The court affirmed that a plaintiff seeking specific performance must prove a valid agreement and readiness to perform, which was not established in this case.

JUDGMENT :

S.S.SUNDAR, J.

Prayer : Original Side Appeal filed under Clause 15 of Letters Patent read with Order 36 Rule 1 of High Court Original Side Rules against the judgment and decree passed in CS.No.222/2007 dated 18.11.2019.

Prayer : Original Side Appeal filed under Clause 15 of Letters Patent read with Order 36 Rule 1 of High Court Original Side Rules against the judgment and decree passed in CS.No.121/2009 dated 18.11.2019.

1. The appeal in OSA.No.166/2021 is against the judgment and decree dated 18.11.2019 in CS.No.222/2007 filed under the Original Side jurisdiction of this Court by the respondents for partition and separate possession among other reliefs as against the appellant.

2. The appeal in OSA.No.167/2021 is against the judgment and decree dated 18.11.2019 in CS.No.121/2009 filed by the appellants for specific performance of an Agreement of Sale by directing defendants 1 to 6 to execute the Sale Deed in respect of 1/3rd of undivided share of the suit property and for granting a decree for a sum of Rs.1,08,00,000/- as damages for the loss of opportunity due to the non performance of the Agreement by the defendants 1 to 6.

3. The case of the respondents in CS.No.222/2007 is that the suit property measuring an extent of 15 grounds 811 sq.ft., bearing Door No.37/1, West Mada Church Road, Royapuram comprised in RS.No.97/4, 4th Tondiarpet Taluk, Chennai District, originally belonged to a Firm M/s.Goolamally & Co., consisting of one Akbarally Esufally Visnagarwala and three others as partners. It is stated in the plaint that by subsequent arrangement each partner was given 1/4th share. It is stated further that in an oral partition among the legal heirs of all the four persons on 01.03.1972, which was subsequently recorded on 16.03.1972, the suit property was allotted to Abbasbahi Mulla Akbarali Deesawala, Siraj Bhai Mulla Akbarali Deesawala and Husasiny Bhai Mulla Akbarali Deesawala.

4. Respondents 1 to 6 are the legal heirs of Akbarli Deesawala who died on 01.08.1989. In the year 2000, respondents 1 to 6 and other sharers who are entitled to 2/3rd share in the suit property, entered into a Memorandum of Understanding with the appellant for joint development. It is admitted that the Joint Venture Agreement for development and construction of a superstructure of built up area of 30,000 sq.ft. did not go through.

5. It is also admitted that without the consent of respondents 1 to 6, the co-sharers of 2/3rd share who are Siraj Bhai Mulla Akbarali Deesawala and Husasiny Bhai Mulla Akbarali Deesawala, sold their 2/3rd share in the scheduled property to the appellant in OSA.No.166/2021 by two Sale Deeds dated 22.07.2005 bearing Doc.Nos.2293 of 2005 and 2294 of 2005 for a total consideration of Rs.92 lakhs. Therefore, in the plaint in CS.No.222/2007, the plaintiffs/respondents 1 to 6 contended that they have a right of pre-emption to purchase the shares of other sharers and the respondents are willing to purchase the 2/3rd share of other two sharers. Therefore, the plaintiffs filed the suit in CS.No.222/2007 for partition and separate possession of their 1/3rd share in the suit property by metes and bounds and for a direction to the appellant/defendant to sell her 2/3rd share purchased by her under the two Sales Deeds. The plaintiffs have also prayed for permanent injunction restraining the defendant from in any manner interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs by transferring 2/3rd share of suit schedule property to anyone. Later, the respondents in OSA.No.166/2021 gave up their prayer based on their alleged right of pre-emption.

6. The appellants in OSA.No.167/2021 as plaintiffs, filed the suit in CS.No.121/2009 for specific performance by directing the respondents to execute the Sale Deed in respect of 1/3rd of undivided share of suit property in favour of the appellants and to grant a decree of a recovery of a sum of Rs.1,08,00,000/- as damages for the loss of opportunity due t