some pretext or the other. That on 14-12-1983, the defendant refused to execute the sale deed in favour of the plaintiff in a personal meeting held on that day. The plaintiff was always ready and willing to get the sale deed executed in his favour and that the defendant was evading the sale. Therefore, the plaintiff issued the lawyer's notice to the defendant on 16-12-1983 and a paper publication was made on 17-12-1983. The defendant sent a reply dated 27-12-1983 refuting the contentions of the plaintiff and the rejoinder was sent by the plaintiff on 5-1-1984. Hence, the plaintiff was constrained to file the suit for specific performance of the contract of sale. The plaintiff also made a prayer that in the event of the Court finding that the plaintiff was not entitled to the specific performance of the contract, the plaintiff pleaded that he was entitled to a sum of Rs. 1,00,000/- paid by him to the defendant. The plaintiff also prayed for interest @ 18% by way of damages to him from 10-10-1983 on the abovesaid sum of Rs. l,00,000/ -. The schedule of property as per the plaint is R. S. 174/ 5 measuring 1 acre 30 cents in Madurai district, Madurai North Taluk, Uthangudi village.