M A PALANISAMY Vs. M MYLSAMY

JUDGEMENT

(1.) The defendants 1 to 3 and 7 to 9 in OS No.511 of 2006, on the file of the Additional District Judge cum Fast Track Court No.2 Coimbatore are the appellants in the present appeal.

(2.) The said suit was filed by the 1st respondent in this appeal seeking specific performance of an agreement of sale dated 18.02.2002, entered into between the plaintiff, defendants 1 to 3 and their mother Marakkal @ Marudhathal. The sale price was fixed at Rs.2,05,000/- per acre and the extent of land agreed to be sold is 3 acre and 5 cents in Kuluvampatti Village of Coimbatore South Taluk, Coimbatore District. The plaintiff would further contend that the defendants have received an advance of Rs.2,00,000/- on the date of the agreement and a further advance of Rs.25,000/- on 07.09.2002 and Rs.20,000/- on 06.03.2004. While the payment made on 07.09.2002 was endorsed in the agreement itself the payment of Rs.20,000/- made on 06.03.2004 was evidenced by a separate receipt. Though the plaintiff was always ready and willing to perform his part of the contract, the defendants 1 to 3 and their mother have evaded execution of the sale deed. He has also stated that the 5th defendant, who is the brother of the defendants 1 to 3, has filed a suit in OS.No.853 of 2002 on the file of the District Munsif, Coimbatore, seeking a permanent injunction restraining the plaintiff, defendants 1 to 3 and their mother from alienating the property until partition is effected between them. It is also stated that the said suit had been decreed on 19.08.2004 despite contest.

(3.) It is further claimed that the 1st defendant had filed the suit in OS No.826 of 2003 on the file of the Sub Court, Coimbatore, seeking partition and separate possession of the suit properties and the same is said to be pending as on the date of the filing of the present suit for specific performance. It is also the claim of the plaintiff that the 4th defendant who is the sister of defendants 1 to 3 has also acknowledged the agreement by signing the endorsement for the receipt of Rs.25,000/- on 07.09.2002. According to the plaintiff another endorsement was made on 19.12.2005 in the agreement itself wherein the defendants 1, 2 and 4 have agreed to execute the sale deed after the disposal of the pending suit instituted by the 5th defendant. Therefore, according to the plaintiff he has paid total sum of Rs.2,45,000/- as advance and he is ready and willing to pay the balance of sale consideration. It is also not in dispute that in the agreement 10 months period was fixed for the performance of the contract. However, it is contended that time is not the essence of the contract. On the above contentions the plaintiff filed the suit on 08.11.2006, seeking specific performance.