AMIRTHAM Vs. SUBBIAN

JUDGEMENT

(1.) THE plaintiff who failed before the lower court in O.S. No. 509 of 1981 on the file of the I Additional Subordinate Judge, Coimbatore has filed the above appeal.

(2.) ACCORDING to the plaintiff, as stated in the plaint, the suit property belonged to the second defendant -society originally and the first defendant purchased the same from the society under the coveyance deed dated 18.3.1974 and he became the absolute owner of the property. That on 6.3.1980 the plaintiff entered into an agreement with the first defendant to purchase the property for a sum of Rs.33,000 and she paid a sum of Rs.6,000 as advance. As per the terms of the agreement, the plaintiff has to pay the balance amount of Rs.27,000 to the first defendant within a period of four months from the date of execution and the first defendant has to execute the sale deed in favour of the plaintiff or to her nominees. It was further agreed that the plaintiff has to pay the amenity charges to the second defendant, and, for that purpose one has to become a member of the Society. The plaintiff remitted a sum of Rs.260 to the second defendant -society on 19.5.1980 and became a member of the Society. The first defendant has to apply to the second defendant to get the 'No Objection Certificate' from the society in order to make a valid sale as per the bye -laws of the Society. Even though the first defendant applied to the society for N.O.C. on 3.4.1980, till 2.7.1980 he did not obtain the same. In view of the understanding between the parties the plaintiff purchased necessary stamp papers on 4.7.1980 according to the guideline value and got ready for getting the sale deed executed with necessary funds. The plainti ff made several requests to the first defendant to execute the sale deed after receiving the amount but he was simply postponing the same with ulterior motive. In spite of the advice of the panchayatdars, the first defendant did not come forward to execute the sale deed. According to the plaintiff, necessary fund was provided by the plaintiff -s father and the plaintiff has got jewels more than 50 sovereigns in hand and also other movable properties and cash to the tune of Rs.25,000 Since the first defen dant failed to execute the sale deed, the plaintiff sent a notice on 31.10.1980 through her advocate. The first defendant was evading to receive the notice till 10.11.1980. Knowing that the plaintiff had sent the notice, the first defendant made hurried attempt to send a notice through his advocate dated 31.10.1980 which was registered on 3.11.1980 along with a cheque for Rs.6,000 representing the earnest money. The plaintiff sent a reply dated 11.11.1980 to the defendant's counsel. The plaintiff was always ready and willing to perform her part of the contract. With the above pleadings the plaintiff has field the suit in O.S. No. 509 of 1981 on the file of the Sub -Court, Coimbatore, praying for a decree for specific performance of the contract, directing the first defendant to execute the sale deed as per the agreement dated 6.3.1980 in favour of the plaintiff and to put the plaintiff in possession of the same or in the alternative, the plaintiff has prayed for execution of the sale deed in favour of the plaintiff.

(3.) THOUGH the second defendant filed an elaborate written statement, it is enough to mention the necessary averments relating to this case. According to the second defendant as per the resolution passed on 2.5.1980 in the meeting of the Board of Directors, this defendant expressed no objection to transfer and sell the suit property to a member of its society. On 24.4.1980, the plaintiff submitted an application form and requested the second defendant to enroll her name in the members' list of this defendant -society and paid Rs.250 and became a member. The plaintiff also paid the amenity charges of Rs.2,755 on behalf of the first defendant. According to this defendant, he also sent a reply letter dated 20.5.1980 and granted permission to sell the suit property to a member of its society. The' No Objection Certificate' was also prepared on 20.5.1980 itself, but the first defendant has so far not received the same. So, this defendant by its letter dated 2.7.1980 informed both the first defendant and the plaintiff about the preparation of the 'No Objection Certificate'. On the basis of the above pleadings, the second defendant has prayed that no cause of action has arisen against the Society and so the suit has to be dismissed with cost.