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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, P. VELMURUGAN, JJ.
Padma and Ors. – Appellant
Vs.
C. Nasi – Respondents
Appeal Suit Nos. 50 and 231 of 2011
Decided On : 20-09-2017
Civil Procedure Code,1908 - Order VI - Rule 3 - Specific Relief Act- Section 16(c) - Agreement of sale - Sale deed – Sale consideration - Decreed - Plaintiffs and defendant have entered into an agreement of sale whereby defendant agreed to sell suit schedule mentioned property owned by him to plaintiffs for per cent - On date of execution of agreement of sale, plaintiffs have paid a sum as sale advance by way of two demand drafts each for a sum bearing No. dated drawn on Indian Overseas Bank, and demand draft bearing No. dated drawn on Canara Bank - Thereafter, as requested by defendant, plaintiffs have paid a further sum by means of two demand drafts, one dated bearing No. drawn on Indian Bank, Branch and another demand draft No dated and on receipt of two demand drafts, defendant has also made an endorsement in reverse of sale agreement as an acknowledgment for having received further sum - Thus, plaintiffs have totally paid a sum as sale advance - Plaintiffs were always ready and willing to perform their part of contract by paying balance sale consideration and to get the sale deed executed in their favour- Plaintiffs have also approached the defendant on several occasions to pay balance sale consideration and to get sale deed executed in their favour, but defendant neglected and evaded to perform his part of contract under some pretext or other – Held, According to the learned Senior counsel for plaintiffs, as per clause 8 of agreement, plaintiffs are entitled to institute the suit for specific performance of agreement and to enforce the contract -Court find that even plaintiffs have sent a letter, Ex. P3 to defendant unequivocally expressing their intention to pay the balance sale consideration and to get the sale deed executed in their favour. - It is evident from the averment contained in written statement that defendant has not only stated that the advance amount paid by the plaintiffs is forfeited but also went one step ahead to contend that act of plaintiffs in not paying the balance sale consideration within time stipulated under agreement of sale dated has deprived him from purchasing another property and as such, plaintiffs are liable to compensate him for loss sustained - On other hand, clause 8 of agreement of sale dated specifically stipulates that in the event of failure on part of the plaintiffs or defendant to perform their respective obligation, either of them can seek for enforcement of contract - Therefore, Court answer point No. 3 also against the defendant holding that plaintiffs are entitled for enforcement of contract as per terms and conditions contained in the agreement of sale dated - Resultantly, A.S. No. 50 of 2011 filed by plaintiffs is allowed and A.S. No. 231 of 2011 stands dismissed - Consequently, connected CMP No. 1 of 2011 in A.S. No. 231 of 2011 is closed.
R. Subbiah, J.
1. The Plaintiffs in O.S. No. 19 of 2008 on the file of the Additional District Judge (Fast Track Court), Tirupattur, Vellore District have come forward with A.S. No. 50 of 2011 aggrieved by the decree and Judgment dated 07.10.2010 in so far as it relates to the refusal on the part of the trial Court to impose costs, while decreeing the suit for specific performance filed by them. The defendant in O.S. No. 19 of 2008 has filed A.S. No. 231 of 2011 questioning the validity of the very same decree and judgment dated 07.10.2010, whereby the suit filed by the plaintiffs for specific performance was decreed. For easy reference, the parties to these appeals shall be referred to as per their litigative status in the suit as Plaintiffs and defendant.
2. As per the averments contained in the plaint, on 01.12.2007, the plaintiffs and defendant have entered into an agreement of sale whereby the defendant agreed to sell the suit schedule mentioned property owned by him to the plaintiffs for Rs.89,000/- per cent. On the date of execution of the agreement of sale, the plaintiffs have paid a sum of Rs. 5,00,000/- as sale advance by way of two demand drafts each for a sum of Rs. 2,50,000/- bearing No. 955625 dated 30.11.2007 drawn on Indian Overseas Bank, Vellore and demand draft bearing No. 599429 dated 30.11.2007 drawn on Canara Bank, Vaniyambadi. Both the demand drafts were drawn in favour of the defendant, whereby the plaintiffs have paid a sum of Rs. 5,00,000/- as sale advance on the date of execution of the agreement dated 01.12.2007. Thereafter, as requested by the defendant, the plaintiffs have paid a further sum of Rs. 5,00,000/- by means of two demand drafts, one dated 28.12.2007 bearing No. 955688 for Rs. 2,50,000/- drawn on Indian Bank, Vellore Branch and another demand draft No. 599482 dated 28.12.2017 for Rs. 2,50,000/- and on receipt of the two demand drafts, the defendant has also made an endorsement in the reverse of the sale agreement as an acknowledgment for having received the further sum of Rs. 5,00,000/-. Thus, the plaintiffs have totally paid a sum of Rs. 10,00,000/- as sale advance. According to the plaintiffs, though time was not mutually intended as essence of the contract, the plaintiffs were always ready and willing to perform their part of the contract by paying the balance sale consideration and to get the sale deed executed in their favour. The Plaintiffs have also approached the defendant on several occasions to pay the balance sale consideration and to get the sale deed executed in their favour, but the defendant neglected and evaded to perform his part of the contract under some pretext or other.
3. According to the plaintiffs, as per the agreement dated 01.12.2007 entered into between the plaintiffs and defendant, the defendant has an obligation to (a) produce encumbrance certificate from 01.01.1970 to till the date of transaction (b) produce property tax receipt upto date (c) to form 20 feet breadth of road on the Western side of the 1st item of the schedule mentioned property (d) to measure the land with the help of qualified surveyor in the presence of the plaintiffs to ascertain the actual extent of land available for sale and (e) to produce proof for discharging the mortgage debt due to the State Bank of India, Tirupattur Branch. According to the plaintiffs, the defendant did not fulfill any of the conditions mentioned in the agreement, but whenever the plaintiffs approached him to perform his part of the contract, he postponed the execution of the sale deed by stating that he would get the nil encumbrance certificate and also fulfill other conditions contained in the agreement. In such circumstances, by letter dated 05.05.2008, the plaintiffs expressed their readiness and willingness to perform their part of the contract and called upon the defendant to perform his part of the contract. According to the plaintiffs, on receipt of the letter dated 05.05.2008, the defendant sent a re
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