Abandonment of contract whether can be presumed.

Thangamani, J.

Appellant is the plaintiff in O.S.No.323 of 1981 in the Court of Subordinate Judge of Madurai. He instituted that suit for specific performance of the agreement of sale under Ex.A-1 dated 212. 1975 entered into between himself and respondents 1 to 3. The terms of the agreement disclose that out of the sale consideration of Rs.85,000 respondents 1 to 3 have received an advance of Rs.2,000 on that day. The vendors have agreed to reserve a sum of Rs.22,000 with the plaintiff for the discharge of an earlier mortgage deed dated 1. 1973 executed by them along with their mother in favour of one Bhagavathi Ammal for Rs.15,000. They have also agreed to reserve Rs.5,000 with the plaintiff for obtaining a release deed from respondents 4 and 5 who are their sisters. The appellant was to pay the further sum of Rs.10,000 when respondents 1 to 3 get the tenants vacated from the premises and surrendered vacant possession. The appellant is to keep the balance of sale consideration of Rs.30,000 as deposit and pay interest for the same at 12% p.a. The remaining money was to be paid before the Sub Registrar at the time of registration. The appellant claims that time is not the essence of the contract under Ex.A-1. Respondents 1 to 3 had received various amounts from 11. 1976 to 8. 1977 as evidenced by the entries in Ex.A-4 Account Book. Besides they had received Rs.3,000 and Rs.7,000 under Ex.A-2, dated 2. 1976 and Ex.A-3, dated 112. 1976 respectively. In the mean while, Tamil Nadu Act 34 of 1976 came into force under which the vendors had to obtain permission from the Assistant Commissioner of Urban Land Tax, Madurai for conveying the property. But inspite of request from the appellant, respondents 1 to 3 had not made any effort in this direction. The vendors had also failed to get the release deed from the sisters who are respondents 4 and 5. Though they have received Rs.10,000 from the appellant on 16. 1977 under Ex.A-6 receipt for paying the same to the tenants, vacant possession has not yet been obtained. Though he is ready and willing to perform his part of the contract, respondents 1 to 3. have been delaying the execution of the sale deed.

2. Respondents 1 to 3 contested the claim of the appellant contending that there was no subsisting contract for sale on the date of suit. As the appellant could not get the sale transaction completed as agreed, in 1977 itself he received back the moneys paid by him and surrendered possession of the property to them. He was given possession of property on 16. 1977 under definite understanding that he should find sufficient fund for finishing the transaction. However, appellant who was paying the amounts in driblets, could not collect lumpsum and so abandoned the contract and vacated the building. These respondents are not governed by the provisions of Act 34 of 1976. Thereafter, these respondents toiled a lot to collect funds to discharge the mortgage. In fact the mortgagee had filed the suit for the recovery of the mortgage money. Respondents 6 and 7 claim that they are bona fide purchasers of the property for valuable consideration from respondents 1 to 3.

3. The trial court found that the appellant was never ready and willing to perform his part of the contract and in fact he abandoned the same. And respondents 6 and 7 are bona fide purchasers for value which is binding on the appellant. Accordingly, while negativing the claim for specific performance, it decreed the suit directing defendants 1 to 3 to pay Rs.28,805 with interest from the respective dates of receipt. And the parties were directed to bear their respective costs.

4. While the plaintiff challenges the said decree and judgment in this appeal and seeks specific performance of Ex.A-1 agreement, respondents 1 to 3 herein have filed cross objection disputing the liability to pay the sum awarded and respondents 4 and 5 have also filed cross objection for not awarding costs in their favour.

5. Learned Subordinate Jud