IMPORTANT POINT
A party's demand for the return of an advance payment and compensation can be interpreted as an abandonment of the right to seek specific performance of a contract, negating the requirement for continuous readiness and willingness to perform.

JUDGMENT :

THE HONOURABLE MR. JUSTICE S.SOUNTHAR

Prayer:- Appeal Suit is filed under Section 96 of Civil Procedure Code, praying to set aside the judgement and decree dated 22.11.2016 in O.S.No.21 of 2016 on the file of the IV Additional District Court, Coimbatore.

The unsuccessful defendants 1 and 2 are the appellants. The respondents 1 to 4 herein and one V.M.Abdul Wahab/plaintiffs filed a suit for specific performance and the same was decreed. Aggrieved by the same, the present appeal has been filed by the defendants 1 and 2.

2. For the sake of convenience, the parties are referred to as per the ranking in the suit.

Plaint Averments:-

3. The defendants 1 and 2 are the absolute owners of the suit property, which is 1.58 acres of vacant land. The plaintiffs entered into a registered Sale Agreement with defendants 1 and 2 and husband of 1st defendant and father of 2nd defendant-Muthu on 08.04.2005 agreeing to purchase the suit property for a total sale consideration of Rs.11,50,000/-. On the date of agreement, an advance amount of Rs.6,00,000/- was paid to the defendants 1 and 2. The time fixed for completion of sale transaction was six months. The plaintiffs have been always ready and willing to perform their part of the contract. Whileso, 3rd defendant (11th respondent herein) sent a legal notice on 21.06.2005 claiming that he was agreement holder in respect of the very same property and he filed a suit for specific performance against the defendants 1 and 2 in O.S.No.142 of 2001 and the same was dismissed. He further claimed that he preferred an appeal in A.S.No.1016 of 2004 on the file of this Court and obtained a status quo order on 14.10.2004 in C.M.P.No.16726 of 2004. Thus, he claimed that present agreement entered into by the plaintiffs was hit by doctrine of lis pendens. The plaintiffs further claimed that earlier agreement with 3rd defendant was suppressed by defendants 1 and 2 and immediately after receipt of notice from the 3rd defendant, plaintiffs sent a fitting reply notice dated 13.07.2005 to the 3rd defendant. The plaintiffs also sent a separate notice dated 13.07.2005 to defendants 1 and 2 for which they sent a cryptic reply stating that detailed reply will be sent after perusal of records from their counsel. Thereafter, the plaintiffs sent a telegram to defendants 1 and 2 on 04.10.2005 informing them that time stipulated in the Suit Sale Agreement expires on 08.10.2005 and they were ready and willing to perform their part of the contract by paying balance sale consideration and enforce the Suit Sale Agreement subject to the outcome of proceedings before the High Court. The defendants 1 and 2 failed to respond to the said telegram. Thereafter, the plaintiffs sent a notice dated 04.10.2005 reiterating their readiness and willingness to perform their part of the contract as mentioned in the telegram. The defendants 1 and 2 failed to give any reply for the said notice. In these circumstances, the plaintiffs were constrained to file a suit for specific performance of agreement with alternative prayer for return of advance amount.

Averments found in the Written Statement of the Defendants 1 and 2:-

4. The defendants 1 and 2 admitted the execution of Suit Sale Agreement. They claimed that Suit Sale Agreement was entered into by the plaintiffs with full knowledge of pending litigation with 3rd defendant. Therefore, they denied the allegation in the plaint as if, they suppressed the earlier agreement with the 3rd defendant. It was specifically averred by the defendants 1 and 2 that plaintiffs themselves withdrew their demand for specific performance in their notice dated 13.07.2005 and demanded only return of advance amount of Rs.6,00,000/-. Therefore, the plaintiffs are estopped from seeking specific performance of the agreement. They also claimed that in view of the breach of contract committed by the plaintiffs, the defendants 1 and 2 are not liable to repay the advance amount. It was also claimed by the defendants 1 and