S RAMAKRISHNAN Vs. R M SUBBIAH

JUDGEMENT

(1.) 1. These appeals are directed as against the judgment and decree of the learned Single Judge in C.S.Nos.1586 of 1988 and 130 of 1990.

(2.) THE case of the plaintiff in C.S.No.1586 of 1988 is as follows: THE suit property door No.31,Jambulinga Naicken Street,Nungambakkam, Madras-34 originally belonged to one D.K.Sundaresan, the father of the defendant and after his death, the defendant and is brother Rathnam became owner of the suit property. THE other heirs of late Sundaresan relinquished their right. THE defendant offered to sell his undivided half share in the A schedule property to the plaintiff for a sum of Rs.5,12,500. THE plaintiff accepted the offer and the plaintiff and the defendant entered into an agreement dated 2.11.1986, in respect of the undivided half share and the transaction was agreed to be completed on or before 30.4.1987. THE plaintiff paid a sum of Rs.50,501 towards the sale consideration on the date of agreement. If there was any default on the part of the defendant to perform his part of the contract, the defendant undertook to pay compensation at the rate of Rs.5,000 per month until such time the deed of sale is executed and registered. THE defendant subsequently received several payments to complete the sale viz., Rs.2,50,000 on 20.8.1986, Rs.75,000 on 27.12.1987, 50,000 on 10.1.1988 and Rs.12,500 on 14.1.1988. All these payments have been acknowledged by the defendant by endorsements made on the agreement dated 2.11.1986. Even after receiving a total sum of Rs.4,38,001 out of the sale consideration of Rs.5,12,500, the defendant has been evading to complete the sale. THE defendant has not executed and registered the sale deed. Under the terms of agreement, the balance of sale consideration after deducting the sum of Rs.50,501, is payable only at the time of execution and registration of the sale deed. THE defendant is wilfully evading to execute and register the sale deed. So, the defendant is liable to pay damage at the rate of Rs.5,000 per month for the delay until the execution and registration of the sale deed and delivery of possession. THE brother of the defendant S.Rathnam also offered to sell his undivided half share in A schedule property and executed and presented for registration a Deed of Sale on 13.12.1988 pursuant to the agreement with him and has also delivered to the plaintiff the ground floor portion of A schedule property which has been in his possession. When the brother of the defendant put the plaintiff in possession of the ground floor portion of A schedule property, the defendant has to be injuncted from interfering with the plaintiff's possession of the ground floor of A schedule property. THE plaintiff has always been and is ready and willing to perform his part of the contract. Only the defendant is evading to perform his part of the contract. Hence, the plaintiff has come forward with this suit for directing the defendant to execute and present for registration a deed of sale in terms of the agreement dated 2.11.1986 conveying the defendant's undivided half share in A schedule property and deliver possession of the first floor occupied by the defendant on or before a date fixed by the court failing which directing execution of the sale deed in terms of the agreement dated 2.11.1986 by court conveying B schedule property to the plaintiff and directing delivery of possession of the first floor of A schedule property to the plaintiff through court; directing the defendant to pay a sum of Rs.5,000 per month from 1.5.1987 till the date of delivery of possession; and for grant of injunction restraining the defendant from interfering with the plaintiff's possession of the ground floor of A schedule property. [Para Nos.3 to 11 omitted - Ed.]

(3.) THE defendant contends that he wanted to get partition among the brothers and only after partition, execution of the sale deed can be considered. In Ex.P-12 letter, the defendant had proposed to have partition before the sale deed. THE plaintiff had sent a reply under Ex.P-14 stating that the plaintiff is not concerned about any partition between the brothers and the plaintiff requested to complete the sale transaction. P.W.1's evidence is that the defendant did not complete the sale transaction as requested by him and so, he sent lawyer's notice Ex.P-15. THE defendant wrote letter Ex.P-16 to the plaintiff asking the plaintiff to pay the balance of sale consideration and also sent the draft sale deed. P.W.1 states that he has sent the draft sale deed dated 7.12.1997 and also mentioned about the draft sale deed in his letter Ex.P-17. Even with regard to payment of balance sale consideration, the defendant sent letter Ex.P-18 asking the plaintiff to retain a sum of Rs.10,000 and pay him Rs.60,000. THE plaintiff has also sent reply under Ex.P-19 stating that he was ready with the balance of sale consideration and wanted the defendant to complete the sale deed without any further correspondence. THEse documents clearly reveal that the plaintiff was always ready and willing to perform his part of the contract.