S.Jagadeesan, J: The appellants are the plaintiffs in C.S. No.509 of 1979 on the file of this Court. They filed the said suit against the respondents herein seeking a decree for specific performance of an agreement dated 17.2.1978 whereunder the respondents had agreed to sell the suit property to the appellants for a sum of Rs.2,75,000 and received a sum of Rs.25,000 by way of advance. As per the terms of the agreement, the sale is to be completed within six months from the date of intimation of the approval of the title by the appellants’ counsel. The further condition is that the sale should be free of all encumbrances. To get the approval of the appellants’ counsel. The further condition is that the sale should be free of all encumbrances. To get the approval of the appellants’ counsel, the respondents have to furnish the original title deeds to the appellants. The respondents did not comply with the condition of furnishing the original title deeds and not only avoided the compliance of the agreement; but also entered into a long term lease in respect of the other tenants in the suit property.

2. This necessitated the appellants to file the suit O.S. No.6584 of 1978 on the file of the City Civil Court, Chennai seeking a decree for injunction restraining the respondents herein from encumbering the property, stating that the appellants were always ready and willing to pay the balance of sale consideration and have the sale deed executed. Prior to the filing of the suit, the appellants intimated the respondents about the approval of title by their lawyer and the respondents herein sent a telegram dated 26.4.1978 to the appellants auditor seeking a week’s time to meet the appellants and complete the transaction. As the respondents tried to enter into a long term lease, the appellants issued a lawyer’s notice dated 19.7.1978, informing the respondents that the appellants are ready and willing to pay the balance of sale consideration and have the sale deed registered and requested the respondents to confirm the date for execution of the registration.

3. The respondents filed written statement in O.S. No.6584 of 1978 putting up a false case that the appellants agreed to discharge the loan to Sudarsan Chit Fund and since they failed to do so, the respondents entered into a long term lease with the tenants to raise funds and to discharge the loan. As the appellants did not discharge the said loan, they are deemed to be not ready and willing to perform their part of the contract and as such the respondents are not liable to execute the sale deed. Since the respondents expressed their unwillingness to execute the sale deed in the written statement filed in O.S. No.6584 of 1978, the present suit was filed, seeking the relief of specific performance.

4. The respondents filed a written statement in C.S. No.509 of 1979 wherein they admitted the suit agreement between the parties. The main defence raised by the respondents are that the appellants agreed to discharge the loan due to Sudarsan Chit Fund who already took steps to auction the property in order to recover the loan. As they did not discharge the said loan, the respondents were proceeded to enter into a long term lease in order to raise funds to discharge the said loan and the sale was avoided. The appellants, if really, had the funds, they could have discharged the loan and could have made an attempt to avoid the sale. When the appellants did not take any steps to discharge the loan, the inference is that they do not have the necessary funds either to discharge the loan due to Sudarsan Chit Fund or to pay the balance of sale consideration to the respondents. The further plea is that the present suit is barred under O.2, in C.P.C., since the appellants have failed to include the relief of specific performance in the earlier suit filed by them i.e., O.S. No.6584 of 1978 on the file of the City Civil Court, Chennai.

5. On the above pleadings the learned trial Judge framed the following

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