Variation of the term amounts to novation of contract.

AR.Lakshmanan, J.

The appellant/plaintiff filed O.S. No.2595 of 1981 on the file of the Fourth Additional Judge, City Civil Court, Madras, to direct the respondents/ defendants to specifically perform the agreement to sell dated 18.7.1974 and execute and register the sale deed in favour of the appellant conveying the B schedule property free from all encumbrances and for possession of the ground floor of the B Schedule property.

2. The appellant’s case in brief is as follows: The respondents are the absolute owners of the property bearing Door No.68, G.N. Chetty Road, T.Nagar, Madras-17, more fully described in the A Schedule to the plaint. The A Schedule property has an out-house, which is described in the B Schedule, with a total ground area of one ground and 800 sq.ft. which is an independent property. The entire A schedule including the B Schedule property was subject to three registered mortgages, one in favour of Hindu Janopakara Saswatha Nidhi, dated 23.12.1967 the second in favour of Permanent General Benefit Fund Limited dated 5.9.1968 ad the third one in favour of one V.Kamala, dated 4.4.1974. According to the appellant, the respondents approached her for the sale of the out-house described in the B Schedule with direct access to the property from G.N.Chetty Road, free from encumbrances. The appellant agreed for the purchase of the said property. Thereupon, both the appellant and the respondents entered into an agreement dated 18.7.1974 for the purchase of B Schedule property for a sale consideration of Rs.62,500. As and by the terms of the agreement, the appellant on various dates paid a total sum of Rs.26,200 as part of the sale price and advance. The appellant was put in possession of the first floor of the premises in part performance of the agreement to sell dated 18.7.1974, on 2.9.1974.

3. According to the appellant, the essential terms of the agreement dated 18.7.1974 were performed by her, other than the terms, the performance of which she has been prevented. It is her case that the time was not the essence of the contract and the same was not the intention of the parties. The last payment was on 10.12.1977 of a sum of Rs.700 for a fence. The sale was delayed due to the laches of the respondents. A tenant by name Marina Cabs, who was occupying the ground floor of the B Schedule property was evicted due to the efforts of the appellant as one interested in getting vacant possession of the ground floor. The appellant was always ready and willing to purchase the B Schedule property as per the terms of the agreement. The appellant was continuously persuading the respondents to complete the sale. A draft sale deed was prepared by Mr.K.A. Basheer Ahmed, Advocate, under the instructions of the appellant and the respondents on 26.7.1977, which was approved on 5.10.1977, by which the terms of the agreement was varied and the sum of Rs.30,000 payable to the mortgagee V.Kamala was agreed to be paid at the time of registration of the sale deed before the Sub Registrar. The respondents deliberately failed to execute the sale deed and trying to wriggle out of the agreement having received substantial amounts.

4. The appellant would submit that the respondents sent a lawyer’s notice on 6.10.1978 making false allegations and clearly indicating their intention of going back on the agreement alleging a breach of contract on the part of the appellant, for which a suitable reply was sent by the appellant on 25.10.1978 The respondents have no right to resile from the agreement. The appellant has performed the essential and substantial terms of the agreement and she is continuously ready and willing to perform the rest of the obligations and pay the balance of sale consideration and have the property registered in her name. The respondents are also negotiating for the sale of the B Schedule property to third parties and if they are allowed to do so, the appellant would be put to great hardship. The suit was, therefore, fil