GOWRAMMAL ALIAS GOWRI Vs. V PECHIMUTHU

JUDGEMENT

(1.) THIS second appeal is by the defendant in O. S. No. 447 of 1979, on the file of Second Additional Subordinate Judge's Court, Coimbatore .

(2.) AS per Ex. A-2, dated 2. 5. 1973, the respondent herein executed a sale deed in respect of the plaint schedule property in favour of the appellant herein. The sale was for a consideration of Rs. 20,000. It is seen that on the date of sale, the respondent herein was indebted to some persons and that necessitated the execution of the sale. A stranger has obtained a decree against the plaintiff/ respondent, and there was an understanding between the plaintiff and the defendant that the appellant will discharge the debt which as on that day came to Rs. 15,005. There was also some other payment to be made. Out of the sale consideration of Rs. 20,000, Rs. 15,005 was earmarked for discharging the decree debt, and out of the balance, an amount of rs. 2,500 was to be paid to one Palaniammal, for getting vacant possession of the premises, and it is said that the balance amount was agreed to be paid at the time of sale. It is averred by the plaintiff that the defendant did not pay the amount of Rs. 2,495 as promised, and the expenses for registration was also refused to be met by the defendant on the ground that the property will be reconveyed to the plaintiff. So the plaintiff had to execute a promissory note for a sum of Rs. 3,000, and on that basis, the defendant met the expenses for stamp and registration of the sale deed Ex. A-2. Subsequent to Ex. A-2, a registered agreement was entered into between the plaintiff and the defendant on 4. 5. 1993 as evidenced by Ex. A-3, that the property will be reconveyed to the plaintiff, on the plaintiff paying a sum of Rs. 20,000. An advance amount of rs. 10 was also paid, and the balance of Rs. 19,990 was to be paid by the plaintiff as per agreement Ex. A-3. It is said that there was a time-limit for reconveyance, i. e. , it is to be exercised on or before 3. 4. 1979. Before the expiry of the period, the plaintiff requested the defendant to execute the reconveyance, A reply was sent by the defendant stating that even though a sum of Rs. 15,005 was earmarked for discharging decree debt, he has to pay more and, therefore, the plaintiff was bound to pay the excess amount paid by the appellant/ defendant, for getting sale. For the said reply, plaintiff retorted by saying that the defendant has not paid the consideration of Rs. 2,495 and the promissory note debt of Rs. 3,000. According to him, he is liable to pay only the balance amount of Rs. 19,990. He wanted to enforce Ex. A-3 agreement by passing a decree after ascertaining the amount payable to the defendant, appellant herein.

(3.) AT the time of admission of this second appeal, the following substantial of law has been framed: ' Whether on the facts and in the circumstances of the case, the decree for specific performance is sustainable.'