SANTHAMANI Vs. USHA

JUDGEMENT

(1.) Aggrieved over the decree and judgment of the learned trial Court decreeing the suit filed for specific performance in respect of the common undivided ? share of the defendant, the present appeal came to be filed by the defendant. For the sake of convenience, the parties are arrayed as per their own ranking before the trial Court.

(2.) The brief facts of plaintiff's case is as follows:- It is the case of the plaintiff that the suit property originally belonged to the father of the defendant Avinashi Gounder by self acquisition. He had a registered settlement deed dated 21.09.1955 conveying absolute title and possession of the suit property to his wife Angammal. Thereafter the said Angammal, died intestate on 03.05.2005 leaving behind her the defendant as the sole surviving legal heir. By making such representation, the defendant has offered to sell the suit property to the plaintiff and executed a sale agreement dated 13.07.2005 for a total sale consideration of Rs.15,23,800.00 and received a sum of Rs.2.50 lakhs as advance towards part payment of the agreed sale consideration. Even before the agreement, the plaintiff has verified the encumbrance and obtained encumbrance certificate for the suit property. It is also agreed in the agreement that the plaintiff on paying the balance amount of Rs.12,73,800.00 within 90 days the defendant is bound to execute the sale in favour of the plaintiff.

(3.) Although the plaintiff had means and had capacity to pay the balance sale consideration, period of 90 days was mutually agreed to satisfy about her absolute tittle from all encumbrances, defects in title if any. The defendant had also issued a publication in Dhina Thanthi on 1.8.2005 and also lodged a complaint on 9.8.2005 with regard to the loss of the original settlement deed. On 2.9.2005, when the plaintiff had been in the Sub-Registrar Office, Avinashi, to ascertain the guideline value of the suit property to purchase the stamp paper and to draw sale deed, she was shocked and surprised to know that one Karuppathal claiming to be the half-sister of the defendant has filed a suit for partition in O.S.No.210 of 2005 on the file of the District Munsif Court, Avinashi as against the defendant and the Sub-Registrar of Avinashi on 16.08.2005. The plaintiff also came to know that interim application also filed against the defendant for restraining her from alienating the suit property and against the Sub-Registrar, Avinashi, restraining him from registering the sale deeds in respect of the suit property. The plaintiff had immediately approached the defendant and sought for explanations as to why she has concealed and suppressed about the said case. But the defendant had given vague excuses and had sought some time to furnish details and to solve the dispute amicably and to convey absolute title and possession of the suit property free of all encumbrances, claims and defects in title. Thereafter, the defendant has issued a legal notice on 23.9.2005 suppressing all the material facts and truths more particularly about the pending partition suit. In the legal notice sent by the defendant on 23.9.2005 and 5.10.2005 she had falsely contended that the sale price agreed between the parties is only Rs.15,50,000.00 and not Rs.15,23,800/. This was also properly replied by the plaintiff on 10.10.2005, furnishing with them a copy of the Term Deposit Advice dated 10.10.2005 for Rs.12,73,800.00 issued by the State Bank of India, Commercial Branch, Tiruppur. In fact, prior to the issuance of legal notice by the defendant, the defendant has already appeared before the Court on 23.9.2005 in the partition suit filed by her half-sister. The plaintiff was always ready and willing to perform her part of contract. In fact the defendant had been concealing and suppressing about the previous suit for partition. The plaintiff was always willing to purchase the suit property. The conduct of the defendant clearly shows that the defendant and the plaintiff in O.S.No.210 of 2005 had brought about a collusive suit to defeat the legitimate right of the plaintiff. In the above suit the defendant has also filed a memo giving undertaking not to sell the suit property before the disposal of the suit. In the above suit O.S.No.210 of 2005 it is admitted that this defendant is entitled to ?rd share in the suit property. Since there is rival claim with regard to the suit property, the plaintiff seeking specific performance in respect of the admitted common ?rd share of the suit property without prejudice to the rights of said Karuppathal. The plaintiff was ready to pay the remaining sale consideration of Rs.7,65,867.00. Besides the said amount, the plaintiff was ready to deposit the remaining sale consideration of Rs.5,07,933.00 towards the remaining common ?rd share value of the suit property as and when the Curt directs. The plaintiff is the managing partner of a reputed hosiery garments knitting company under the name and style "Thillainathan Textiles" and she is also the proprietrix of a business concern viz. M/s Gowri Hosiery Mills at Tiruppur. She is also managing around 12 manufacturing units in and around Tiruppur and the business volume turnover every year is approximately around Rs.20 Crores. She had been looking out for lands like that of the suit property for a very long time for her future business expansion like construction of Factories and Mills with approach roads to National Highways at Avinashi to Coimbatore Road for easy accessibility of labours and infrastructure. The suit property found to be suitable for the future business expansion of her industries. Hence she had entered into a contract with the defendant to execute a sale deed in respect of ?rd share of the defendant as admitted by Karuppathal in O.S.No.210 of 2005. The plaintiff further submits that being the bona fide agreement holder she is entitled for the relief of specific performance. However, if the Honourable Court for some reason comes to a conclusion that she is not entitled to the relief of specific performance, she is entitled for the alternative relief of refund of the advance amount of Rs.2,50,000.00 together with interest at 18% per annum from the date of agreement. She is also entitled to a charge over the suit property till satisfaction of the decree.