JUDGMENT

(Prayer: Second Appeal filed against the judgment and decree dated 04.08.2011 passed by the District Judge, District Court-II, Kanchipuram, in A.S.No.28 of 2010, reversing the judgment and decree, dated 22.11.2007, passed by the Subordinate Judge, Kanchipuram, in O.S.No.225 of 2002.)

1. This Second Appeal is filed by the defendant as against the judgment and decree, dated 04.08.2011, passed by the District Judge, District Court-II, Kanchipuram, in A.S.No.28 of 2010, reversing the judgment and decree, dated 22.11.2007, passed by the Subordinate Judge, Kanchipuram, in O.S.No.225 of 2002, which was one for specific performance of the agreement to sell, delivery of possession and permanent injunction.

2. The appellant is the defendant and the respondent is the plaintiff in the suit proceedings. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

3. The respondent herein, as plaintiff, has approached the Subordinate Judge, Kancheepuram, by filing O.S.No.225 of 2002, seeking for specific performance of the agreement to sell, entered into between the respondent/plaintiff and appellant/defendant, on 02.06.2000; delivery of possession and permanent injunction in respect of the suit schedule properties or alternatively seeking for refund of the amount paid under the sale agreement, with damages.

4. The plaint averments in brief would run thus:

(a) According to the respondent/plaintiff, he and the defendant had entered into an agreement of sale on 02.06.2000, whereby the defendant agreed to sell the suit schedule properties for a price fixed in the agreement. On the date of agreement, according to the plaintiff, the defendant had received a sum of Rs.10,000/- towards advance and thereafter, on 20.06.2000, Rs.50,000/- had been paid and received by the defendant and subsequently, another sum of Rs.1,15,000/- was paid on 09.08.2000. In all, the defendant had received a sum of Rs.1,75,000/-.

(b) According to the plaintiff, even though he was ready and willing to perform his part of the contract under the agreement dated 02.06.2000, the defendant evaded and failed to execute sale deed in respect of the property covered under the sale agreement and hence the suit was laid by the plaintiff.

5. The defendant resisted the suit by filing a detailed written statement denying the execution of sale agreement dated 02.06.2000, contenting inter alia as under:

(i) There was no concluded contract at all between the plaintiff and her, as could be seen from the sale agreement itself, relied on by the plaintiff dated 02.06.2000. According to the defendant, no final sale price had been fixed, no measurement and boundaries were indicated in the sale agreement and there was no concluded contract at all for the plaintiff to enforce the so called sale agreement dated 02.06.2000.

(ii) The plaintiff was not entitled to enforce the relief of specific performance, since he did not have the financial capacity to complete the sale, even assuming there was any valid agreement as such. The defendant further averred that the plaintiff, who expressed his inability to make further payments, apart from the payments already paid to the tune of Rs.1,75,000/-, had infact agreed to buy another smaller property for the amount he had already paid and in view of his request, some other property had been settled in favour of the plaintiff’s wife, by way of a sale, in 2002. Moreover, the