K V NARASIMHAN Vs. S SALAMMAL

JUDGEMENT

(1.) THE first defendant has preferred the appeal challenging the judgment and decree dated 1. 3. 1993 passed in O. S. No. 388 of 1990 by the learned Subordinate Judge, Kancheepuram and pending appeal, first defendant died and his legal representatives have been added as appellants 2 to 5.

(2.) THE first respondent herein filed the suit seeking for a judgment and decree against the defendants directing the first defendant to specifically perform the suit sale agreement in favour of the plaintiff by executing and registering a sale deed in respect of the entire suit property or such portion as determined by the Court by receiving the balance of sale consideration or such portion as determined by the Court and after discharging all the dues over the suit property and on failure to do so, the same may be performed through the process of the Court and also for directing the delivery of possession of the suit property and in the event of the Court refusing the specific performance of the contract, in the alternative, to pass a decree against the first defendant to return the advance amount of Rs. 55,600/- with interest at 24% per annum from 30. 5. 1990 for the use and enjoyment of the plaintiff's money till realisation and for further sum of Rs. 50,000/- as damages for wilful breach of the contract and to create a charge over the suit property for the said amount and for costs of the suit.

(3.) THE case of the plaintiff is that the first defendant is the absolute owner of the suit property and he offered to sell the same to the plaintiff for a sum of Rs. 2,75,000/- free of all encumbrances and after discharging the Kanchipuram Co-operative House mortgage decree dues and after obtaining necessary income-tax clearance, in order to tide over certain of his pressing problems and family commitments and the plaintiff accepted the offer and the first defendant received a sum of Rs. 12,000/- as advance which was confirmed by his letter dated 26. 5. 1990 wherein he agreed to execute the sale agreement and the plaintiff further paid a sum of Rs. 43,600/- and in total, the first defendant received a sum of Rs. 55,600/- and executed an agreement to sell the suit property on 30. 5. 1990. It is further stated by the plaintiff that she has been requesting the first defendant to complete the sale transaction by clearing the house mortgage society dues, but the first defendant was postponing the execution of sale deed on the ground that he has to settle his daughter's marriage in the same house before parting it to the plaintiff and the plaintiff patiently waited till September 1990 and issued notice dated 21. 9. 1990 demanding the immediate execution of the sale deed and the first defendant though received the notice, did not send any reply. The plaintiff has further stated that the conduct of the first defendant was quite evasive and amounts to wilful breach of the contract and the plaintiff has always been ready and willing and continues to be so even on date to perform her part of the contract and she has sufficient means and ready cash for paying the balance of sale consideration. It is further stated by the plaintiff that the second defendant seems to have obtained some sale agreement in respect of 9 feet east to west and 45 feet north to south, the vacant site on the west of the building portion of the suit property from the first defendant and the second defendant seems to have abandoned and waived specific performance of the agreement for want of funds and was beyond time. According to the plaintiff, the suit sale agreement is in respect of the entire house property including the said side open site on the west and the value fixed includes the value of open site also and she is ready and willing to pay the balance of sale consideration fully if the first defendant discharges the Co-operative House mortgage dues and clears the claim of the second defendant with regard to the vacant site. It is further stated by the plaintiff that she estimated the value of the western vacant site, the subject matter of the agreement of the second defendant, at Rs. 75,000/- and she is ready and willing to have specific performance of the house property even excluding the vacant site on proportionate deduction of the value of the site. The plaintiff has further stated that she issued legal notice dated 17. 11. 1990 which was received by the first defendant on 20. 11. 1990 and he has not chosen to send any reply and hence the suit.