The Court's decision emphasizes the importance of the Court's power to extend the time for payment of purchase money and the discretion to rescind the contract under Section 28(1) of the Specific Relief Act, 1963.

JUDGMENT :

[Prayer : Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 04.04.2013 made in A.S.No.113 of 2012 on the file of the Principal District Court, Erode reversed the judgment and decree dated 02.03.2012 made in O.S.No.84 of 2005 on the file of the First Additional Sub Court, Erode.]

The plaintiff is the appellant in this Second Appeal.

2. The plaintiff filed the suit seeking for the relief of specific performance and for permanent injunction or in the alternative, for refund of the advance amount that was paid pursuant to the agreement of sale dated 26.08.2004 and to create a charge over the suit property till the payment of the amount with interest, against the defendant.

3. The case of the plaintiff is that the defendant is the absolute owner of the suit property and that he offered to sell the suit property to the plaintiff. After negotiation, they entered into an agreement of sale on 26.08.2004 (Ex.A1). As per the agreement, the total sale consideration was fixed as Rs.2,60,000/-. The plaintiff paid a sum of Rs.50,000/- as advance at the time of the agreement and subsequently paid a sum of Rs.75,000/- on 15.9.2004. Thus the plaintiff paid a sum of Rs.1,25,000/- out of the total sale consideration of Rs.2,60,000/- and the balance amount that was payable was a sum of Rs.1,35,000/-. As per the agreement, the balance sale consideration must be paid and the Sale Deed must be executed on or before the end of Tamil Thai 2005 which in terms of the English Calendar falls on 12.02.2005.

4. The further case of the plaintiff is that he was always ready and willing to perform his part of the contract and on several occasions, the balance amount was tendered and defendant was requested to execute the Sale Deed. However, the defendant was evading the execution of the Sale Deed. Hence, there was exchange of notices between the parties. Ultimately, the specific performance suit came to be filed against the defendant.

5. The defendant filed a written statement. Almost all the facts were admitted and the only area of controversy was with regard to the properties getting partitioned before the actual Sale Deed is executed in favour of the plaintiff. The defendant also questioned the readiness and willingness on the part of the plaintiff to perform his part of the contract. The defendant also made an averment to the effect that a suit for partition has already been filed in O.S. No. 197 of 2005 and only after the final decree is passed in this suit, the defendant will be able to execute a Sale Deed in terms of the agreement, in favour of the plaintiff.

6. The Trial Court on appreciation of oral and documentary evidence and after considering the facts and circumstances of the case, decreed the suit in favour of the plaintiff and directed the defendant to register the Sale Deed in favour of the plaintiff after receiving the balance sale consideration. A further direction was issued to the plaintiff to deposit the remaining sale consideration of Rs.1,35,000/- within two weeks.

7. Aggrieved by the Judgment and Decree of the Trial Court, the defendant filed an appeal in A.S. No. 113 of 2012. The Appellate Court on re-appreciation of the oral and documentary evidence and after considering the findings of the Trial Court found that the plaintiff was not entitled for the decree of specific performance and accordingly granted the alternate relief of refund of the advance amount with interest. Aggrieved by the same, the plaintiff has filed this Second Appeal.

8. This Court heard Mr. N. Manokaran, learned counsel for the appellant, Mr. V.S. Kesavan, learned counsel for R1 and Mr. B. Singaravelu, learned counsel for R2. This Court also carefully went through the materials available on record and the findings of both the Courts below.

9. This Court framed the following substantial questions of law :

(a) Whether the first appellate court was right in relying upon Section 28(1) of the Specific Relief Act,