Validity of sale agreement, readiness and willingness to perform the contract, and starting point for limitation period.

JUDGMENT

(Prayer: This Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree, dated 23.09.2014, made in A.S.No. 17 of 2014, on the file of the II Additional District and Sessions Judge, Thoothukudi, confirming the judgment and decree, dated 05.02.2013, made in O.S.No.178 of 2011, on the file of the Subordinate Judge, Thoothukudi.)

1. This second appeal has been filed against the order, dated 23.09.2014, in A.S.No. 17 of 2014 on the file of the II Additional District and Sessions Court, Thoothukudi, confirming the judgment and decree, dated 05.02.2013, passed in O.S.No.178 of 2011 on the file of the Sub Court, Thoothukudi. The appellant herein is the first defendant, the first respondent herein is the plaintiff and the second respondent herein is the second defendant in the original suit.

2. The first respondent herein/plaintiff has filed a suit for permanent injunction in O.S.No.178 of 2011 on the file of the Sub Court, Thoothukudi. The suit was allowed by the trial Court. Against which, the appellant herein/first defendant has filed an appeal in A.S.No.17 of 2014, on the file of the II Additional District and Sessions Court, Thoothukudi. That appeal was dismissed by the first appellate Court. Against which, the appellant herein/first defendant has filed the present second appeal.

3. Brief substance of the plaint, in O.S.No.178 of 2011, is as follows:

3.1. The suit properties belonged to the first defendant. The first defendant agreed to sell the property for a sum of Rs.60,000/- per acre. The rate for 15.71 acres was fixed as Rs.9,42,600/-. On 14.09.1994, the first defendant received a sum of Rs.50,000/- as advance and he has executed a sale agreement. On 20.10.1994, the first defendant received a sum of Rs. 7,50,000/- towards further payment and handed over the patta, Encumbrance Certificate and other documents, except the documents that were kept in the Bank. When ever the plaintiff approached the first defendant, the first defendant promised to execute the sale deed after repaying the Bank loan. When the first defendant tried to sell the property to third persons, the plaintiff issued a paper publication on 04.03.2008. The first defendant issued a reply paper publication on 08.03.2008.

3.2. Later, the plaintiff came to know that the second defendant filed a suit against the first defendant in O.S.No.7 of 2000 and the same is pending before the Sub Court, Thoothukudi. The plaintiff came to know that the first defendant executed another sale agreement in favour of one Stephen Munindran, suppressing the earlier sale agreement in favour of the plaintiff. The said Stephen Munindran filed a suit against the first defendant in O.S. No.33 of 2008. The plaintiff is reserving his right to redeem the mortgage, dated 15.09.1994. The plaintiff is always ready and willing to perform his part of the Contract. The plaintiff sent an advocate notice on 29.08.2008. The first defendant sent a reply notice on 11.09.2008 with false particulars. Copy of the notice was served on the second defendant. There was no reply from the second defendant. The suit was filed for a prayer of specific performance and for a prayer of injunction not to alienate the property to any other third person.

4. Brief substance of the written statement filed by the first defendant, in O.S.No.178 of 2011, is as follows:-

4.1. It is wrong to state that the first defendant agreed to sell the property to the plaintiff for a sum of Rs.9,42,600/- and that he had executed a sale agreement on 14.09.1994. It is wrong to state that on 20.10.1994, the first defendant received part payment towards further advance on the sale agreement. There is no necessity for the first defendant to sell the property. Already the property was mortgaged with the Indian Overseas Bank and the Bank has filed a suit against the first defendant. It is true that the first defendant executed a sale agreement in favour of one Stephen Munindran and he filed a sui