M. Venugopal, J.

1. The Appellant/Defendant has preferred the present Original Side Appeal as against the Judgment and Decree, dated 04.01.2017 in C.S.No.760 of 2013 passed by the Learned Single Judge.

2. Earlier, the Learned Single Judge, while passing the impugned Judgment in C.S.No.760 of 2013, dated 04.01.2017 filed by the Respondents/Plaintiffs, at paragraph 27, had observed the following:

“27. In the result, the suit for specific performance is dismissed. However, the suit is decreed for return of the advance amount of Rs.35,00,000/- along with interest at the rate of 6% per annum from the date of payment till the date of realization. There is no order as to costs. The counter claim preferred by the defendant is also dismissed."

3. According to the Appellant/Defendant, he, being the owner of the property measuring an extent of 5005 sq. ft. at Neelankarai, obtained a loan from the State Bank of India, Main Branch, Chennai-600 001, by mortgaging the suit property and since he failed to repay the amount due to the afore stated Bank within the specified period, because of sudden fall in his business, the Bank took steps to bring the properties for auction. Only with a view to avoid public auction of the properties, the Appellant/Defendant had decided to sell the suit property at Neelankarai.

4. The Respondents/Plaintiffs had entered into a Sale Agreement with the Appellant/Defendant on 21.11.2010. As per the terms of the Sale Agreement, the sale consideration of the suit property was fixed at Rs.2,10,00,000/-. Although the Respondents had agreed to pay Rs.30,00,000/- in respect of advance, on the date of Agreement viz. 21.11.2010, they paid only Rs.16,00,000/- in cash on that date and issued post-dated cheques dated 08.01. 2011 for Rs.13,00,000/- and issued a Cheque, dated 21.11.2010 for Rs.1,00,000/-. By virtue of the covenants of the Sale Agreement, the Respondents/Plaintiffs, according to the Appellant/Defendant, had assured to pay the remaining sale consideration of Rs.1,80,00,000/- within a period of three months in accordance with the Sale Agreement, on or before 20.02.2011.

5. The crystalline stand of the Appellant/Defendant is that the Respondents/Plaintiffs had not paid the remaining sale consideration of Rs.1,80,00,000/- within the stipulated time, viz. before 20.02.2011 and on 09.04.2011 (after the lapse of the time limit specified in the Sale Agreement), the Respondents/Plaintiffs, with a malafide intention to create a cause of action, for future legal proceedings, without the knowledge of the Appellant/Defendant, had transferred a sum of Rs.5,00,000/- vide RTGS to his Account and when the Appellant/Defendant caused an enquiry into the same, the Respondents/Plaintiffs had assured to pay the remaining sale consideration within a few days from then. Unfortunately, the Respondents/Plaintiffs had failed to honour their words and also committed default in payment of balance sale consideration.

6. The Appellant/Defendant in order to sell any one of the properties and to pay the dues to the Bank, took desperate efforts in selling any one of the properties and ultimately, received an offer in regard to the property at Neelankarai and he had to sell the same for a price during December 2011.

7. It is represented by the Learned Counsel for the Appellant/Defendant that on an earlier occasion, the Appellant/Defendant had entered into a Joint Venture Agreement, in regard to the Neelankarai property, as he had no intention to sell the same. Further, because of the reason, the Respondents/Plaintiffs had failed to honour their promise, the Appellant/Defendant was perforced to sell the afore stated property to a person with whom he had entered into a Joint Venture Agreement.

8. At this stage, the Learned Counsel for the Appellant/Defendant submits that the Learned Single Judge found that the Respondents/Plaintiffs were not willing to execute the Sale from the beginning and because of the fact that the Respondents/Plaintiffs fail