N. KUNJARAMMAL Vs. KALPANA ETHIRAJ

JUDGEMENT

(1.) The defendants in OS. No.306 of 2006 on the file of the Additional District Judge/Fast Track Court 1, Coimbatore, are the appellants. The said suit was filed by the 1st respondent, through her Power Agent seeking specific performance of the agreement of sale dated 09.03.2005.

(2.) According to the plaintiff, the defendants 1 to 4 have agreed to sell land measuring an extent of 6.07 acres in Kondayampalayam Village, Coimbatore for a total consideration of Rs. 6,75,000.00 and an advance of Rs. 50,000.00 was paid by the plaintiff on the date of the agreement. Since the defendants were indebted to the 5th defendant and subjected the property to a mortgage in favour of the 5th defendant, the agreement provided one month time for performance, which is to commence from the date of discharge of the Bank loan. Since the plaintiff did not perform her part of the contract, the defendants sent a notice cancelling the agreement on 23.02006. The plaintiff sent a reply on 28.02006 claiming that she has been ready and willing to perform her part of the contract and followed it with the suit which was filed on 24.04.2006. It is also claimed that the suit was decreed ex parte on 19.07.2007, and pursuant to the said decree, the plaintiff had paid to the bank a sum of Rs. 12,35,767.00 on 27.07.2007. It is also stated that said sum of Rs. 12,35,767.00 has been adjusted towards the borrowing of defendants 1 to 4. However, subsequently the ex-parte decree was set aside.

(3.) The defendants 1 to 4 resisted the suit contending that the plaintiff was not ready and willing to perform her part of the contract. It is also contended that the defendants were in acute financial crisis after the death of Balasubramanian, who is the son of the 1st defendant, husband of the 2nd defendant and father of the defendants 3 and 4. It was at that point, the plaintiff expressed her willingness to purchase the property. The fact that the property was mortgaged with the 5th defendant, was also disclosed to the plaintiff, and the plaintiff agreed to negotiate with the bank and arrive at one time settlement by reducing their liabilities. It is contended that the 5th defendant had filed a suit in OS No.564 of 2004 for recovery of money due on mortgage. It is also claimed that one Venkatachalapathy had filed the suit in OS No.544 of 2004, for recovery of money due on promissory note against the defendants. The defendants would further contend that the said Venkatachalapathy is closely associated with the father of the plaintiff namely V.R. Balasundaram. Therefore, the plaintiff was aware of the entire transaction and only with the knowledge of the impediments, the plaintiff had entered into an agreement dated 09.02005. According to the defendants, the plaintiff did not take any steps to settle the money with the 5th defendant bank and that resulted in a preliminary decree being passed in OS No.564 of 2004 for recovery of more than a sum of Rs. 8,00,000.00. It is the further claim of the defendants that Venkatapathy sought attachment of the properties belonging to defendants 1 to 4, the plaintiff demanded return of the advance money of Rs. 50,000.00 and wanted to cancel the sale agreement. The defendants have agreed for return of advance amount, and they sought for some time. Therefore, the defendants would contend that the plaintiff was not ready and willing for more than a period of 11 months and hence, notice was issued by the defendants on 05.02006 cancelling the said agreement and calling upon her to desist from exercising her right under the agreement dated 09.02005.