GOPIBAI KUNDANDAS Vs. SYED SHAFIULLAH

JUDGEMENT

(1.) BOTH the original side appeals are directed as against the judgment and decree of the learned Single Judge in C. S. No. 123 of 1980, second defendant in the suit is the appellant in O. S. A. No. 150 of 1990 and first defendant is the appellant in O. S. A. No. 152 of 1990.

(2.) THE case of the plaintiff is as follows: THE plaintiff is carrying on business as watch dealer. THE first defendant is owner of the property bearing Door No. 20, New No. 12, errasappa Maistry Street, (Rattan Bazaar), Madras 600 003. Agreements of sale entered into between the plaintiff and the first defendant in respect of the suit property consisting of ground floor, first floor and second floor. Two agreements of sale were entered into, one respect of the ground floor and another in respect of the first and second floors. THE first defendant represented to the plaintiff that by sale of the entire property within the financial year, he would suffer huge capital gains tax and so, he wanted to effect the sale of the property under two separate sale deeds one for the ground floor and another for the first floor and second floor. Accordingly two agreements, were entered into. As per the first agreement in respect of the first and second floor, the sale consideration was Rs. 55,000 and as per the second agreement in respect of the ground floor, the sale consideration was Rs. 1,10,000. THE first defendant also represented that the lease in favour of the tenant had expired and the plaintiff can get possession without any defect. He also received an advance of Rs. 5,000 under each of the two agreements. After the agreements of sale and the execution of the first sale deed in respect of the first and second floor, the first defendant became scarce as he went away to Pakistan. He has also shifted his residence to Bangalore. Inspite of best efforts by the plaintiff, the sale in respect of the ground floor could not be completed. THE plaintiff also sent a draft sale deed to the first defendant for getting Income-tax clearance certificate. THE first defendant did not obtain any such certificate. He was postponing the sale with ulterior motive. Time was not the essence of the contract. THE first defendant assured the plaintiff that he would come to Madras and conclude the sale transaction is the next accounting year. THE plaintiff was always ready and willing to perform his part of the contract by paying the balance sale consideration in the year 1979 itself. THE plaintiff suffered certain calamities and on account of domestic difficulties, the plaintiff wrote a letter asking the defendant to complete the sale after some time. On 15. 11. 1979, the first defendant sent a letter to the plaintiff purporting to cancel the agreement THE plaintiff had already given a telegram on 14. 11. 1979 stating that he was willing to complete the sale immediately. THE plaintiff and his father went to Bangalore and met the first defendant and the first defendant assured to complete the sale transaction. THE first defendant did not act as per his words. THE plaintiff had sent a registered lawyer's notice on 6. 12. 1979 demanding completion of the sale transaction. But, the plaintiff received a reply from the defendant stating that the ground floor had already been sold to the tenant in occupation. THE defendant has no right to sell the ground floor to anybody else and the plaintiff alone is entitled to purchase the suit property, the ground floor of the building for convenient enjoyment of the second floor. THE first defendant has no right to cancel the agreement and execute the sale deed in favour of the second defendant. THE second defendant is not a bona-fide purchaser. She is well aware of the sale of the first and second floor and also the agreement in favour of the plaintiff. So, the alleged sale deed dated 29. 11. 1979 executed by the first defendant in favour of the second defendant in respect of the ground floor is not valid. So, the plaintiff is entitled to enforce the agreement by seeking specific performance of the agreement.

(3.) IN O. S. A. 150 of 1990, the appellant contends that she is a transferee for value paid in good faith and without notice of enforceable agreement of sale under Ex. P1, that the decree for specific performance is not sustainable and so, the plaintiff is not entitled to specific performance of the contract.