V. Ramasubramanian

The plaintiffs in O.S.No.82 of 2008 on the file of the I Additional District and Sessions Court, Tiruchirappalli, are the appellants herein. They have come up with the present regular appeal against the judgment and decree of the trial Court dated 10.1.2009, rejecting their prayer for specific performance of an agreement of sale of immovable property, but granting a decree for refund of advance amount together with interest at 15% per annum with annual rests and proportionate costs.

2. We have heard Mr. T.R. Rajagopalan and Mr. AR.L. Sundaresan, learned Senior Counsel appearing for the appellants, Mr.T.V.Ramanujun, learned Senior Counsel appearing for the respondents 1 to 3 and Mr.V.T. Gopalan, learned Senior Counsel appearing for the respondents 4 and 5.

3. The plaint averments, in brief, are as follows:-

(i) That the defendants 1 to 3 represented to the plaintiffs that they are the absolute owners, in possession and enjoyment of the properties of a total extent of 75 acres and 23-1/2 cents in Irungalur and Ayakudi villages of Mannachanallur Taluk, Tiruchirappalli District, described in Schedule 'A' to the plaint;

(ii) That believing the representation of the defendants 1 to 3, the plaintiffs negotiated with them and arrived at an agreement for the purchase of the said properties for a consideration of Rs.9,000/-per cent, but working out the total sale consideration payable at Rs.6,68,38,500/-;

(iii) That an agreement was entered into in writing on 16.5.2007 incorporating the terms of the agreement and recording the payment of an advance amount of Rs.1,63,00,000/-;

(iv) That the plaintiffs agreed to pay the balance sale consideration of Rs.5,05,38,500/- at the time of registration;

(v) That under Clause No.1 of the Sale Agreement, the plaintiffs were entitled to inform the defendants 1 to 3 on or before 31.7.2007 and get ready with the Sale Deed on requisite stamp papers and upon tendering the balance sale consideration, the defendants 1 to 3 were to execute the Sale Deed in favour of the plaintiffs or their nominees and put them in possession;

(vi) That under Clause 9 of the Agreement, the defendants 1 to 3 declared that they had absolute and marketable title to the property and that there were no encumbrances, charges, lien, lis pendent, attachment, etc., and that if any such encumbrances was discovered later by the plaintiffs, the plaintiffs had the option to rescind the Agreement and claim refund of the advance with interest at 15% per annum compounded on yearly rests;

(vii) That under Clause 10, the plaintiffs also had the alternative option to discharge any such liability from out of the balance sale consideration and compel the defendants 1 to 3 to execute the Sale Deed;

(viii) That under Clause 11, the original title deeds and patta pass book relating to the property were handed over to the plaintiffs;

(ix) That the original title deeds relating to most of the properties described in Schedule 'A' to the plaint were handed over by defendants 1 to 3 to the plaintiffs;

(x) That in respect of some properties, not owned by them, the defendants 1 to 3 claimed to have paid the entire sale consideration and got Powers of Attorney executed in their favour by the original owners;

(xi) That after entering into a Sale Agreement on 16.5.2007, the plaintiffs paid a sum of Rs.1,37,00,000/- on the very next day viz., 17.5.2007 and the same was acknowledged by the defendants 1 to 3 by making an endorsement on the reverse of the first page of the Sale Agreement;

(xii) That again on 30.6.2007, the plaintiffs made a further payment of Rs.1,00,00,000/-and the defendants 1 to 3 acknowledged the receipt of the said payment on the reverse of the first page of the Sale Agreement, thereby acknowledging the receipt of a total advance amount of Rs.4,00,00,000/-;

(xiii) That though the plaintiffs were always ready and willing to pay the balance sale consideration and have a Sale Deed executed, right from the date of t