The plaintiff must demonstrate readiness and willingness to perform the contract to seek relief under Section 53-A of the TP Act.

JUDGMENT :

(Prayer: Appeal Suit has been filed under Order 41, Rule 1 and Section 96 of C.P.C., against the judgment and decree made dated 15.07.2003 made in O.S.No.83 of 1999 on the file of the Principal Sub Court, Gobichettipalayam.

Appeal Suit has been filed under Order 41, Rule 1 and Section 96 of the Civil Procedure Code against the decree and judgment of the Principal Subordinate Judge of Gobichettiplayam dated 15th day of July 2003 in O.S.No.23 of 2000.)

1. Assailing the common judgment dismissing the suits filed for permanent injunction and specific performance, the instant appeals are filed by the aggrieved plaintiff.

2. The appellant herein initially filed O.S.No.443/1996 on the file of the District Munsif Court at Satyamangalam on 22/08/1996 stating that he entered into a bilateral sale agreement dated 26/10/1995 with on Subbaraya gounder in respect of the suit schedule property to an extent of 7 acres for consideration of Rs.80,000/- per acre. On payment of Rs.5,50,000/- by cash towards the sale price, Subbaraya gounder delivered the possession of the suit property to him as part performance of the contract; and agreed to execute sale deed and register the same at the expenses of and the date fixed by the buyer on receipt of balance sale consideration of Rs.10,000/-. Since then he is in possession of the suit property and enjoying it peacefully. The appellant requested the vendor Subbaraya gounder to receive the balance sale consideration and execute the sale deed on several occasions. Since he failed to perform his part of contract, lawyer notice dated 14/08/1996 was issued calling upon the vendor to perform his part of contract. Instead of executing the sale deed and register the same receiving the balance sale consideration of Rs.10,000/-, the vendor and his men tried to disturb the peaceful possession and enjoyment of the appellant on 19/08/1996 with the motive of defeating and defrauding the appellants legitimate rights under the sale agreement dated 26/10/1995. Hence, relief of permanent injunction against the vendor Subbaraya gounder his men and agent restraining them from interfering in any manner the peaceful possession sought reserving the right to file separate suit for specific performance of the contract.

3. Subsequently, the appellant on 28/10/1998 filed O.S.No.83/1999 on the file of Principal Sub-Court at Gopichettipalayam. The suit for specific performance to execute the sale deed, as per the agreement dated 26/10/1995 or to repay the money ( Rs.5,50,000/-) paid towards sale consideration with 18% interest.

4. By an order dated 06/01/2000, in Tr.O.P.No.112/1999, the suit for permanent injunction O.S.No.443/1996 pending on the file of District Munsif, Sathiyamangalam was transferred to the Principal Sub Court at Gopichettipalayam re-numbered as O.S.No.23/2000 and taken up for joint trial.

5. The Principal Sub Judge dismissed both the suits vide, common judgment dated 15/07/2003. The aggrieved plaintiff, preferred appeal in A.S.No.676/2004 against the dismissal of specific performance suit O.S.No.83/1999, before the High Court having appellate jurisdiction over the subject matter and pecuniary limit. Also, preferred appeal before the District Court, Erode against the dismissal of the injunction suit and numbered as A.S.No.116/2006 based on the suit valuation. Later, the said appeal was transferred to High Court to be heard along with A.S.No.676/2004. The transferred appeal got renumbered as A.S.No.251/2006.

6. Pending appeal, the defendant in the suits, Subbaraya gounder died. His legal representatives were brought on record as respondents 2 and 3. Later the second respondent also died. Based on the Memo filed by the appellant’s counsel, the third respondent was recorded as the legal heir of the deceased second respondent.

7. Ground of Appeal:

The Courts below over looking the document and other evidence erred in holding that on the basis of Ex.A1 dated 26.10.1995, the plaintiff is not entitled to decree for sp