Specific performance of an agreement is not discretionary when the execution of the agreement is proved, part sale consideration is proved, and the plaintiff is always ready and willing to perform his part of the contract.

JUDGMENT

(Prayer: Appeal Suit filed under Section 96 of CPC to set aside the judgment and decree dated 13.08.2018 in O.S.No.15 of 2014 on the file of the Sessions (Fast Track Mahila) Court, Namakkal.)

1. The defendant in O.S.No.15 of 2014 on the file of the Sessions (Fast Track Mahila) Court at Namakkal, is the appellant herein.

2. O.S.No.15 of 2014 had been filed by the respondent herein, seeking specific performance of an Agreement of Sale with respect to the vacant land totally measuring 2.73 acres, situated in S.No.504/1A to an extent of 1.95 acres and in S.No.504/2A to an extent of 0.78 acres at Rasipuram in Namakkal District.

3. The said suit came up for consideration before the Fast Track Mahila Court, Namakkal and by judgment dated 30.08.2018, the suit was decreed with costs and one month time was granted to the defendant to perform the agreement and execute the sale deed, failing which, the Court shall execute the sale deed. The plaintiff was directed to pay the balance sale consideration of Rs.10,00,000/-. Questioning that particular judgment and decree, the defendant has filed the present Appeal.

O.S.No.15 of 2014:-

4. The plaintiff / Madheswaran had filed the suit for specific performance with respect to land totally measuring 2.73 acres in Rasipuram, Namakkal District, pursuant to an agreement dated 10.06.2013 with the defendant. The total consideration was fixed at Rs.15,00,000/- and an advance of Rs.5,00,000/- had been paid. The period for completion of the agreement was eleven months, which ran till 09.05.2014.

5. The property originally belonged to the husband of the defendant who had purchased it by sale deed dated 20.02.1974. He died on 20.12.2009. The son and daughter had released their 2/3rd share by release deed dated 23.07.2010 in favour of the defendant. The defendant then entered into an agreement with the plaintiff on 10.06.2013 to convey the said lands. It was stated that on or about three months from the date of agreement the defendant had issued a legal notice on 30.09.2013 claming that she was an illiterate and that she had entered into the agreement thinking it was the loan agreement and that she was prepared to return back the advance amount. A reply was issued on 10.12.2013 by the plaintiff. He also stated that the defendant should come to the Subhttps:// Registrar office on 23.12.2013 to execute the sale deed. It was also stated that the defendant produced the original title deeds. It was stated that since there was refusal to perform the terms of the agreement, specific performance must be directed by the Court.

6.The defendant filed a written statement denying that she agreed to sell the suit property and had executed an agreement of sale on 10.06.2013 by receiving the advance of Rs.5,00,000/-. She stated that the defendant sought a loan of Rs.5,00,000/- from one Manimaran and he wanted the original documents to be given and also documents to be executed for advancing the said loan. In good faith, the original documents were handed over to Manimaran. The defendant executed two documents in favour of Manimaran and a person came along with him and registered the same on 11.06.2013. After five months, when the defendant sought return of the title deeds, Manimaran informed that he had become the owner of the suit property. When the defendant took out an Encumbrance Certificate, she came to known that Manimaran and the plaintiff had cheated her. It was stated that a Power of Attorney had been created in favour of Manimaran and an Agreement of Sale had been created in favour of the plaintiff. The defendant claimed that she did not know the plaintiff. She cancelled the Power of Attorney on 05.09.2013. She then issued a legal notice on 30.09.2013. She sought for cancellation of the agreement. It was claimed that the properties were far more valuable and there was no necessity for the defendant to sell the suit property at such a low price. She disputed the statement that the plaintiff was waiting in the Sub