R SUBBU Vs. B S KOLANDAISAMY

JUDGEMENT

(1.) THE defendant in O. S. No. 134 of 1988 on the file of the First Additional Court, Erode is the appellant in this First Appeal. The plaintiff filed the suit for specific performance of the agreement of sale, dated 28. 02. 1986.

(2.) THE suit was filed on the basis that the defendant who is the owner of the suit property which includes house and shop premises comprised in Door No. 10/40 and present Nos. 289a and 259 and subsequent new as Nos. 288 and 289 ward No. 8 situated in Bavani, Mettur Road, has agreed to sell the property to the plaintiff for a sale consideration of Rs. 2,00,000/- and executed an agreement of sale 28. 02. 1986. He has received Rs. 1,50,000/- from the plaintiff towards the part sale consideration agreeing to receive the balance consideration of Rs. 50,000/- on or before three years from the date of agreement and execute a sale deed. According to the plaintiff ever since the date of agreement he has been ready and willing to pay the balance sale consideration, but the defendant was evading. The plaintiff has issued a legal notice on 08. 10. 1987 calling upon the defendant to execute the sale deed after receiving the sale consideration and the said notice was received by the defendant on 12. 10. 1987 and the defendant has chosen to make false allegation in the reply notice dated 15. 10. 1987. Hence, the suit filed for specific performance of the agreement of sale dated 28. 02. 1986.

(3.) THE defence raised by the defendant was that in January 1986 he approached the plaintiff for a loan of Rs. 1,50,000/ -. The plaintiff has given an amount of Rs. 50,000/- initially and obtained a promissory note from the defendant. Thereafter, on 28. 02. 1986 the plaintiff has advanced another amount of Rs. 1,00,000/- and gave a discharge for earlier promissory note for Rs. 50,000/- by treating the total amount of Rs. 1,50,000/- as a loan. It is also the further case of the defendant that the interest for the said amount of Rs. 1,50,000/- at the rate of Rs. 1. 60 per hundred per month was calculated, which was Rs. 2,400/- and the plaintiff has permitted the defendant to repay the amount in 36 installments at the rate of Rs. 4,166. 75 towards principle and Rs. 2,400/- as interest. In fact the said interest was arrived at 36 percent per annum. Not satisfied with the same he has also obtained documents relating to the suit property from the defendant as a further security and it was for that purpose the agreement was obtained. According to the defendant, even though an agreement was obtained by the plaintiff on 28. 02. 1986 which was not intended for the purpose of sale of the property, it was only a security for the purpose of repayment of loan of Rs. 1,50,000/- and the defendant has never intended to sell his property at all.