JUDGMENT

(Prayer: Appeal Suit filed under Section 96 of the Civil Procedure Code against the disallowed portion of the decree and judgment made in O.S.No.50 of 2005, dated 6.10.2009, on the file of the District Judge, Karur.)

1. Aggrieved over the dismissal of the suit for the relief of specific performance, the present appeal suit came to be filed by the unsuccessful appellant/Plaintiff.

2. The parties are referred to as per their ranking before the trial Court.

3. The brief facts leading to the filing of the present appeal suit is as follows:

The defendant as a power agent of his brothers and their sons on their behalf and on his behalf had entered into a sale agreement with the plaintiff for the sale of property for a total sale consideration of Rs.13,50,000/- on 21.04.2004 and received a sum of Rs.2 lakhs as advance amount. The time agreed between the parties to complete the sale within six months from the date of sale agreement. It is the further stand of the plaintiff that the time agreed between the parties is only for document sake and not the essence of the contract. The Plaintiff is always ready and willing to perform his part of contract and is demanding the defendant to receive the balance sale consideration and to execute the sale deed. However, the defendant was postponing the same by giving some reason or other. Hence the plaintiff issued a legal notice to the defendant on 17.10.2005 calling upon him to receive the balance sale consideration and to execute the sale deed. But no reply was sent. Hence the suit is filed by the plaintiff seeking for the relief of specific performance.

4. The defendant admitted the agreement, dated 21.4.2004 and the receipt of Rs.2 lakhs as advance amount. It is the case of the defendant that the time fixed in the sale agreement is the essence of the contract. Thoughout the agreement period, the defendant is always ready and willing to perform his part of contract, however, the plaintiff has not come forward to get the sale deed executed from the defendant, despite several insistence made by the defendant. Further the plaintiff was never ready and willing to perform his part of the contract.

5. On the basis of the above pleadings, the following issues were framed for consideration:

1. Whether the time is the essence of the sale agreement?

2. Whether the plaintiff was not ready and willing to complete the terms of the agreement as claimed by the defendant, is proved?

3. Whether the plaintiff is entitled to the relief of specific performance?

4. To what other relief, the plaintiff is entitled to?

6. Before the trial Court, on the side of the plaintiff, P.W.1 was examined and Ex.A1 to Ex.A4 were marked. On the side of the defendant, D.W.1 was examined and no document was marked.

7. The trial Court, after analyzing the evidence on record, found that the plaintiff was never ready and willing to perform his part of contract and dismissed the suit for specific performance, however, the Court below has granted the alternative relief directing the defendant to pay the plaintiff the advance amount of Rs.2 lakhs with interest at the rate of 12%p.a from the date of sale agreement till the realizing of the entire sale amount. Aggrieved over the same, the present appeal suit is filed.

8. The learned counsel for the appellant would submit that though the sale could not be completed within the agreed period, the property has been developed as plots, having received substantial amount as advance to the tune of Rs.2 lakhs.The defendant has taken undue advantage and according to him some plots remain unsold.Therefore the advance amount could be adjusted by handing over the unsold plots and the plaintiff is ready to purchase those unsold plots. Hence it is the contention of the plaintiff that the specific performance may be granted towards the part of the contract.

9. Whereas, the learned counsel for the respondent would submit that the plaintiff ha