S. LAKSHMI Vs. L. KUPPUSAMY

JUDGEMENT

(1.) The defendant in O.S. No. 39 of 2013 on the file of the learned Principal District and Sessions Court, Dharmapuri is the appellant in this appeal. The Plaintiff/respondent herein has filed the said suit for specific performance to direct the defendant/appellant to receive the balance sale consideration from him and to execute the sale deed in his favour in respect of the suit schedule property or in the alternative to direct the defendant/appellant herein to pay the advance amount of Rs.36,01,000/- with 24% interest and for costs.

(2.) The case of the plaintiff/respondent herein is the defendant/appellant herein is the owner of the suit schedule mentioned property and she agreed to sell the suit schedule mentioned property to him. The Plaintiff has also entered into an agreement of sale dated 25.06.2010, Ex. A-1, with the defendant/appellant herein whereby the defendant/appellant agreed to sell the suit schedule mentioned property in his favour for a total sale consideration of Rs.40,01,000/-. At the time of execution of the agreement, the defendant/appellant received a sum of Rs.5,00,000/- from the plaintiff. As per the agreement, the entire sale transaction has to be completed within 120 days from the date of execution of the agreement of sale. According to the plaintiff, on 24.08.2010, he paid Rs.15,00,000/-, another sum of Rs.14,01,000/- was paid on 210.2010 and subsequently on 25.10.2010, he paid another sum of Rs.2,00,000/- to the defendant. Thus, totally, the plaintiff has paid a sum of Rs.36,01,000/- out of total sale consideration of Rs.40,01,000/-. According to the plaintiff, for having received the aforesaid amount, the defendant also made endorsement in the agreement of sale itself. After one week, the plaintiff was ready with the balance sale consideration of Rs.4,00,000/- at Karimangalam Sub-Registrar Office. At that stage, the plaintiff came to know that one Mohan has filed a suit in O.S. No. 9 of 2008 on the file of Sub Court, Dharmapuri in respect of the suit schedule mentioned property for partition and consequential permanent injunction in which the Sub Court, Dharmapuri has also granted an order of temporary injunction. The Plaintiff also came to know that the defendant/appellant herein is also arrayed as one of the defendants in the said suit in O.S. No. 9 of 2008 and therefore the Sub-Registrar has refused to execute the sale deed presented by the defendant/appellant in favour of the plaintiff/respondent herein. In such circumstances, the plaintiff called upon the defendant to clear the encumbrances and to execute the sale deed in his favour, but the defendant refused to do so. On the other hand, the defendant issued a notice dated 06.05.2011 to the plaintiff with false and untenable allegations, hence, he has filed the suit.

(3.) The suit was resisted by the defendant by filing a written statement denying the averments contained in the plaint. According to the defendant, the plaintiff was not ready and willing to perform his part of the contract. There was no litigation pending in respect of the suit property. Since time is the essence of the contract and the plaintiff failed to perform his part of the contract within the time stipulated, the defendant has issued the notice dated 06.05.2011 thereby cancelling the agreement of sale entered into with the plaintiff. Thus, the defendant sought for dismissal of the suit.