S SAKTHIVEL Vs. R VELUSAMY

JUDGEMENT

(1.) The plaintiffs whose suit for specific performance in OS No.138 of 2007 was dismissed are the appellants. According to the plaintiffs they entered in to an agreement of sale for purchasing the suit properties namely an extent of 1400sq.ft. of land along with a house in Sowripalayam Village of Coimbatore Taluk. The said agreement was entered into on 18.08.2006, wherein the total consideration was fixed at Rs.5,90,000/-. The plaintiffs paid an advance of Rs.75,000/- on the date of the agreement and a period of three months was fixed for the performance of the contract. According to the plaintiffs though they were ready and willing to perform their part of the contract the defendant did not comply with the essential term of the agreement namely the production of Nil Encumbrance Certificate. However the defendant chose to send a notice on 06.01.2007 cancelling the agreement, claiming that the plaintiffs have not performed their part of the contract. Subsequently, the plaintiffs by their notice dated 10.01.2007 called upon the defendant to execute the sale deed on 18.01.2007. The plaintiffs would aver that, though they have gone to Registrar's Office on 18.01.2007 the defendant did not come forward to execute the sale deed therefore they sent another notice calling upon the defendant to come forward to execute sale deed on 24.01.2007. Since the said notice was also not complied with, the plaintiffs filed the present suit on 12.03.2017. It is also averred in the plaint that the plaintiffs have been through out ready and willing to perform their part of the contract and the delay in performance occurred only due to the failure on the part of the defendant to produce the Nil Encumbrance Certificate.

(2.) The suit was resisted by the defendant contending that the plaintiffs have suppressed various facts. According to the defendant the suit agreement dated 18.08.2006 is not the first agreement between the parties. Initially the parties had entered into an agreement dated 03.05.2006 for the sale of the very property for a consideration of Rs.6,25,000/-. The plaintiffs failed to perform their part of the contract under the said agreement. Howerver, claiming that there was a short fall in the extent of the property agreed to be sold they wanted scalling down of the sale consideration. The defendant also agreed and a new sale agreement was entered into between the parties on 17.07.2006, wherein the price of the property was fixed at Rs.5,90,000/- and the time for performance also fixed as three months. This was done on the specific request of the plaintiffs and on their undertaking that they would honour the commitment within the period fixed therein. However the plaintiffs, according to the defendant, did not come forward to honour the said commitment and hence a new agreement was entered into 18.08.2006, fixing the period for performance as three months and the parties intended time to be the essence of the contract. Since the plaintiffs did not come forward to pay the balance of sale consideration the defendant was forced to cancel the agreement by his notice dated 06.01.2007, after having waited for over, nearly two months after the actual date for performance that is 17.11.2006. The defendant would also contend that he had filed the suit in OS.No.423 of 2007 on the file of the District Munsif, Coimbatore praying for declaration that the registered agreement dated 18.08.2006 has become honest and inoperative.

(3.) According to the defendant only after the receipt of the summons in IA.No.459 of 2007 filed by him in OS.No.423 of 2007 seeking an order of injunction against the plaintiffs, the plaintiffs have come forward with the present suit on 12.03.2007. Highlighting the above facts the defendant would plead the plaintiffs were not ready and willing to perform their part of the contract and therefore they are not entitled to a decree for specific performance.