K. SRIDHAR Vs. POTTIAMMAL (DIED)

JUDGEMENT

(1.) This Second Appeal is filed against the judgment and decree dated 29.06.2010 passed in A.S.No.13 of 2009 on the file of the Sub Court, Attur confirming the judgment and decree dated 31.07.2009 passed in O.S.No.11 of 2006 on the file of District Munsif court, Attur.

(2.) The defendants 2 and 3 who lost in both the courts below filed the present Second Appeal. The respondent/plaintiff filed O.S.No.11 of 2006 against one Pottiammal, the first defendant and appellants herein as defendants 2 and 3 for specific performance of agreement of sale dated 30.12.2004 registered as Doc.No.4037 of 2004 executed by Pottiammal and appellants.

(3.) According to the respondent, the deceased Pottiammal and the appellants are the absolute owners of the suit property and they agreed to sell the suit property for a total sale consideration of Rs. 1,00,000/- and received a sum of Rs. 70,000/- as advance. The balance sale consideration of Rs. 30,000/- was agreed to be paid within eleven months from 30.12.2004 by the respondent to Pottiammal and appellants and get the sale deed executed in his favour. Even though time is not the essence of the contract, the respondent was ready and willing to perform his part of contract by paying the balance sale consideration to the appellants and the deceased Pottiammal, but the appellants and the first defendant were evading to execute the sale as agreed. They were arranging to sell the suit properties to third parties. Hence, the respondent issued notice dated 05.12.2005 through his Advocate. The first defendant Pottiammal received the said notice. Notice sent to the appellants were returned unserved. They sent reply containing false averments. In the said circumstances, the respondent filed the suit for the reliefs stated above. The respondent in alternative, prayed for refund of advance amount of Rs. 70,000/- paid to the first defendant Pottiammal and appellants with interest @ 10% from the date of suit without prejudice to the main relief of specific performance of agreement, as per Specific Relief Act.