THANGAM AMMAL Vs. RATTAN CHAND

JUDGEMENT

(1.) THE decree and Judgment in O. S. No. 95 of 1998 on the file of the Court of Principal Subordinate Judge, Mayiladuthuri is under challenge in this appeal. The defendants in the suit are the appellants herein.

(2.) THE short facts of the case of the plaintiff in the plaint sans irrelevant particulars are as follows: The plaint schedule property belongs to the defendants, which is a residential house. The second defendant is the husband of the first defendant and defendants 3 to 5 are the sons. The site of the suit property was purchased in the name of the first defendant on 15. 3. 1980 and superstructure was constructed over the plot by the defendants 1 and 2. The family of the defendants wanted to dispose of the suit property with a view to purchase some other property and for the funds required for the trade in which defendants 3 and 4 were engaging themselves. The offer made by the defendants was accepted by the plaintiff and they entered into an agreement of sale on 9. 2. 1996. The said agreement of sale was executed in front of a Notary Public. As per the sale agreement, the first defendant had agreed to sell the property for a total sale consideration of Rs. 2,26,000/ -. On the date of sale agreement itself, a sum of Rs. 2,00,000/- was paid as an advance. The time stipulated under the agreement of sale for the performance of a contract was four months. The first defendant had handed over the title deed relating to the suit property along with the encumbrance certificate to the plaintiff. The plaintiff was always ready and willing to perform his part of the contract. When the plaintiff approached the defendants for the execution of the sale deed, the defendants wanted further time to fix a suitable alternative accommodation for them. However, even after a lapse of several months, the defendants did not show any inclination to vacate the suit property, the plaintiff caused registered notice on 7. 7. 1997 setting forth the above facts and calling upon them to express their willingness to perform their part of the contract. The defendants have not sent any reply. In view of the amended provisions of the Specific Relief Act, the plaintiff has asked for an alternative relief of the return of the advance with interest thereon at 24% per annum by way of damages and on a charge of the suit property. The plaintiff is ready and willing to deposit the balance of sale consideration into Court. Hence the suit.

(3.) THE Defendants 2 to 5 have adopted the written statement filed by the first defendant which runs as follows: the suit is barred by limitation. The document dated 9. 2. 1996 is not true and valid and no consideration was passed under the said document. On 4. 9. 1995, the first defendant has borrowed a sum of Rs. 50,000/- from the plaintiff. The plaintiff made a condition to the first defendant to make a "agreement of Sale" before the Notorised to endorse the amount in double ie. , Rs. 1,00,000/ -. Actually it is not an agreement of sale, it is only a document created by the plaintiff. The plaintiff is a professional moneylender. His business is to give loans with huge rate of interest. In fact, the first defendant has borrowed a sum of Rs. 50,000/- from the plaintiff. The plaintiff followed the familiar formula "agreement of Sale" at the time of executing the agreement. The plaintiff has filed a similar type of suit for Specific Performance before this Court. The second document dated 9. 2. 1996 is not true and valid. No consideration was passed under the said document. Only to get over the time of limitation , the second agreement is created and also added the interest for the amount borrowed by the first defendant on 4. 9. 1995. All these documents are part of the act of the defraud of the plaintiff. After receiving the notice on 7. 7. 1997, the first defendant immediately met the plaintiff, there was an oral compromise entered into between the plaintiff and the first defendant. One year time to be given by the plaintiff. The averments found in the plaint are scandalous in nature. The suit was not properly valid for Court fee and jurisdiction. Hence the suit is liable to be dismissed with costs.