KAMALATHAL Vs. K VENKATACHALAM ALIAS VENKATESAN

JUDGEMENT

(1.) AGGRIEVED by the judgment and decree passed by the district Judge, Coimbatore in A. S. No. 184 of 1996, dated 12. 12. 1997 confirming the judgment and decree dated 16. 7. 1996 passed in O. S. No. 122 of 1989 by the subordinate Judge, Coimbatore, the de"fendants have come forward with this second appeal.

(2.) THE facts leading to the filing of this ap"peal are as follows: a. THE defendants 1 to 3, who are the own"ers of the schedule mentioned properties, en"tered into an agreement of sale with the fourth defendant Ponnusamy on 2. 6. 1982. He paid a sum of Rs. 20,000/- as advance on the date of the agreement. Subsequent to the agreement, one minor Vijeyen, who is the son of the third defendant, represented by his mother Poovathal has filed a suit in forma pauperis in O. P. No. 170 of 1982, claiming partition of the suit properties into two shares, which is pend"ing on the file of the Subordinate Court , Coimbatore as O. S. No. 97 of 1985. b. Despite repeated requests from the fourth defendant, as the defendants failed to form a layout and approval for the said prop"erty, he assigned his right of specific performance to the plaintiff on 15. 12. 1984 on receiv"ing a sum of Rs. 20,000/- from the plaintiff. Even after the specific requests of the plaintiff and was willing and ready to execute the sale deeds as the defendants failed to cooperate with the plaintiff in getting the approval of the plan and execute the sale deed, the plaintiff has come forward with the said suit for specific performance.

(3.) ON consideration of factual and legal as"pects of this case, this Court framed following substantial questions of law, while admitting this second appeal. a. Whether the Courts below are correct in law in decreeing the suit for specific perfor"mance without considering the delay or laches on the part of the plaintiff to perform his part of the contract in view of the decision K. S. Vidyanadam v. Vairavan reported in AIR 1997 SC 1751: (1997) 3 SCC 1 b. Whether the Courts below are right in law in coming to the conclusion that the suit filed by the plaintiff is not barred by limitation as pro"vided under Article 54 of the limitation Act?