N. AMIRTHALINGAM Vs. A. DHANAPAL

JUDGEMENT

(1.) THESE second appeals have been filed by the appellant against the judgments and decrees of the I Additional Subordinate Judge, Thiruchirapalli dated 23.12.2003 in A.S.Nos.64 and 65 of 2002 confirming the decrees and judgments made in O.S.Nos.210 and 217 of 1996 dated 27.3.2002 on the file of the District Munsif, Lalkudi.

(2.) THE gist and essence of averments in the plaint in O.S.No.210 of 1996 is as follows: The plaintiff's brother -in -law was the defendant. The suit property belong to the defendant. The defendant entered into a sale agreement with the plaintiff on 22.5.1985 for a sale consideration of Rs.22,500/ -. The plaintiff had paid a sum of Rs.15,000/ - as advance on the same day. The defendant had agreed to receive the balance amount of sale consideration of Rs.7,500/ - and execute the sale deed. No time for completion of the sale agreement was fixed. The plaintiff had paid a sum of Rs.4,000/ - to one Nagarajan, S/o. Rangasami Nadar on 21.6.1986 being the amount due by the defendant to said Nagarajan towards the mortgage deed as per the direction of the defendant. Apart from that, a sum of Rs.8,000/ - was also paid to the defendant's daughter Usha Nandhini in August, 1986. Further, a sum of Rs.1,800/ - was paid to one R.D. Doraisami, Advocate towards the lease arrears amount due and payable by the defendant to Sellammal, Landlady. Thus, the entire sale consideration has been paid by the plaintiff to the defendant. But, the defendant was evading to execute the sale deed. Hence, the plaintiff issued lawyer's notice on 30.4.1990. The defendant received the same on 2.5.1990 and he sent a reply on 16.5.1990 with false allegations and refused to execute the sale deed. The defendant agreed to return the sum of Rs.15,000/ - received by him on 22.5.1985. Since the defendant was evaded to execute the sale deed, the plaintiff wad constrained to file the suit for specific performance of contract and he prayed for a decree of specific performance.

(3.) THE gist and essence of written statement filed by the defendant is as follows: The relationship of both parties was admitted. The inception of sale agreement and receipt of advance amount and sale consideration was admitted. No time limit fixed was also admitted. The balance amount of Rs.7,500/ - should be paid on demand. Except the advance of Rs.15,000/ - no amount was paid nor offered to the defendant towards the sale agreement. Exchange of notice between the parties was admitted. The plaintiff had not paid the balance amount of sale consideration of Rs.7,500/ - and completed the agreement as agreed. Hence, the defendant demanded the plaintiff to pay the balance and complete the sale. A panchayat was also held for this purpose. In the panchayat, plaintiff had expressed his inability to pay the balance of sale price and complete the sale. The plaintiff has agreed to receive back the advance amount of Rs.15,000/ - whenever the plaintiff sell the suit property to third party. Hence, the sale agreement dated 22.5.1985 was not acted upon. The defendant was willing to repay the advance amount of Rs.15,000/ -. Taking advantage of the injunction order passed in I.A.No.269 of 1990, plaintiff was frequently attempted to trespass into and captured the suit property by force. The defendant is in the possession of the property. Hence, he prayed for the dismissal of the suit.