FATHIMA MAJEED Vs. SUBHAPRATHA RAVIKUMAR

JUDGEMENT

(1.) CHALLENGE is made to the judgment of the learned Single Judge made in C.S.No.733 of 1995, whereby the Court granted the relief of specific performance as asked for by the respondent/plaintiff.

(2.) THE respondent, who sought the said relief, came with the specific allegations that the suit mentioned property belonged to the defendant; that the plaintiff desired to purchase the same; that there was an agreement entered into, as per which, the sale price was fixed at Rs.13,63,500/-; that advance of Rs.2 lakhs was paid on 04.01.1995; that the same was actually incorporated in the written agreement entered into between the parties on 06.01.1995; that the property of the defendant was originally mortgaged with Muthialpet Benefit Fund Limited and a sum of Rs.3,02,876.25 was due, which the plaintiff agreed to pay; that accordingly, by way of demand draft, that amount was paid and the mortgage was redeemed; that further, a sum of Rs.2 lakhs was paid on 25.01.1995 towards balance sale consideration and thus, in total, a sum of Rs.7,08,876.25 has been paid by the plaintiff, but the defendant, who promised to get back the original document and satisfy his marketable right to alienate the property within the stipulated time, did not do so; that despite many a demand made, the defendant did not perform her obligation either by giving the relevant documents or getting income tax clearance certificate and under these circumstances, the plaintiff had no option than to issue a notice calling upon the defendant to execute the sale deed, but she failed and therefore, the plaintiff had no option than to approach this court and accordingly, she made the suit.

(3.) ADVANCING arguments on behalf of the appellant, the learned Senior Counsel Mr.T.V.Ramanujan, would submit that in the instant case, though the plaintiff has averred that she was all along ready and willing to perform her part of the contract, her conduct was otherwise. Admittedly, there was an agreement between the parties on 06.01.1995, whereby the total consideration was agreed at Rs.13,63,500/-. At the time of agreement, there was payment of Rs.2 lakhs, which has also been acknowledged by way of a receipt and was also incorporated in the agreement. Thereafter, on 24.01.1995, a letter under Ex.D.4 was addressed by the plaintiff to the defendant. The contents of the letter would clearly indicate that the plaintiff had made an attempt to make payment of Rs.1,97,123.75 as the balance sale consideration and accordingly, the plaintiff did by way of annexing a cheque therefor and according to her, as per the letter, that was the balance sale consideration, while the balance was nearly about Rs.7 lakhs and odd. This letter and the cheque for Rs.1,97,123.75 would clearly indicate that the plaintiff had made an attempt to defraud, which was nothing but breach of agreement. Apart from that, the plaintiff has also made an attempt to get acknowledgement therefor, but fortunately, the defendant lady has refused the same. Immediately, while the cheque was placed for encashment, the plaintiff has issued a communication to the Bankers to stop payment and thus, the contents found in Ex.D.4 would indicate the conduct of the plaintiff.