JUDGMENT :

T. Ravindran, J.

1. Aggrieved over the judgment and decree dated 13.10.2008 passed in O.S. No. 281 of 2007, on the file of the Principal District Court, Erode, the defendant has come forward with the present first appeal.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.

3. Suit for specific performance or in the alternative for the return of advance amount.

4. The case of the plaintiff, in brief, is that the suit property was offered for sale by the defendant and the plaintiff and the defendant entered into an agreement of sale with reference to the same on 05.02.2007 and the sale consideration was fixed at Rs. 8,39,700/- i.e. at the rate of Rs. 45/- per sq. ft. and on the date of agreement the defendant received an advance amount of Rs. 1,20,000/- and subsequently, on 20.02.2007, the defendant received another sum of Rs. 60,000/- and extended the time for the completion of the sale till the end of Aani Tamil month in 2007. The plaintiff has been always ready and willing to pay the balance sale consideration and obtain the sale deed. However, the defendant put off the execution of the sale deed by contending that there exist certain legal impediments such as non payment of stamp duty on her purchase etc., and promising to have the same cleared before registering the same in favour of the plaintiff. On many occasions, the plaintiff had expressed her readiness and willingness to complete the sale, but, it is only the defendant who had been postponing the same, as above stated, and thereafter, when the defendant started avoiding contact with the plaintiff, the plaintiff developed suspicion and since the period agreed was nearing completion, suspecting a foul play, the plaintiff was constrained to issue a telegram to the defendant and called upon her to execute the sale deed in terms of the agreement and the same was followed by a legal notice to the defendant on 16.07.2007 wherein also the plaintiff had expressed her readiness and willingness to pay the balance sale consideration and obtain the sale deed, however, the defendant failed to comply with the demand made under the telegram and the legal notice and as the defendant further endeavouring to alienate the suit property to the third parties, the plaintiff was constrained to issue a paper publication in Dinamalar daily on 22.07.2007 warning the public from dealing with the suit property and the defendant with a view to sell the suit property to the third parties for higher price and to deprive the plaintiff of her right under the sale agreement, issued a false reply dated 13.08.2007 wherein the defendant has admitted the execution of the sale agreement, receipt of advance and the other terms, but refused to execute the sale deed claiming that the agreement has become time barred. The plaintiff has been always ready and willing to perform her part of the contract and hence, according to the plaintiff, the need for the suit for the relief of specific performance.

5. The defendant resisted the plaintiff's suit by contending that the suit laid by the plaintiff is not maintainable either in law or on facts. The execution of the sale agreement dated 05.02.2007 in the presence of the witnesses for a total consideration of Rs. 8,39,700/- has been admitted by the defendant, however, according to the defendant, the plaintiff was not in a position to pay the balance sale consideration in time and complete the sale transaction and contended that 1/3 of the consideration should be paid as earnest money in the business circle and according to the defendant, the period for completing the sale transaction is fixed before the end of Panguni month, corresponding to 13.04.2007 and the plaintiff requested the defendant to extend further period till Aani month and on that request, the defendant has agreed to extend the period till Aani month as a final chance and the plaintiff has paid Rs. 60,000/- to the defendant on 20.02.2007. The defen