The court affirmed that the defendant must refund the advance sale consideration due to lack of evidence supporting his claims of loss, and upheld the permanent injunction against alienation of the property.

JUDGMENT :

Aggrieved over the judgment and decree dated 31.08.2018 passed in O.S.No.4071 of 2012 on the file of the II Additional City Civil Court, Chennai the defendant has preferred the first appeal.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

3. The plaintiffs filed the suit for realization of advance sale consideration and for permanent injunction restraining the defendant from alienating the suit property till the payment of advance sale consideration with interest and for cost.

4. The respondents/plaintiffs case is as follows:

The defendant is the owner of the plaint schedule property. He entered into an agreement for sale dated 15.04.2011 with the first plaintiff and the sale consideration was fixed at Rs.1,14,00,000/- and a memorandum of undertaking was also executed between the 2nd plaintiff and the defendant. The plaintiffs have also paid a total sum of Rs.12,40,000/- as advance sale consideration to the defendant by way of two cheques dated 15.03.2011 for Rs.2,40,000/-drawn on Axis Bank and another cheque dated 19.04.2011 for Rs.10,00,000/- drawn on ICICI Bank. It is also agreed between the parties that on production of original title deeds by the defendant, the plaintiffs had to pay the balance sale consideration within one month. The time for performance of contract is fixed as three months. It was also agreed that if due to default and negligence on the part of the purchaser, in spite of readiness and willingness of the vendor, the advance amount should be refunded by deducting 10% and if the vendor failed to perform his part of contract, the advance sale consideration is refundable with interest at the rate of 24% p.a.

5. On 31.01.2012, when the plaintiffs visited the plaint schedule property, some other proposed buyers also inspected the property and on enquiry, the plaintiffs came to know that there were negotiations by the defendant to sell the property. If the defendant succeeded in his attempt, the plaintiffs will not be able to recover the advance sale consideration. Apart from that, the plaintiff also came to know that the defendant had mortgaged the plaint schedule property with HDFC Bank and there is no assurance on the part of the defendant to discharge the loan. Hence, the plaintiffs sent legal notice dated 30.12.2011 to repay the entire advance sale consideration with 24% interest. But, the defendant has not come forward to return the advance sale consideration instead he sent a reply notice dated 05.01.2012 with false allegations. Hence, the suit.

6. The contentions in the written statement filed by defendant in brief are as follows:-

Except the facts, which are admitted herein, all other allegations in the plaint are denied. The execution of the agreement for sale, the Memorandum of Undertaking of the sale in respect of plaint schedule property for a total sale consideration of Rs.1,14,00,000/- and the receipt of total advance sale consideration of Rs.12,40,000/- are admitted by the defendant. The time for performing the agreement for sale is fixed at 3 months. The plaintiffs suffered with some financial problems and as they were unable to mobilise the fund within the time frame, they requested time to pay the balance sale consideration. At this juncture, the defendant informed the plaintiffs that he has vacated his tenant, who was paying rent of Rs.1,25,000/- per month in order to hand over vacant possession of the plaint schedule property at the time of execution of sale deed. The defendant also sustained loss as he had to continue in paying the EMI to his banker and the plaintiffs promised to compensate the loss suffered by the defendant at the time of paying the balance sale consideration. The defendant also instructed his bankers to hand over the original title deed of the plaint schedule property to the plaintiffs after execution of sale deed and the receipt of the entire sale consideration. Even at the time of executing the agreement of sale,