MARUDAKUTTI Vs. K ARUMUGHAM

JUDGEMENT

(1.) THE defendant is the appellant. THE suit is for specific performance of the agreement, dated 18. 06. 1985, under which two acres of land were agreed to be sold for Rs. 1,04,000/-, each, total sale consideration being rs. 2,08,000/ -. Rs. 50,000/- was paid in advance. 10 months time was fixed for performance. Under the agreement the defendant should survey the property, plant the stones and also obtain encumbrance certificate for a period of 30 years. 10 months period expired on 18. 04. 1986. Ex. A. 3, endorsement was made on 21. 04. 1986, extending the period for performance to 20. 07. 1986. In the meantime, on 28. 04. 1986, two sale deeds were executed by the defendant in favour of the respondents, Ex. A4 and Ex. A. 5, under which one acre in aggregate was sold to the plaintiffs. THEreafter, under Ex. A. 6, notice, the plaintiffs called upon the defendant to perform his part of the agreement and execute the sale deed in respect of the remaining one acre. To this, a reply was sent on 12. 07. 1986, under Ex. A. 7, stating that the amount specified under Ex. A. 6 does not represent the actual amount to be paid and that out of the advance of rs. 50,000/- and on 18. 06. 1985, the date of Ex. A. 1, Rs. 25,000/- was adjusted in the sale consideration for Ex. A. 4 and Ex. A. 5 and therefore, only Rs. 25,000/-remained as advance with the defendant and on that basis, the balance sale consideration must be paid. THEreafter, the suit was filed immediately by the plaintiff, expressing his readiness and willingness and specifically stating in paragraph 8 that entire consideration has been paid for the two sale deeds, ex. A. 4 and Ex. A. 5 " but without adjusting the advance of Rs. 50,000/- given to the defendant on 18. 06. 1985. "

(2.) THE defendant in their written statement had specifically stated that the plaintiffs were not having sufficient funds to purchase the entire two acres and therefore, they wanted sale deeds to be executed for one acre, for which they also adjusted a sum of Rs. 25,000/-, from out of the amount paid as advance, under agreement, dated 18. 06. 985 and therefore, after calculating the amount paid and the amount adjusted, the defendant said that what is due from the plaintiffs towards the sale consideration is Rs. 1,08,000/- and not Rs. 54,000/-, as claimed by the plaintiffs. THE written statement also specifically alleged suppression of material facts and therefore, claimed that the plaintiffs were not entitled to specific performance of the contract.

(3.) THE learned counsel for the respondents, on the other hand would submit that the court below was satisfied with the readiness and willingness. While it is true that there was an adverse finding against the respondent, the adverse finding was not based on the materials on the record and therefore, that the finding is erroneous. THE learned counsel, then read out the recitals in Ex. A. 4 and Ex. A. 5, which is to the effect "18. 06. 1985k; TAMIL Rs. 10,875/- (Ex. A. 4) and Rs. 14,125/- (Ex. A. 5 ). THE learned counsel submitted that the witnesses in Ex. A. 4 and Ex. A. 5 are totally different from the witnesses in Ex. A. 1. THErefore, when the recitals in the document clearly show that these amounts were paid before the persons, who had signed as witnesses in Ex. A. 4 and Ex. A. 5, who are not witnesses in Ex. A. 1, then the only conclusion that can be drawn from them is that the amount of rs. 50,000/- that was paid before the witnesses in Ex. A. 1 was not adjusted by the plaintiffs, but on the other hand, without adjusting that, they had given entire consideration for Ex. A. 4 and Ex. A. 5 separately.