A sale agreement must be duly stamped and registered if it involves possession transfer; time is of the essence unless explicitly stated otherwise.

JUDGMENT :

R.SAKTHIVEL, J.

PRAYER: First Appeal filed under Section 96 read with Order XLI Rule 1 of Code of Civil Procedure, 1908, praying to set aside the judgment and decree dated 18.01.2017 passed in O.S.No.190 of 2011 by the learned III Additional District Judge, Salem.

The appellants herein are the plaintiffs in O.S.No.190 of 2011 on the file of 'III Additional District Judge, Salem' (henceforth 'Trial Court' for the sake of brevity).

2. For the sake of convenience, henceforth, the parties will be referred to as per their array in the suit i.e., the appellants herein and the respondents herein will be referred to as plaintiffs and defendants respectively.

3. Feeling aggrieved with the judgment and decree dated January 18, 2017, passed by the Trial Court in O.S.No.190 of 2011, the plaintiffs have preferred this Appeal under Section 96 read with Order XLI Rule 1 of ‘Code of Civil Procedure, 1908’ (henceforth ‘CPC’), praying to set aside the aforementioned judgment and decree.

Plaintiffs’ case

4.The case of the plaintiffs is that, the 1st defendant is the father of the 2nd and 3rd defendants. Defendants acquired the Suit Propriety measuring an extent of 46 Cents under a registered Partition Deed dated June 13, 1985.

4.1.On April 24, 2008, the defendants entered into an agreement of sale with the plaintiffs to sell the Suit Property. As per the agreement, the sale price was fixed at Rs.230/- per Sq.ft., which totally comes to the tune of Rs.46,12,880/- (Rupees Forty Six Lakh Twelve Thousand Eight Hundred and Eighty only), and the sale shall be completed on or before September 30, 2008. While executing the sale agreement on April 24, 2008, the plaintiffs paid a sum of Rs.2,00,000/- (Rupees Two Lakh only) as advance and subsequently on May 28, 2008, another sum of Rs.13,00,000/- (Rupees Thirteen Lakh only) was paid as advance. Subsequently, on October 7, 2008, a sum of Rs.1,00,000/- (Rupees One Lakh only) was paid. Thus, in total, a sum of Rs.16,00,000/- (Rupees Sixteen Lakh Only) had been paid to the defendants by the plaintiffs towards purchase of the Suit Property. The defendants duly acknowledged the receipt of the said total sum in the presence of one Thiru.V.Pal Arumugam and Thiru.M.Mohan. Further, the defendants had received the sale consideration even after the deadline for performance of the contract i.e., September 30, 2008, which reflects unequivocally that time is not the essence of the contract.

4.2.After receipt of the huge amount as advance, the defendants handed over possession of the property to the plaintiffs for its development. The plaintiffs spent nearly Rs.10,00,000/- (Rupees Ten Lakh only) towards development of the Suit Property. The plaintiffs also purchased right on a pathway as additional approach road to the Suit Property from third party by paying consideration. All these things were done with the knowledge of the defendants. Major part of the sale consideration has been paid to the vendors and possession has been delivered in part performance.

4.3. The plaintiffs are always ready and willing to perform their part of the agreement. The Sale Agreement dated April 24, 2008 requires that the vendors should satisfy the purchaser on title of vendors and clear encumbrances, if any. It is a condition precedent for payment of the balance sale consideration to the vendors. Contrary to the same, when the plaintiffs asked for production of the original Partition Deed and execution of the sale deed after receiving the balance sale consideration, the defendants did not come forward and began evading execution of the sale deed under one pretext or other.

4.4. Therefore, the plaintiffs issued a legal notice to the defendants on February 14, 2010 calling upon them to execute sale deed by enforcing the agreement of sale dated April 24, 2008 after showing the original Partition Deed dated June 13, 1985. On March 9, 2010, the defendants gave a reply stating that no such sale agreement was entered into with the plaintiffs, and t