RAMASWAMY Vs. S. VENUGOPAL AND OTHERS

JUDGEMENT

(1.) Plaintiff in O.S.No. 743 of 1979 on the file of Subordinate Judge, Coimbatore, is the appellant in Second Appeal No. 1171 of 1983. He filed the said suit for specific performance. 8th defendant therein is the appellant in Second Appeal No. 970 of 83. Since both the second appeals arise out of the suit O.S.Mo. 743 of 1979, the same can be disposed of in a common judgment.

(2.) The case of the plaintiff as found in the plaint is briefly narrated hereunder:- The defendants 1 to 7 are the owners of the suit property. They originally owned the suit property together with adjacent portion of which a portion of the property was purchased by the plaintiff under a sale deed dated 1-12-1976 which was preceded by an agreement of sale executed by the 5th defendant for himself and on behalf of the defendants 1 to 4,6 and 7. The suit property was leased out to the 9th defendant, the father of the 8th defendant. The plaintiff took a portion of the suit property on tease from the said Palanisamy Gounder as a subtenant and he is running his power loom factory thereon. The remaining portion of the property was in possession and enjoyment of Die said Palaniswamy Gounder as a tenant under the defendants 1 to 7 and as the defendants 8 and 9, who are father and son have colluded and fraudulently got the sale deed, the 9th defendant also is made a party to the suit. The 9th defendant has also filed R.C.O.P. No. 34 and 36 of 1976 against the plaintiff for eviction on the ground of wilful default in payment of rent and also on the ground of subletting. The plaintiff with a view to get rid off possible litigation and to have a peaceful living in the suit property thought it fit to purchase the said property and with that intention he had entered into an agreement of sale with the defendants 1 to 7 and signed by the 5th defendant on his own behalf and on behalf of the defendants 1 to 4, 6 and 7 on 19-5-1977. The sale price of the suit property is Rs. 20,000.00, and an advance of Rs. 13,001/- was paid to the defendants 1 to 7, and out of the balance of sale price, a sum of Rs. 2,000.00 has to be paid at the time of the execution of the sale deed, and the remaining sum of Rs. 5000/ - has to be paid at the time when actual delivery of possession is given to the plaintiff. After agreeing to the said terms, the plaintiff also advanced a major portion of the sale price of Rs. 13,001.00. The time for completing the sale transaction is three months from the date of sale agreement. It is further averred that though the plaintiff was always ready and willing to purchase the said property, the same could not be done as the defendants wanted to deliver possession even on the date of sale and wanted to receive the entire sale price. There was some difficulty in obtaining permission from the Urban Land Tax authorities. With the consent of both parties the time for completing the contract was extended by 5th defendant on his own behalf and on behalf of the defendants 1 to 4, 6 and 7 on various dates, viz., on 17-8-77, 16-11-77, 16-2-78, 12-5-78, 14-8-78, 17-11-78 and on 14-2-79. Finally the sale has got to be executed on or before 19-5-79. It will be evident from the above periodical extension that time is not the essence of the contract. Though the plaintiff was always ready and willing to purchase the property, the defendants with some ulterior object has been postponing the same under some false pretext or other. The plaintiffs approached the defendants on many occasion and met the defendants 1 to 7 at Udamalpet and Tiruppur several times to complete the same. The plaintiff on 18-5-79 sent a telegram to the 5th defendant to honour the contract. Though the defendants have received the telegram, they did not send any reply. So the plaintiff has sent a lawyer's notice to the defendants 1 to 7 calling upon them to honour the contract by completing the sale transaction. Though the defendants have received the said notice, they have not chosen to send any reply for the same. After the notice, the plaintiff verified in the Registrar's Office and came to know that the defendants 1 to 7 have executed a sale deed in respect of the suit properties in favour of the 8th defendant as early as on 29-12-1978 with the connivance of the 9th defendant. In spite of the fact that the defendants have executed the sale deed as early as on 29-12-78 when the agreement of sale was in force, they have got the tenancy to make an endorsement in the agreement on 14-2-79 extending the period to complete the sale transaction by another 3 months. This will go to show the mala fide intentions of the defendants to cheat the plaintiff and make a fraudulent sale to defeat the legal rights of the plaintiff. As the 8th defendant has purchased the property with the full knowledge of the sale agreement, no title passes to him, and he has been added as a party to the suit so as to bind him by the decree that may be passed in this suit. If for any reason the Court comes to the conclusion that the plaintiff is not entitled to the specific performance of the contract of sale, the plaintiff will be entitled to the refund of the advance paid to the extent of Rs. 13,001.00 with interest over the said amount at the rate of 18 per cent per annum from the date of agreement till the date of realisation.

(3.) The first defendant filed a written statement wherein it is contended that he has never dealt with the plaintiff so far as the suit properties are concerned. The first defendant being an aged lady often asked his son to look after the property and to sell the same so that the family debt may be discharged. The alleged agreement dated 19-5-77 does not bind this defendant, since she is not a party to the said agreement. He never authorised the 5th defendant to enter into any agreement.