S K MANAVALAN Vs. B S MARY

JUDGEMENT

(1.) The defendants are the appellants and the plaintiff is the respondent. The plaintiff filed a suit for specific performance of contract of sale on the following averments. The plaintiff was on the look-out for a house or a plot of land for building a house as she was not happy in the house she was residing at Thiagappa Mudali Street, Kilpauk. A vacant piece of land described in the plaint schedule belonging to the first defendant was offered for sale. The plaintiff entered into an agreement of sale on 14th December, 1973 and paid an advance of Rs. 1,000 to the first defendant for purchase of the suit property. As the plaintiff wanted to start the construction without delay, she wanted the plan to be submitted immediately by the first defendant, and this was agreed to and incorporated as a term in the agreement of sale. Thereupon the plaintiff applied for getting connection for water supply and also prepared a building plan and sent it to the first defendant. The first defendant suggested some alterations and the plaintiff believing that the suggestions made by the first defendant were bona fide, carried them out and prepared another plan. In the meantime the plaintiff came to know that the first defendant was negotiating the sale of the property. Since the first defendant did not sign the plan and forward the same to the Corporation as agreed and execute the sale deed within the period of three months agreed to in the agreement of sale, the plaintiff after notice has filed a suit for specific performance of the contract of sale.

(2.) Defendants 2 to 4 are the sons and daughter of the first defendant. The defendants in their written statement have raised the following pleas; what was agreed to be sold under the agreement of sale dated 14th December, 1973 was not an independent and separate piece of land, but part of No. 17/1, Kilpauk Garden Road, Madras. Even at the time of agreement of sale the defendants pointed out to the plaintiff the difficulties in the way of selling the suit property and wanted the plaintiff to make sure whether the Corporation of Madras would sanction the plan for construction of a building on a plot of land measuring less than 1-1/2 grounds, contrary to the rules and whether they would permit the sub-division of the plot without leaving a gap of 12 feet for entrance to the rear portion. It was agreed that to the benefit of both parties the sanctioning of the plan by the Corporation of Madras should be made a condition precedent for sale of the plot. It was then agreed that the plaintiff should prepare a plan and hand it over to the defendants for being submitted to the Corporation of Madras for sanction and the sale deed had to be executed only if the plan was sanctioned. Clause 8 of the agreement provided that if the plaintiff fails to get the sanction within three months from the date of agreement, the advance of Rs. 1,000 paid should be returned. The plaintiff, through her husband, made enquiries in the Corporation and came to know that the plan will not be sanctioned since the sub-division of the property may not be granted and that she cannot construct the building with the plan sanctioned in favour of another person. It was the plaintiff who had committed the default and knowing that she has defaulted, had issued a suit notice to the defendants. Even otherwise, since the sanction of the plan was not obtained within three months from the date of agreement the plaintiff at best would be entitled to refund of advance, and the suit for specific performance is misconceived.

(3.) On these findings the trial Court decreed the suit with the following directions: