A N SIVALINGAM Vs. NARAYANAN

JUDGEMENT

(1.) The second appeal has been filed against the judgment and decree, dated 29.07.2010 in A.S.No.27 of 2009, on the file of the District Judge, Sivagangai, confirming the judgment and decree in O.S.No.6 of 2007 dated 29.06.2009 on the file of Subordinate Court, Devakottai.

(2.) The first defendant in the suit in O.S.No.6 of 2007 on the file of the Sub Court, Devakottai is the appellant in this appeal. The first respondent in the appeal who is the plaintiff in O.S.No.6 of 2007 has filed the suit for specific performance of an oral agreement of sale, dated 16.07.2003 entered into between the plaintiff and the defendants. It is stated in the plaint that the suit properties belonged to the second defendant, his wife and children and that the first defendant in the suit acting as a power agent formed a lay out by name Sri Kamatchi Amman Nagar.

(3.) It is the case of the plaintiff that the first defendant was acting as a promoter of the lay out and that the plaintiff through first defendant negotiated with the second defendant to purchase the suit properties at the rate of Rs.23,500/- per cent in respect of Plot No.23 in the lay out. The total sale consideration, according to the plaintiff, was Rs.1,12,095/- and a sum of Rs.50,000/- was stated to have been paid on the date of agreement as an advance. In the plaint, it is stated that the balance amount of Rs.62,095/- has to be paid by the plaintiff to the defendants, who in turn, had agreed to execute the sale deed in favour of the plaintiff's daughter. The first defendant stated to have issued receipt for the payment of advance. It is the case of the plaintiff that the plaintiff has informed the defendants that he is ready to perform his part of the contract by paying the balance amount and that it was the defendants, who wanted the plaintiff to wait stating that a suit has been instituted by some strangers as against the wife of the second defendant and that the same was pending. It is also stated that the plaintiff after knowing that the suit was compromised, approached the defendants to execute the sale deed on receipt of the balance of the sale consideration but the defendants were delaying. The plaintiff, stated that the first defendant in order to defraud the plaintiff and to make unjust enrichment obtained the sale deed from the second defendant in his favour on 15.05.2006 and that such sale is invalid and the same is not binding on the plaintiff. The plaintiff issued a suit notice on 17.07.2006, requesting the defendants to execute sale agreement upon receipt of the balance sale consideration. However, a reply has been sent on behalf of the defendants on 21.07.2006 stating that the agreement has come to an end, as the plaintiff was not ready and willing to come forward to give the balance of sale consideration. It is further stated that the sale agreement is time barred. The first defendant in his reply notice admitted the agreement and the receipt of advance.