SELVAKUMAR Vs. B VALLIAMMAL

JUDGEMENT

(1.) The plaintiff in the suit in O.S.No.45 of 2007 on the file of the learned Additional District Judge (Fast Track Court No.2), Thoothukudi, is the appellant in this appeal suit.

(2.) The appellant/plaintiff filed the suit for specific performance of an agreement of sale dated 009.2006 in respect of the property owned by the defendant, namely, a house and house site measuring about 5,417.412 square feet, nearly 1436 cents. It is the case of the plaintiff that the defendant agreed to sell the suit property for a sum of Rs.8 lakhs and received a sum of Rs.10,000/- as advance on 14.08.2006. It is further stated that on 009.2006, the defendant executed an agreement of sale in favour of plaintiff for a sum of Rs.8 lakhs and received a sum of Rs.1 lakh towards advance amount. It is also stated that the time fixed for performance is three months and that the defendant has agreed to sell the property free of encumbrance, after receiving the balance of sale consideration. It is also stated in the plaint that on 13.09.2006, the plaintiff paid a further sum of Rs.1 lakh to the defendant and made an endorsement. Thus, the plaintiff's case is that he has paid a sum of Rs.2,10,000/- out of the total sale consideration of Rs.8 lakhs. It is alleged that the plaintiff was always ready and willing to perform his part of contract by paying the balance sale consideration of Rs.5,90,000/-, but the defendant was delaying. It is also stated in the plaint that the plaintiff made repeated demands requesting the defendant to receive the balance of sale consideration and to complete the sale transaction by executing the sale deed in favour of the plaintiff and that the defendant was evading. In the plaint, it is also stated that the plaintiff came to know latter about the mortgage created by the defendant in respect of the property to a Co-operative Society. Since it is agreed by the defendant that she should execute the sale deed free of encumbrance, it is stated in the plaint that the defendant, who is under a legal obligation to discharge the mortgage and execute the sale deed free of encumbrance, was evading to discharge the loan. It was, therefore, the plaintiff submitted that on 13.02007, the plaintiff sent a notice through his Advocate calling upon the defendant to discharge the mortgage and to execute a sale deed. Since the defendant failed to do so, it is stated that the suit was filed on 05.11.2007 for specific performance.

(3.) The suit was contested by the defendant mainly on the ground that the plaintiff was not ready and willing to perform his part of contract in terms of the agreement of sale dated 02.09.2006. The defendant admitted the execution of the agreement and the receipt of the advance amount, namely, a sum of Rs.2,10,000/- at the time of entering into the agreement and subsequently, on 109.2006. It is the specific case of the defendant that she purchased the property on 10.05.1995 and mortgaged the property for a sum of Rs.2 lakhs for construction of a house in the suit property. It is also stated that the defendant required additional amount for completing the construction and therefore, it is stated in the written statement that the defendant borrowed a further sum of Rs.1 lakh from one Patturajan and executed another mortgage. It is also the case of the defendant that she could not repay the loan and interest. Since interest was mounting, it is the case of defendant that she decided to sell the suit property to the plaintiff for a sum of Rs.5 lakhs to discharge both loans and stated further that earlier she entered into an agreement of sale with one A.Perumal dated 07.10.2005 for a sum of Rs.5 lakhs. However, the said Perumal had only paid a sum of Rs.1,50,000/- and had agreed to pay the balance of sale consideration within 8 months and he could not complete the sale in time and therefore, the said agreement was rescinded. It is further stated in the written statement that during this time, the Housing Society, which had a claim for a sum of Rs.8 lakhs and odd against the defendant as on November 2006, came with an offer of waiver of interest amounting to Rs.3,30,000/- subject to the condition that the entire amount should be paid before December 2006. It is stated that the agreement was entered into with the plaintiff with the hope of getting the entire sale consideration before December, 2006 so as to get the benefit of waiver. The case of the defendant also was that the plaintiff was aware of the encumbrance including the sale agreement that was entered into with one A.Perumal for a sum of Rs.5 lakhs and the receipt of sum of Rs.1.5 lakhs as advance. Since the defendant and her husband made it clear that there is a concession of waiver of interest if the entire amount is settled before December, 2006, the defendant stated that she informed the plaintiff to pay the mortgage amount directly to the Housing Society before December 2006 and balance at the time of execution of sale deed before registration.