JUDGMENT

(Prayer: Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 20.07.2011 passed in A.S. No.45 of 2010, on the file of the Principal District Judge, Namakkal, reversing the decree and judgment dated 29.11.2008 passed in O.S. No.32 of 2008, on the file of the Subordinate Court, Tiruchengode (transferred O.S. No.809 of 2002 of Subordinate Court, Namakkal).)

1. The appellant is the defendant in O.S. No.32 of 2008 on the file of the Subordinate Court, Tiruchengode (transferred O.S. No.809 of 2002 of Subordinate Court, Namakkal). The respondent/plaintiff filed the suit for the following reliefs.

“1) To pass a decree for specific performance of contract directing the defendant to receive the balance sale consideration of Rs.25,000/- and execute a sale deed and register the same within the time to be specified by the Court and if the defendant failed to do so, order to deposit the sale price into Court, execute and register the sale deed by this Court on behalf of the defendant (or) in the alternative

2) directing the defendant to repay the advance amount of Rs.75,000/- plus Rs.25,000/- towards damages for non execution of the sale deed with interest @ 24% per annum from the date of suit till realisation,

3) award costs of suit and

4) for a permanent injunction restraining the defendant, his men, agents and attorneys from in any way alienating the properties,

5) grant such other relief or reliefs the Hon’ble Court may deem fit and proper in the circumstances of the case”.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present appeal would also be indicated.

3. The case of the plaintiff in nutshell is as follows:

The defendant executed an agreement of sale dated 22.08.1994 (Ex.A1) in favour of the plaintiff agreeing for the sale of the suit properties. The time mentioned in the agreement for the completion of transaction was three years and the sale consideration was fixed as Rs.1,00,000/-, out of which a sum of Rs.75,000/- was paid by the plaintiff towards advance to the defendant on the date of Ex.A1. The plaintiff was always ready and willing to perform her part of the contract from the date of sale agreement. The plaintiff also sent a notice undated nil (Ex.A3) to the defendant indicating her willingness to get the sale deed executed in her favour by paying the balance sale consideration of Rs.25,000/-. On receipt of the said notice, the defendant approached the plaintiff and expressed his inability to execute the sale deed in favour of the plaintiff and requested for a further period of 3 years and made an endorsement dated 20.08.1997 (Ex.A2) in this regard on Ex.A1. Thereafter, despite repeated demands by the plaintiff, the defendant did not come forward to honour the sale agreement and therefore, a lawyer’s notice dated 29.04.1999 (Ex.A4) was issued to the defendant calling upon the defendant to perform his part of the contract. The defendant sent a reply dated 12.06.1999 (Ex.A5), which according to the plaintiff contained false allegations. Hence the suit was filed by the plaintiff.

4. The suit was resisted by the defendant on the following grounds.

1) It is false to state that the defendant agreed to sell the suit properties in favour of the plaintiff for a sale consideration of Rs.1,00,000/- and that a sum of Rs.75,000/- was paid by the plaintiff towards advance.

2) The suit properties do not belong to the defendant alone and they are the ancestral properties belonging to the family of the defendant. The defendant’s wife and his minor children filed a suit for partition in O.S. No.109/1999 before the District Munsif, Tiruchengode and a preliminary decree for partition was also passed in respect of the suit properties on 13.10.1999.

3) An application for passing of final decree for partition is pending.

4) The defendant borrowed a sum of Rs.75,000/- from the plaint