PARAMASIVAM Vs. RAJA GANAPATHI FINANCE & INVESTMENTS, LTD.

JUDGEMENT

(1.) The defendants 3 and 4 in O.S.No.84 of 2000 which is transferred and re-numbered as OS. No.25 of 2004, are the appellants. The suit was filed by the first respondent, seeking refund of advance of a sum of Rs.5,75,000/- paid by the first respondent on various dates, pursuant to an agreement of sale dated 13.12.1996.

(2.) According to the plaintiff, the defendants 1 and 2 had entered into an agreement of sale, agreeing to sell about 2 acres and 94 cents of land in Amony ChellapillaiKuttai Village, Omalur Taluk, Salem District, for a consideration of Rs.6,00,000/- per acre. Pursuant to the said agreement, it is contended that the plaintiff/first respondent paid a sum of Rs.2,00,000/- on the date of agreement. The agreement was to be performed by 30.09.1997. Subsequently, the defendants had received the following amounts on various dates: Rs.2,00,000/- on 14.12.1996; Rs.20,000/- on 08.03.1997; Rs.1,00,000/- on 03 04.1997; a sum of Rs.10,000/- on 29.09.1997; a sum of Rs.10,000/- on 30.09.1997 and Rs.35,000/- on 07.10.1997. Thus, in all, according to the plaintiff-company, they have paid a sum of Rs.5,75,000/- as advance under the agreement. Since the defendants did not come forward to execute the sale deed, but started digging the land in such manner that would reduce the value of the land, the plaintiff was constrained to file a suit in O.S.No.44 of 1998 for permanent injunction, restraining the defendants from carrying on digging work and committing the acts of waste in the property. It is also alleged that the defendants did not disclose an encumbrance by way of mortgage by deposit of title deeds with one Kandasamy, at the time of the agreement.

(3.) It is also contended that on 09.09.1997, the first defendant had executed a sale deed in favour of the second defendant, who is the wife of the first defendant. Therefore, the plaintiff issued a legal notice on 02.11.1999, seeking refund of the advance amount of Rs.5,75,000/- with interest at 12% per annum. It is claimed that since the defendants 1 & 2 did not refund the advance, the suit came to be filed on 09.12.1999. Thereafter, it appears that the defendants 1 and 2, alienated the property in favour of the defendants 3 and 4 and accordingly, they were impleaded as defendants in the suit. The defendants 1 & 2 remained ex-parte. The defendants 3 & 4 contested the suit, claiming that the agreement itself is false. The claim of the plaintiff that the first defendant has received a portion of the advance after the sale deed dated 09.09.1997, executed by the first defendant in favour of the second defendant, is false. The readiness and willingness of the plaintiff is also denied. It is also contended that the suit sale agreement has been created and it is not binding on the defendants 3 & 4. It is also contended that the defendants 3 & 4 are the bona fide purchasers of a value without notice of earlier agreement.