J SRINIVASAN Vs. J PARVATHI

JUDGEMENT

(1.) THIS appeal has been directed against the decree and Judgment in O.S.No.12071 of 1996 on the file VII Additional Judge, City Civil Court, Chennai. The unsuccessful plaintiff before the trial Court is the appellant herein.

(2.) THE averments in the plaint sans irrelevant particulars are as follows: THE defendant is the owner of the property situate at No.40(Old Door No.34).T.S.V.Koil Street, Mylapore, Chennai-4 which is the plaint schedule property. THE defendant has agreed to sell the plaint schedule property to the plaintiff for a sum of Rs.3,80,000/-. An agreement of sale was entered into between the plaintiff and the defendant on 28.11.1991. On the date of the agreement, the plaintiff had paid a sum of Rs.1,50,000/- towards advance and subsequently, paid Rs.48,000/- on various dates i.e., on 10.2.1992,27.2.1992, 21.3.1992, 23.5.1992, 15.6.1992 etc ., As per the terms and conditions of the agreement of sale, the entire sale consideration should be paid on or before 30th April 1992 subject to the production of Income Tax Clearance Certificate by the defendant besides delivery of vacant possession of the first floor of the property within 15 days from the date of agreement. Even after subsequent part payment towards sale consideration, the defendant has not vacated and handed over the possession of the first floor of the premises as part performance of the agreement of sale. Further he has also failed to furnish income tax clearance certificate to enable the plaintiff to complete the sale transaction. From out of the advance of sale consideration paid by the plaintiff to the defendant, the defendant had settled the amounts due to her sister in perfecting her title to the property. Towards part of sale consideration, the plaintiff has paid a sum of Rs.1,98,000/- to the defendant. As per terms of the agreement within fifteen days, the defendant has not vacated and delivered vacant possession of the first floor of the plaint schedule property but she has let out the same to the tenants and has appropriated the rental income. THE plaintiff was always ready and willing to perform his part of the contract,as per the terms of the sale agreement. Several demands made by the plaintiff to the defendant to perform her part of the contract as per terms of the sale agreement dated 28.11.1991, fell into deaf ears of the defendant. Finally, the plaintiff has issued a lawyer's notice on 7.3.1994 calling upon the defendant to perform her part of the contract as per the terms of the sale agreement dated 28.11.1991. In the reply notice , the defendant had admitted the receipt of the advance made by the plaintiff except a sum of Rs.4,000/-, there was no valid explanation was given by the defendant for her non performance of the agreement. Subsequent to the reply notice, the plaintiff has sent a draft copy of the sale deed to enable the defendant to apply for income tax clearance certificate dated 25.5.1994. Inspite of such compliance on the part of the plaintiff, the defendant has not come forward to fulfill her obligation in executing and registering the sale deed by delivery of vacant possession of the property. THE defendant is now trying to alienate and encumbrance the property to the third parties. Hence the plaintiff has filed the suit for specific performance of contract between the plaintiff and the defendant in terms of the agreement of sale dated 28.11.1991 and also for permanent injunction restraining the defendant and her men from selling, encumbering or letting out or leasing the property to any person till the sale deed is executed and registered and vacant possession of the property is delivered.

(3.) THE following points arose for determination in this appeal a) Whether the parties to the sale agreement dated 28.11.1991 have treated the time as the essence of contract? b) Whether the Judgment and decree of the learned Trial Judge in O.S.No.12071 of 1996 on the file of VII Additional Judge, City Civil Court, Chennai is liable to be set aside for the reasons stated in the memorandum of appeal?