A.M. GANDHISAN Vs. AYYASAMI

JUDGEMENT

(1.) THE plaintiff in O.S. No. 16 of 1978 on the file of the learned Subordinate Judge, Tirupattur, North Arcot, is the appellant. The defendant in the action (respondent herein) is the owner of the plaint schedule property which is of the extent of 9 acres and 51 cents of dry land with a house therein. On 9th November, 1972, the defendant executed an agreement for sale in favour of the plaintiff undertaking to sell the property to him for a sum of Rs. 14,000. On the date of Exhibit A -1 he received from the plaintiff an advance of Rs. 1,000. The stipulation in the agreement was that the defendant should execute the sale deed within three months from the date of Exhibit A -1 on receipt of Rs. 13,000 and if he committed a breach of the agreement, he should pay the plaintiff Rs. 3,000 as damages. Similarly, if the plaintiff failed to take the sale deed on payment of Rs. 13,000 he had to pay the defendant Rs. 3,000 by way of damages. The defendant did not comply with the terms of the agreement. Therefore the plaintiff issued Exhibit A -2 notice to the defendant on 23rd January, 1973 calling upon him to execute the salt; deed in terms of Exhibit A -1. Since the defendant did not send any reply, the plaintiff filed the suit for specific performance of the agreement for sale evidenced by Exhibit A -1. It is averred in the plaint that Exhibit A -1 agreement for sale was executed by the defendant pursuant to a panchayat and in the presence of the panchayatdars. The plaint further mentions the fact that prior to the execution of A -1, the agreement for sale, the defendant had purchased the suit property under Exhibit B -4 dated 1st August, 1972. According to the plaintiff though in the document the sale consideration is mentioned as Rs. 20,000 the defendant really paid only Rs. 10,000. This averment has been evidently u made to show that actually the plaintiff agreed to purchase the property from the defendant for Rs. 4,000 more than what the latter paid to purchase the property under Exhibit B -4 the defendant paid Rs. 20,000.

(2.) THE defendant filed a written statement to the effect that at the time when he executed Exhibit A -1 he was not aware of the contents of the document and that he could neither read nor write Tamil. He was informed by the plaintiff and the panchayatdars that he would be paid a sum of Rs. 22,000 which is made up of Rs 20,000 which he paid for taking Exhibit B -4. sale deed and Rs. 2,000 which he spent on the purchase of stamp papers. In fact, according to the defendant, it was on the basis of these representations that were made to him he signed Exhibit A -1. He therefore contended that the plaintiff is not entitled to a decree for specific performance.

(3.) THE trial Court found that no deception was practised on the defendant by the plaintiff in the matter of execution of Exhibit A -1, agreement for sale, by the defendant but that Exhibit A -1 agreement for sale was vitiated by unfairness. In this view, the trial Court refused to grant the discretionary relief for specific performance in favour of the plaintiff The trial Court, therefore, negatived the plaintiff's, claim to the relief for specific performance but passed a decree in favour of the plaintiff for the return of a sum of Rs. 1,000 paid as advance under Exhibit A -1. The plaintiff, aggrieved by the refusal of the trial Court to grant a. decree for specific performance in his favour, has filed the above appeal.