S ANDAL Vs. K CHINNASAMY

JUDGEMENT

(1.) THE above appeal is directed against decree and judgment dated 17.8.2001 made in O.S.NO.944 of 1995 on the file of the II Additional Subordinate Judge, Coimbatore by which the relief of specific performance of an agreement dated 22.1.1995 sought for by the appellants herein was rejected.

(2.) THE facts of the case are as follows: THE appellants filed a suit for specific performance against the respondent on the basis of an agreement of sale dated 22.1.1995 executed between the appellants and the respondent in respect of the property measuring 17 cents and 429 sq.ft., (7834 sq.ft.) for a total consideration of Rs.30,57,425/- at the rate of Rs.1,70,000/- per cent. It is the case of the appellants that on the date of entering into agreement, the appellant paid a sum of Rs.4 lakhs by cheque and Rs.1 lakh by cash as earnest money deposit and part of sale consideration. THE time agreed for completion and registration of the sale deed was six months from the date of agreement. As per the terms of the sale agreement, the respondent should measure the property with reference to the boundaries and deliver the original title deeds, property tax receipts, income-tax clearance certificate, encumbrance certificate, urban land tax certificate and other documents. Despite the appellants were ready and willing to perform their part of contract, the respondent was evading the execution of the sale deed by not producing necessary documents, which necessitated the appellants to issue a notice on 15.6.1995 calling upon the respondent to produce the original title deeds and other documents. THE respondent here again failed to adhere the request. THE appellants sent another notice on 12.7.1995 expressing their readiness and willingness to purchase the property and calling upon the respondent to execute the sale deed on 21.7.1995. In the mean time the respondent by their reply notice dated 10.7.1995 denied the execution of the agreement with intention to sell the land and took a stand that the entire transaction is a simple money transaction and that the agreement was executed as a security for payment of the loan.

(3.) PER contra, it was contended that on behalf of the respondent that the finding arrived at by the trial Court is based on material evidence, which cannot be found fault. As such, no interference is called for in this appeal. In addition to that, it is also contended that the finding arrived at by the trial Court as to the genuineness of the document is not correct. Despite the fact that the respondent has not filed an appeal against that finding, it is permissible to the respondent while arguing for sustaining that portion of the decree granted in favour of the respondent, advance argument against that portion of the finding went against them.