K KANDASAMY Vs. A PALANISAMY

JUDGEMENT

(1.) The plaintiff in the original suit O.S.No.12 of 2002 is the appellant in the appeal. He filed the said suit against the respondent herein for the relief of specific performance of an Agreement for sale dated 26.06.1995. After trial, the trial Judge dismissed the suit without cost by a judgment and decree dated 06.11.2002. The said decree of the trial court is challenged in the appeal suit. For the sake of convenience the parties are referred to in accordance with their ranks in the suit and at appropriate places, if necessity arises, their ranks in the appeal will also be indicated.

(2.) The appellant herein/plaintiff filed the suit praying for the relief of specific performance based on the plaint averments, which are in brief, as follows: The respondent/defendant is the owner of the suit property. He entered into an agreement with the appellant/plaintiff on 26.06.1995 for the sale of the suit property to the plaintiff for a sum of Rs.4,00,000/ - and received on the same day a sum of Rs.3,80,000/ - as advance and part of sale consideration leaving a balance sale consideration of only a sum of Rs.20,000/ -. It was agreed that the plaintiff could pay the balance amount of sale consideration within 15 months from the date of agreement and get the sale deed executed and registered in his name. Right from the date of agreement, the plaintiff was ready and willing to perform his part of the obligations under the suit sale agreement. On the other hand, the defendant was evading execution of the sale deed and was even trying to sell the property to third parties. Hence the plaintiff issued a lawyer's notice on 15.06.1996 calling upon the defendant to execute a sale deed in accordance with the agreement for sale after receiving the balance amount of sale consideration. Since the demand was not complied with the plaintiff was constrained to file the suit for specific performance.

(3.) The respondent/defendant resisted the suit denying the plaint averments and raising other contentions in the written statement which are, in brief, as follows: The defendant did not agree to sell the suit property to the plaintiff for a sum of Rs.4,00,000/ -. He did not receive Rs.3,80,000/ - as advance and part sale consideration on 26.06.1995, the date of alleged execution of the suit agreement for sale. The suit agreement for sale dated 26.06.1995 was not executed by the defendant. The plaint averments regarding the plaintiff's readiness and willingness are false as there shall be no question of the plaintiff being ready and willing to complete the sale transaction, since there was no agreement at all. The suit agreement seems to have been fabricated by forging the signature and thumb impression of the defendant. The signatures and thumb impression found therein are not that of the defendant. The defendant has got two sons. Due to misunderstanding, the elder son Selvaraj has been estranged and he is living separately. While leaving the house of the defendant, his elder son Selvaraj took away the original title deeds of the defendant relating to the suit property and other parent documents. The plaintiff is a partner in Poomagal Finance with which Selvaraj, the elder son of the defendant was having dealings. The suit agreement should have been fabricated forging the signature and thumb impression of the defendant either with the intention of recovering the debt due from Selvaraj or in collusion with the said Selvaraj. Had the agreement been true and genuine, the plaintiff would have taken steps for performance of the same within the period stipulated in the agreement. He failed to do so and filed the suit after the expiry of the said period and the same will show that the agreement is not genuine. There is no cause of action for the plaintiff to file the suit and the one stated in the plaint is false. Hence, the suit should be dismissed with exemplary cost.