SYED ABDUL GANI Vs. SAJJIDA BEGUM

JUDGEMENT

(1.) This civil suit is filed by the Plaintiff to pass a judgement and decree against the Defendants:-

(2.) The case of the Plaintiff, in a nutshell, as set out in the plaint is as follows:-

(3.) In the written statement filed by the 2nd Defendant, which was adopted by the 1st Defendant, the 2nd Defendant admitted the agreement of sale dated 11.12.2007, entered into between the 1st Defendant and the Plaintiff and also the fact of payment of advance sale consideration of Rs. 2 lakhs by the Plaintiff to the 1st Defendant. It is further stated in the written statement that the Plaintiff was the tenant in the 1st Floor Rear Portion Flat and was paying a monthly rent of Rs. 6000/-. It has been specifically stated that the time was the essence of the contract of the agreement and since the Plaintiff did not complete the sale transaction within 90 days, the agreement had become frustrated. Consequently, the relationship of the vendor and the purchaser between the 1st Defendant and the Plaintiff had ceased to exist. Subsequently, the Plaintiff received a hand loan of Rs. 11 lakhs for his business purposes and agreed to pay the same with a profit of Rs. 2 lakhs and as security, he had issued the three cheques for Rs. 5 lakhs, Rs. 4 lakhs and Rs. 4 lakhs, dated 1.7.2008, 15.07.2008 and 30.7.2008 respectively. Since the Plaintiff did not repay the hand loan, the 2nd Defendant deposited the cheques into the bank for encashment and they were dishonoured with an endorsement 'stop payment'. There was also insufficient balance in the account of the Plaintiff and consequently, criminal proceedings under Section 138 of the Negotiable Instruments Act has been initiated in CC.No.15320 of 2008 before the 13th Metropolitan Magistrate, Egmore, Chennai and the same is pending. The 2nd Defendant denied that the said cheques were issued towards the sale consideration. The time fixed for concluding the sale agreement had expired as early as on 11.3.2008 and the cheques were issued only in the month of July 2008. The 2nd Defendant further denied the payment of Rs. 4,80,000/- by cash by the Plaintiff. The 2nd Defendant specifically denied that part of sale consideration of Rs. 19,80,000/- as stated in the Plaint has been paid by the Plaintiff towards the sale consideration. The suit has been filed only subsequent to the proceedings under Section 138 of the Act. The 2nd Defendant did not receive the first notice issued by the Plaintiff and to the second notice, he had sent a suitable reply, denying the liability towards the sale agreement. The Plaintiff is a wilful defaulter in payment of rent and consequently, eviction proceedings were also contemplated against the Plaintiff. Since the time was the essence of the agreement, the Plaintiff not having adhered to the time limit of 90 days, cannot seek the relief of specific performance of the agreement, which had already lapsed. In such circumstances, this civil suit is liable to be dismissed.