SHANMUGHASUNDARAM Vs. A S NARAYANASWAMI

JUDGEMENT

(1.) This is an appeal preferred by Shanmughasundaram, the first defendant, against the judgement and decree dated 28th June, 1982 in O.S. No. 548 of 1979 on the file of the Court of the First Additional Subordinate Judge, Coimbatore, decreeing the suit for specific performance, holding that the plaintiffs have to deposit before 28-7-1982 into the Court below a sum of Rs. 60,045/-, the balance of sale price, that as and when such deposit is made by the plaintiffs, the property mentioned in Ex. A.1 agreement of sale has to be sold in favour of the plaintiffs by the first defendant and that the said sale deed has to be executed before 28-8-1982 failing which the Court below would execute the sale deed on behalf of the defendants in favour of the plaintiffs. The other relief prayed for by the plaintiffs was dismissed without costs. The Court below directed the first defendant to pay plaintiffs the costs of the suit and directed defendants 1 to 5 to bear their own costs.

(2.) The suit was filed before the Court below together with two sale deeds to be executed by the defendants within the time specified by the Court below failing which praying the Court to execute the said sale deeds specifying a sum of Rs. 1,164/- as well as the interest at 12% on Rs. 20,000/- from the date of the suit till the date of judgement and subsequently till the date of realisation of the said sum together with interest at the rate of 6% per annum to be paid by the defendants to the plaintiffs and also to render an account relating to the income derived from the suit property from 17-9-1978 till date of delivery of possession and for delivery of possession of the suit property by the defendants to the plaintiffs. The plaintiffs have also prayed for recovery of costs of the suit.

(3.) The case of the plaintiff's, in brief, is as follows : Defendants 2 to 5 are the children of the first defendant. The first defendant has no son. The first plaintiff died during the pendency of the suit. His legal representatives, defendants 5 to 9, were impleaded. On 17-9-1978, the first defendant on the one side and defendants 1 and 2 on the other, entered into an agreement of sale with respect to the suit property. As per the agreement of sale, a specific one-third share belonging to the first defendant has to be sold out of the total extent of 6 acres 86 cents in S.F. No. 428, Ganapathi village, Coimbatore Taluk. For the sale, the first and second plaintiffs agreed to pay a sum of Rs. 35,000/- per acre to the first defendant. On the date of the agreement of sale, the first and second plaintiffs had paid a sum of Rs. 20,000/- to the first defendant as advance. Later when the sale deeds were to be executed, the first defendant agreed to prepare a list of his debts and hand over the same. The time stipulated as per the agreement of sale was extended to 13-1-1979 subsequently. The first and 2nd plaintiffs were always ready and willing to purchase the property as per the agreement of sale. The first defendant agreed to sell the land to the 1st and 2nd plaintiffs or to their nominees. According to him, the first plaintiff had purchased stamp-papers in his name. The second defendant had purchased the stamp papers in the name of the 4th plaintiff for Rs. 8,800/-. Two sale deeds were written for Rs. 39,900/- on 10-12-1978. The first and the 2nd plaintiffs asked the first defendant to execute the sale deed. The first defendant had stated that his brothers had instituted a suit in O.S. No. 1268 of 1978 on the file of the Second Additional Subordinate Judge, Coimbatore and in that suit an order of interim injunction has been obtained against him restraining him from selling the suit property. But with respect to the said suit property, sub-division had been effected. In the specified portion, the first defendant is in possession. Therefore, the interim injunction order obtained by the brothers of the first defendant does not in any way affect the right of the first defendant selling the property as agreed to by him. The first defendant and his brother have entered into an agreement surreptitiously and both sides had endorsed in the petition for interim injunction. The above act on their part is only to thwart the agreement of sale. The suit property is now in the enjoyment of the first defendant. The first defendant is also enjoying the interest on the advance amount of Rs. 20,000/-. On both these debts, the plaintiffs have incurred loss. So, on the said amount, the plaintiffs are entitled to interest at the rate of 12% per annum from 10-12-1978. With respect to the income that is being derived from the suit property by the first defendant, he is bound to render accounts relating to the income received by him. On 6-1-1979 a notice was sent to the first defendant by the Advocate for the plaintiffs. A reply dated 25-1-1979 containing false details was issued by the first defendant. As per the agreement, the first defendant is bound to execute a sale deed.