IMPORTANT POINT
A plaintiff seeking specific performance must demonstrate continuous readiness and willingness to perform the contract, and the withdrawal of a previous suit does not bar a subsequent suit if the earlier suit was not decided on merits.

JUDGMENT :

(C. Kumarappan, J.)

(Prayer : Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 23.01.2017 made in A.S.No.52 of 2015 on the file of the V Additional District Court, Madurai, reversing the judgment and decree, dated 15.04.2014 made in O.S.No.430 of 2008 on the file of the I Additional Subordinate Judge, Madurai.)

The appellant herein is the respondent/first defendant, the first respondent herein is the appellant/plaintiff and the second respondent herein is the second respondent/second defendant before the Court below.

2. For the sake of convenience, the parties are referred to as per their rank before the Court below.

3. The brief averments of the plaint are as follows:

The plaintiff submits that the first defendant has executed a general power of attorney in favour of the second defendant, vide document dated 14.03.2007 registered under Document No.114/2007, in respect of the suit property. The plaintiff has entered into a sale agreement with the second defendant, who is the power agent of the first defendant vide sale agreement dated 19.09.2007. The total sale consideration is Rs.4,90,000/-. Out of the total sale consideration, Rs.4,80,000/- has been paid as an advance and three month performance period has been fixed. In spite of repeated request, the second defendant had delayed the execution of the sale deed. Therefore, the plaintiff sent a letter to him on 15.02.2007, requesting him to receive the balance sale consideration of Rs.10,000/- and to execute the sale deed. However, the second defendant did not send any reply. Hence, the plaintiff has met the second defendant in person on 30.12.2007 and when enquired with him, he came to know that the first defendant has cancelled the power of attorney dated 14.03.2007, by way of cancellation deed, dated 03.12.2007. The said factum was intimated to the second defendant through a letter, dated 06.12.2007. The second defendant submitted to the plaintiff that, in view of the cancellation of the power deed, he was not in a position to execute the sale deed, and requested the plaintiff to proceed to enforce the agreement according to law. Hence, the plaintiff has come forward with the prayer seeking specific performance against the defendant.

4. Brief statement of the written statement filed by the first defendant is as follows:

The first defendant submits that the very general power of attorney deed dated 14.03.2007 is the outcome of coercion and undue influence through police. It is the further submission of the defendant that the above fact can be established by the report of the Inspector of Police, Melur Police Station, dated 28.01.2007 and a letter of the plaintiff to the Additional Superintendent of Police, dated 17.07.2007. According to the defendant, the general power of attorney deed is not a genuine one and the same was not executed by the first defendant voluntarily. The defendant further submits that, the plaintiff had filed a suit based upon the fraudulent promissory note, dated 28.07.2007 in O.S.No.177 of 2007. After the said suit was decreed, the plaintiff preferred an appeal before the High Court. Even the instant suit for specific performance, according to the defendant, is an abuse of process of law. The defendant disputed the sale agreement as a result of collusion between the plaintiff and the second defendant. The defendant also denies the receipt of the advance amount. It is the further submission of the defendant that the plaintiff has never shown his readiness and willingness to perform his part of the contract till the date of cancellation of power of attorney deed, on 03.02.2007. The defendant submits that the suit property is worth of Rs.17,00,000/-. However, to grab the property, the plaintiff and the second defendant entered into a fraudulent sale agreement. The defendant further submits that he has cancelled the power of attorney vide cancellation deed, dated 03.12.2007. According to t