JUDGMENT :

S.S. SUNDAR, J.

Prayer: Appeal suit filed under Section 96 of CPC and under Order 41 Rules 1 and 2 of CPC to set aside the decree and judgment passed by the learned Additional District Judge, FTC No. 1, Chengalpattu dated 30.09.2008.

Prayer: Appeal suit filed under Section 96 of CPC and under Order 41 Rules 1 and 2 of CPC against the judgment and decree against the judgment and decree dated 30.09.2008 made in O.S. No. 420/2006 passed by the learned Additional District Judge, Fast Track Court No. 1, Chengalpattu in disallowing the costs.

1. The defendants in the suit in O.S. No. 420/2006 on the file of the Additional District Court cum Fast Track Court No. 1, Chengalpattu, are the appellants in A.S. No. 1011/2008. The plaintiff in the said suit is the appellant in A.S. No. 1067/2009. Since both the appeals arise out of the same judgment and decree in O.S. No. 420/2006, both these appeals are heard and disposed of by this common judgment.

2. Since the plaintiff as well as the defendants have filed independent appeals against the judgment and decree of the Trial Court, reference to the appellants would mean defendants and the plaintiff will be otherwise referred to as the respondent.

3. Brief facts that are necessary for the disposal of the above Appeal Suits are as follows:

(a) The appellants in A.S. No. 1011/2008 are the defendants. The respondent in A.S. No. 1011/2008 who is the appellant in A.S. No. 1067/2009, filed the suit in O.S. No. 420/2006 for specific performance of an Agreement of Sale dated 04.01.2006 and for directing the defendants to deliver possession of the suit property to the plaintiff.

(b) The suit property is a substantial property measuring an extent of about 14.10 acres comprised in several survey fields in Vitalapuram Village, Tirukazhukundram Taluk, Kancheepuram District. It is the case of the plaintiff that defendants entered into a Sale Agreement with the plaintiff in respect of the suit property on 04.01.2006. It is further stated that the sale consideration was fixed at the rate of Rs. 9,100/- per cent and the total sale consideration was arrived at Rs. 1,28,31,000/-. On the date of Agreement, the plaintiff paid a sum of Rs. 25 lakhs as advance and the receipt of advance was also acknowledged by defendants in the Agreement which is marked as Ex.A1. As per the Agreement under Ex.A1, the sale has to be completed within two months by the plaintiff by paying the balance of sale consideration. However, in the plaint itself the plaintiff has stated that time is not the essence of the contract even though two months time was fixed in the Sale Agreement. It is also stated by the plaintiff that in order to get legal opinion, the defendants had agreed to hand over copies of the documents relating to the suit property. Stating that the defendants have not furnished the copy of the Cancellation Deed dated 24.12.1998 and the Will dated 26.08.1969 said to have been executed by one Thiru. Govindaraja Mudaliar in favour of Thiru. V.G. Kannappa Mudaliar, it is contended by the plaintiff that the plaintiff could not proceed with the sale as contemplated under the Sale Agreement.

(c) It is further stated in the plaint that the plaintiff who measured the suit property during the last week of January 2006, found that there is some shortage in the extent available on ground and approached the defendants and explained it to the husband of the 1st defendant. However, the plaintiff has stated in the plaint that he expressed his readiness and willingness to pay the balance and the Sale Deed at all material times and that, it was the defendants who evaded to perform their part of the contract in spite of plaintiff's repeated demands and approaches.

(d) The plaintiff issued a notice on 10.05.2006 calling upon the defendants to come and execute the Sale Deed after receiving the balance of sale consideration. The said notice was returned with an endorsement “left.” It is then stated that the plaintiff sent another notice to one