JUDGMENT :

D. Bharatha Chakravarthy, J.

Prayer: First Appeal filed under Section 96 read with Order XLI Rule 1 of C.P.C to allow the above appeal and set aside the judgment and decree dated 18.04.2015 of the learned II Additional Judge, District Court, Salem in O.S.No.177 of 2011 with costs.

A. The Appeal:

1. This appeal is filed by Mr. M. Vairamudi, the defendant in O.S. No. 177 of 2011 on the file of the II Additional District Judge, Salem aggrieved by the Judgment and Decree dated 18/04/2015, thereby decreeing the suit originally filed by one Mr. K.V. Janakiraman, the first plaintiff who died pending the suit and his legal representatives coming on record as plaintiffs 2 to 6 and pursuing the suit for specific performance of a sale agreement dated 17/04/2011 of a house property consisting of an RCC Building of Ground, First and Second Floors, in an extent of 784 sq.ft. of land in No.16, Vela Street, Shevapet, Salem, more fully described in the suit schedule.

2. For the sake of convenience, in this judgement the parties are referred to as per their array in the original suit.

B. The case of the plaintiffs:

3. The defendant is the owner of the suit scheduled property he having purchased the same by a sale deed dated 16/05/2007 from one Parimala Venkatesan. The defendant intended to sell the property and the plaintiff agreed to purchase the property for a total sale consideration of Rs. 43,00,000/- (Rupees Forty Three Lakhs only). The defendant had mortgaged the property with M/s. Syndicate Bank and he promised to settle the dues and get back the original documents and convey the property in favour of the plaintiff. Hence four months time was fixed for completion of the transaction. On 17/04/2011, the plaintiff paid an advance of Rs. 16,00,000/- (Rupees Sixteen Lakhs Only) and in the presence of witnesses, the deceased first plaintiff and the defendant executed the suit agreement for sale. On 21/04/2011, another sum of Rs. 10,00,000/-(Rupees Ten Lakhs only) was paid and due endorsement was made on the reverse of the agreement in the presence of witnesses.

4. Even though the plaintiff was ready with the balance consideration of Rs. 17,00,000/-(Rupees Seventeen Lakhs only) and willing to complete the transaction, the defendant did not clear the bank dues and come forward to complete the transaction. Since the original time limit of four months was coming to close, on 07/06/2011, the plaintiff issued a legal notice to the defendant. The plaintiff also waited at the Sub-Registrar’s office with balance sale consideration on 10/06/2011 as mentioned in the notice. The defendant did not turn up. In the envelope used for sending the legal notice, the name of the defendant was wrongly typed as ‘Veeramani’ instead of ‘Veeramudi’ and hence the notice returned unserved. Therefore once again the plaintiff caused another notice on 19/06/2011 with the correct name. The defendant received the notice and issued a reply on 06/07/2011 admitting the agreement and promised that he would settle the dues of M/s. Syndicate Bank and complete the transaction.

5. At request of the defendant again the plaintiff paid a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) on 05/09/2011 and again an endorsement was made on the reverse of the agreement in the presence of the witnesses. The defendant also handed over the keys of the house to the plaintiff and directed the tenant to pay rent to the defendant. However, suddenly on 05/10/2011, the defendant issued a letter addressed to the plaintiff invoking the default clause, terminating the agreement and forfeiting the advance amount. The plaintiff issued a reply notice. The defendant also broke open the locks and the matter was reported to the police, however, they adviced the plaintiff to approach the civil court. Since the OTS offered by the bank is about expire, it was averred in the plaint that the plaintiff is makin