K M RAJENDRAN Vs. ARUL PRAKASAM

JUDGEMENT

(1.) First defendant in O.S. No. 57 of 1984 on the file of subordinate Judge, Kuzhithurai, is the appellant in the above appeal. First respondent herein/plaintiff in that suit filed the same for specific performance of an agreement dated 12-1-1982 and also permanent injunction restraining the first defendant from disposing of the property covered under the agreement either in favour of the 2nd defendant or in favour of the third parties. The trial Court after accepting the case of the plaintiff, decreed the suit as prayed for. Aggrieved by the said decree, the first defendant has filed the present appeal as stated above.

(2.) The case of the plaintiff is briefly stated hereunder :-It is stated by the plaintiff that the plaint schedule property originally belonged to one Francis who gifted the same to the first defendant under a gift deed dated 19-1-1977. By virtue of the said gift deed, the first defendant became the owner and he constructed a building bearing No. 31-10-209-3. While so, the first defendant entered into a registered agreement with the plaintiff on 12-1-1982 to sell the plaint schedule property to the plaintiff for a sum of Rs. 46,000/- after receiving a sum of Rs. 20,000/- on the same date towards part payment of sale consideration. The said agreement was registered in the Nagercoil Registrar's Office. As per the said agreement of sale, the first defendant agreed to evict the second defendant, who is a lessee under the first defendant on or before 1-5-1982 and give vacant possession to the plaintiff clearing all encumbrances and the plaintiff should pay the balance sale consideration of Rs. 26,000/- within 2 months from the date of such handing over of the vacant possession and get the sale deed executed. The first defendant has handed over to the plaintiff the copy of gift deed, patta book and notice of demand of property tax. It is further stated that on 1-5-1982 the plaintiff approached the first defendant and required him to hand over the vacant possession and complete the contract of sale after receiving the balance amount. The first defendant was postponing. The plaintiff informed the second defendant also about the agreement of sale in his favour. Since repeated demands for the completion of sale was futile, even though the plaintiff is ready with balance sale consideration of Rs. 26,000/-, he has filed the suit. It is further stated that the first defendant wants to resile from the original contract of sale in favour of the plaintiff and to sell the plaint schedule property to strangers and thereby appropriate huge money. The first defendant is not comptent to do that. He is bound by the agreement and he is to execute the sale deed after evicting the 2nd defendant. The defendants 1 and 2 have colluded together and are making arrangements to have a sale deed executed in favour of 2nd defendant. Therefore, the first defendant is to be restrained by way of an injunction restraining him from executing any sale deed in favour of any stranger or the 2nd defendant other than the plaintiff. Second defendant is aware of the agreement of sale. It is also specifically pleaded that the plaintiff is always willing and ready to pay the balance money and get the sale deed. The first defendant is evading. It is also stated that he has deposited the balance sale amount into bank and produced the pass book and as such he is entitled to claim mesne profits at the rate of Rs. 460/- per month from the date of suit.

(3.) The first defendant filed a written statement wherein he has admitted the execution of the sale agreement as contended by the plaintiff. However, it is stated that the sale price was only nominal one. It is further stated that the terms of the agreement narrated in par 4 of the plaint are more or less correct. It is stated by the first defendant that the plaintiff's father-in-law and his wife's brothers, Selvaraj and Stephen Maryadas belong to Ramanputhur. They are known to the first defendant for a long time. When the first defendant wanted to sell the building he was put into touch with Esumarayan and his sons by one Lucas who is one of the attestors in the agreement. The first defendant entertained the idea of selling the building as he was in need of money. He is also residing in the building. A portion is let out to the second defendant for his business. The negotiations were mainly with Esumaryan and his son Stephen Maryadas, who is a practising doctor. Selvaraj was present occasionally. The plaintiff who is the son-in-law of Esumarayan was present only once. It is further stated that even at at the time of agreement and negotiations, the property was worth-not less than Rs. 2 lakhs. Owing to necessitous circumstances, the first defendant agreed to sell for Rs. 96,000/-, and he had spent more than Rs. 60,000/- to put up the building alone. Esumarayan and his son Stephen took advantage of necessitous circumstances of the first defendant of which they were fully aware in striking a deal to purchase the property at the low price of Rs. 96,000/- . It is also contended that Esumarayan and the doctor son made arrangement for preparing the agreement to sell. They said that it would be advantageous to have the sale price put at Rs. 46,000/- instead of the real negotiated price of Rs. 96,000/-. They assured that though the low figure is stated in the agreement they would pay the full amount before execution of the sale and they would not enforce the agreement to sell. The first defendant believed the representations reposing confidence in them. At the time of the agreement, Selvaraj had also come. Esumarayan and his sons fully know about the conditions on the basis of which agreement should be executed. The plaintiff was also fully aware. It was under the above circusmtances, the agreement to sell was got prepared by Esumarayan and his sons and first defendant executed the agreement and presented the document for registration. The first defendant was paid the sum of Rs. 20,000/- only after the execution and presentation was over. The amount was paid by Selvaraj at the first defendant's house. The plaintiff was not present when the document was prepared, executed and presented for registration and when amount was paid. The first defendant was also ready to execute the sale deed provided he was paid the entire consideration of Rupees 96,000/- minus the sum already received. Esumarayan and his sons consequentally the plaintiff were not willing. Really the plaintiff is only a name lender. The filing of suit is an act of deceit. It is not desirable to seek sale for the sum of Rs. 46,000/- which is a grossly inadequate consideration considering the real worth of the property. With these averments, the first defendant prayed for dismissal of the suit.