P.VAIDYANATHAN Vs. K.SUNDARAM

JUDGEMENT

(1.) The plaintiff whose suit for specific performance accompanied by an alternative prayer for refund of advance amount was decreed in part granting the prayer for refund of advance amount alone, that is for a sum of Rs. 2,00,000/- only as against the claim of Rs.5,50,000/-, is the appellant.

(2.) According to the plaintiff, the defendant offered to sell his property for a sum of Rs.3,50,000 and a registered agreement was entered into on 111.2001. On the date of agreement a sum of Rs.3,00,000 was paid as advance and 15 months time was fixed for payment of the balance amount of Rs.50,000/-. Just about the time from the period fixed under the agreement was to expire, at the instance of the defendant, a second agreement was entered into on 10.02003, wherein the sale price was increased to Rs.5,50,000/- and the plaintiff paid further advance Rs.2,00,000/-. Thus making advance Rs.5,00,000/-, the balance sale consideration remained at Rs.50,000/-. A period of 12 months was fixed for performance for the second agreement dated 10.02003. Again on 08.03.2004, according to the plaintiff, at the instance of the defendant, the sale price was increased to 6,00,000/- and further advance Rs.50,000/- was paid. The period for performance was fixed as 11 months from 08.03.2004. Therefore, according to the plaintiff, the total advance paid is Rs.5,50,000/- and the balance payable is Rs.50,000/-. Contending that he has always been ready and willing to perform his part of contract to have the sale deed executed, the plaintiff has claimed specific performance or the alternative prayer for refund of advance amount. The suit was filed on 28.12004.

(3.) The defendant resisted the suit contending that under all the three agreements, so far, the plaintiff had advanced a sum of Rs.2,00,000/- to him. The plaintiff charges interest at 60% per annum. The plaintiff had worked out the amount that would fall due on the last date fixed for performance under the agreement with interest at 60% per annum on Rs.2,00,000/- and the same has been shown as advance paid under the agreement. It reflects the amount that will be due, if 60% is added to the principal sum of Rs.2,00,000/-. It was further contended by the defendant that there is no question of the plaintiff being ready and willing to perform the part of his contract, as there was no agreement for sale of the property. All the three agreements were brought about only as security for the loan taken by the defendant from the plaintiff.