R.GNANA ARULMONI Vs. R.S.MAHARAJAN

JUDGEMENT

(1.) The defendant in the suit in O.S.No.17 of 2009 on the file of the First Additional District Judge, Tirunelveli, is the appellant in this appeal. The respondent filed the suit in O.S.No.17 of 2009 for specific performance of an agreement of sale. The suit property consists of two items and the first item is an extent of 10 acres 47 cents and the second item is an extent of 19 acres 94 cents. It is not in dispute that the sale agreement dated 28.02.2005 was executed by the appellant in favour of the plaintiff. As per the sale agreement, the sale consideration for the first item was Rs.60,20,250/- and the sale consideration for the second item was fixed at Rs.84,74,500/-. The sale consideration for the first item was fixed at the rate of Rs.5,750/- per cent and for the second item, the sale consideration was fixed at the rate of Rs.4,250/- per cent. It is admitted that the entire land shown as item 1 of the plaint schedule was developed as Maharaja Nagar with 173 housing plots. Similarly, the second item of plaint schedule was formed out as a layout. Based on the power of attorney deed executed by the defendant in respect of first item of property, the respondent/plaintiff has also sold the plots. It is admitted that a sum of Rs.1,00,000/- was paid as advance and as per the agreement, a further sum of Rs.4,00,000/- was payable on or before 30.04.2005. It was also stated that the remaining balance sale consideration shall be paid within a period of one year i.e., 28.02.2006. For the purpose of disposing this appeal, we need not traverse into various allegations as this Court is inclined to decide the appeal on the admitted facts.

(2.) The plaintiff came forward with the suit to direct the appellant to execute the sale deed for the second item of suit property after receiving the balance sale consideration of Rs.47,30,000/-. In the plaint, it is alleged that the plaintiff had paid a sum of Rs.37,45,000/- out of the total sale consideration of Rs.84,74,500/- for second item. The plaintiff has given the particulars of payment. It is not in dispute that out of a sum of Rs.97,65,250/- alleged to have been paid by the plaintiff to the defendant both parties without any dispute agreed that a sum of Rs.60,20,250/- towards the sale consideration of the first item of property is admitted. However, it is the specific case of the appellant that the plaintiff has paid only a sum of Rs.23,25,000/- and not Rs.37,45,000/- as alleged by the plaintiff. Though the plaintiff admits that he has to pay a sum of Rs.47,30,000/- towards the balance, on the assumption that a sum of Rs.37,45,000/- had already paid, the main issue in this case is with regard to the actual payment made by the plaintiff towards the sale agreement. As against the claim of plaintiff, the appellant/defendant admitted the payment on several occasions to the tune of Rs.23,25,000/- towards the sale consideration of item No.2. The trial Court has categorically found that the plaintiff though claimed to have paid a sum of Rs.47,00,250/-, he failed to prove some of the payments and that as against the plaintiff's claim that the balance payable was only Rs.47,30,000/-, the plaintiff is liable to pay a sum of Rs.61,49,500/-. Since the plaintiff has agreed to pay the balance as per the statement of the defendant, the suit was decreed by the trial Court. The trial Court has specifically found that the plaintiff has failed to prove the payments that were made according to him. The plaintiff himself has admitted in the course of evidence that he has not made some payments which were stated to have been paid by the plaintiff in the plaint. Despite the finding by the trial Court that the plaintiff has not proved the payments by receipt or other evidence to the tune of Rs.14,19,500/-, the trial Court decreed the suit without any explanation from the plaintiff as to how the plaintiff has proved his readiness and willingness. The plaintiff has filed a suit for the following relief:

(3.) From the plaint averments and the relief, it can be seen that the plaintiff has come forward seeking specific performance of agreement and to direct the appellant to execute the sale deed for the suit second item after receiving the balance amount of Rs.47,30,000/-. After elaborate arguments it is admitted before this Court that the plaintiff has to pay the balance sale consideration of Rs.61,49,500/-.