D SELVARAJ Vs. PALANISWAMI

JUDGEMENT

(1.) The unsuccessful defendant in O.S.No.59 of 1998 on the file of the Subordinate Judge, Attur and the appellant in A.S.No.108 of 2001 on the file of the II Additional Judge, Salem is the appellant herein.

(2.) The respondents/plaintiffs filed a suit in O.S.No.59 of 1998 before the Sub Court, Attur praying for a specific performance of contract dated 25.01.1995 (Ex.B1). Briefly stated the case of the respondents/plaintiffs in O.S.No.59 of 1998 is as follows. The first plaintiff for himself and on behalf of the 2nd plaintiff mortgaged the suit property with the defendant/appellant and a mortgage by conditional sale for a sum of Rs. 35,000/- was executed vide a registered deed dated 25.01.1995 (Ex.B1). As per the recitals of the said deed, the appellant/defendant agreed to transfer back the suit property within 5 years from the date of the deed (Ex.B1). The plaintiffs though were always ready and willing to perform their part of contract, the appellant/defendant evaded performance of their part of contract. Therefore, the plaintiff issued a telegram on 23.01.1998 showing his readiness and willingness to purchase the property as per the conditional sale deed (Ex.B1). The defendant though received the said telegram, did not come forward to execute the sale deed. Hence the suit for specific performance.

(3.) The appellant/defendant filed a written statement contending that the respondents/plaintiffs were not ready and wiling to perform their part of the contract though in the ' conditional sale deed ' it is clearly indicated that time for reconveyance of the property is 5 years. Furthermore, the transaction is not a mortgage by conditional sale as alleged by the respondents/plaintiffs and on the contrary, it is only an outright sale. There is no relationship of debtor-creditor between the respondents/plaintiffs and the appellant/defendant. In fact, the property was sold for a consideration of Rs. 35,000/-, which was the market value at that point of time and the possession of the suit property was also handed over to the appellant/defendant. He therefore, prayed for the dismissal of the suit.