K RAJAN Vs. V VIJAYALAKSHMI

JUDGEMENT

(1.) The brief facts of the case as follows:

(2.) According to the respondents, the suit agreement is not a only agreement. The possession was not handed over to the plaintiff and the defendants are still in possession. The suit property was originally belongs to late Varadharaj. When the 2nd defendant was minor, the sale agreement was entered into with the plaintiff on 111.2003 and the sale price was fixed at Rs.57,300/- for 2270 sq.ft. of land. The plaintiff paid an advance amount of Rs.21,000/- The sale agreement expires on 15.2004. Thereafter, another sale agreement was entered into between the plaintiff and the defendants wherein the defendants agreed to sell 3145 sq.ft. Of land for a sum of Rs.79,420/- and the plaintiff paid a sum of Rs.58,300/- as an advance. The said agreement expires on 17.8.2004. On 16.8.2004, third sale agreement was entered into between the plaintiff and the defendants. The sale price was fixed at Rs.79,420/- and a sum of Rs.78,420/- was paid as an advance. The 3rd sale agreement expires on 16.2005. The plaintiff was neither ready nor willing to purchase the property, but the defendants were ready and willing to sell the property. No notice or intimation was given by the petitioner/plaintiff on or before 16.2005 to show his readiness and willingness to purchase the property. The plaintiff failed to perform the contract within the stipulated period, the sale agreement stands cancelled and the amount paid towards advance had been forfeited. The plaintiff has suppressed the earlier sale agreement. The plaintiff failed to perform his part of contract and committed a breach of contract. The defendants sent a legal notice on 19.8.2006 to the plaintiff. The plaintiff was informed that the sale agreements were stands cancelled. The plaintiff has never in possession of the suit property. The plaintiff is not entitled for any relief of specific performance and there is no cause of action. The suit is liable to be dismissed. The trial court upon considering the oral and documentary evidence decreed the suit in favour of the plaintiff. Aggrieved by the same, the respondents herein have filed an appeal in A.S.No.16 of 2013. However, the appellate Court came to the conclusion that the plaintiff suppressed the materials facts, namely, execution of Ex.A1, A2 sale agreements, telegram and notice Ex.A4 and Ex.B3 sent by the defendants, thereby the plaintiff has not come to the court with clean hands and allowed the appeal and dismissed the suit.

(3.) According to the learned counsel for the appellant/ plaintiff, suit for specific performance of contract is based on sale agreement. In the instant case, there are two sale agreements which were marked as Ex.A1 and A2. The learned counsel for the appellant relied on the evidence of D.W.1 who in her cross examination has clearly stated that the execution of sale deed was only formally postponed. According to the learned counsel for the appellant, time is not the essence of the contract. In support of his contention, he relied on the judgment of the Hon'ble Supreme Court in CHAND RANI VS. KAUL RANI, (1993) 1 SCC 519. In the instant case, the plaintiff had almost paid 99% of the sale consideration and remaining sale consideration was just only Rs.1,000/-. The learned counsel for the petitioner also relied upon the decision of the Hon'ble Supreme court in MOTILAL JAIN VS. RAMDASI DEVI (Smt) AND OTHERS, (2000) 6 SCC 420 and ARJUNAN VS. D.PANDI,2012 2 MWN(Civ) 277 SWARNAM RAMACHANDRAN AND ANOTHER VS. ARAVACODE CHAKUNGAL JAYAPALAN, (2004) 5 CTC 369 and A.K.LAKSHMIPATHY (DEAD) & OTHERS VS. RAJ SAHEB PANNALAL H.LAHOTI CHARITABLE TRUST & OTHERS,2010 1 MWN(Civ) 101].