Endorsement of additional payment acknowledges subsistence of contract; non-payment of balance does not negate readiness for specific performance.

JUDGMENT :

MANOJ MISRA, J.

1. Leave granted.

2. These two appeal(s) arise from two suits, namely, O.S. No. 73 of 2010, which was instituted by the appellant (Annamalai) against Saraswathi (for short D-1), Dharmalingam (for short D-2) and Vasanthi (for short D-3), inter-alia, for specific performance of agreement for sale dated 08.01.2010, and O.S. No. 32 of 2011 (renumbered O.S. No. 60 of 2012), which was instituted by Vasanthi (first respondent) against the appellant (Annamalai) for declaration as well as injunction qua the property which was subject matter of the sale agreement. Trial court consolidated the two suits and decided them by a common judgment, whereby O.S. No. 73 of 2010 was dismissed and O.S. No. 60 of 2012 (old O.S. No. 32 of 2011) was decreed. Aggrieved therewith, the appellant filed two first appeal(s). The first appellate court vide common judgment dated 14.11.2014 allowed the appeal(s) and thereby decreed O.S. No.73 of 2010 and dismissed O.S. No. 60 of 2012 (old O.S. No.32 of 2011). Against the first appellate court’s judgment and decree(s), two second appeal(s), namely, S.A. No. 465 of 2015 and S.A. No. 466 of 2015, were filed by Vasanthi (i.e., the first respondent) before the High Court of Judicature at Madras¹[High Court]. Both the appeals were allowed vide impugned common judgment and order(s) dated 02.02.2018. As a result, the decree of specific performance of the agreement was set aside and defendant(s) were directed to refund the earnest money along with interest.

3. Being aggrieved by High Court’s decision dated 02.02.2018, these appeal(s) have been filed with a prayer that the impugned judgment and decree(s) be set aside.

Suit No.73 of 2010

4. Appellant instituted O.S. No. 73 of 2010 alleging, inter alia, that the suit property originally belonged to Ponnusamy and his daughter Selvi; they executed registered power(s) of attorney (for short ‘power’) in favour of the appellant and Saraswathi (D- 1); ‘power’ for the first item of the suit schedule property was with D-1 whereas ‘power’ for the second item was with the appellant; based on that ‘power’, second item was sold to D-1 and his son Dhamalingam (D-2) vide sale deed dated 07.07.2009; thereafter, vide registered agreement for sale dated 08.01.2010, D-1, as ‘power’ holder of Ponnusamy and Selvi qua first item and as co-owner of second item, and D-2 agreed to sell both items to the appellant for Rs. 4,80,000; out of which, Rs. 4,70,000 was paid in advance and balance of Rs. 10,000 was to be paid within six months, though the possession of the property was handed over to the appellant on the date of the agreement; however, later, D-1 and D-2 demanded additional amount of Rs.2,00,000 against which, to buy peace, the appellant agreed to pay, and paid additional Rs.1,95,000 to D-1 and D-2 on 09.06.2010 and an endorsement to that effect was made by them on the back of the agreement; in consequence, the sale consideration increased from Rs.4,80,000 to Rs.6,75,000, out of which Rs.6,65,000 stood paid and Rs.10,000 remained to be paid on execution of sale deed; but, on 20.08.2010, D-1 and D-2 sent notice cancelling/ terminating the contract; to which, the appellant responded, vide notice dated 04.09.2010, by demanding execution of the sale deed, inter alia, claiming that the appellant had been throughout ready and willing to pay the balance amount of Rs. 10,000; later, it came to the knowledge of the appellant that D-1 and D-2 had already sold the first item of the suit schedule property to D-3 on 17.08.2010; whereafter, the defendants tried t