The court reaffirmed that in specific performance cases, the burden of proof lies on the defendant to substantiate claims regarding the advance amount and contract genuineness, ultimately determining the plaintiffs were entitled to a refund.

JUDGMENT

N.SESHASAYEE, J.

The plaintiffs who have lost their suit for specific performance in O.S.No.13 of 2012 on the file of the I Additional District Court, Thoothukudi, has approached this Court with this appeal. For narrative convenience, the parties are referred to by their rank before the trial Court.

2. The plaintiffs have come forward with an uncomplicated straight forward case. Their pleadings are as below:

a) The suit property is a residential property comprised in T.Sy.Nos.1154/5 and 1155/8 in Block No.35 of Thoothukudi Corporation covering an extent of 2.056 cents with a residential house. This property belongs to the defendant.

b) On 29.09.2011, the defendant and the plaintiffs entered into Ext.A1 a sale agreement, in terms of which, the defendant had agreed to sell the suit property to the plaintiffs for a total consideration of Rs.28.75 lakhs. Out of the said sum, the plaintiffs had paid a sum of Rs.11,00,000/- as advance. The agreement also provided 15 days time for payment of the balance consideration.

c) While so, on 12.11.2011, the defendant had conveyed his inability to perform his part of contract vide Ex.A2 on certain untenable reasons. The plaintiffs responded to it with Ex.A3 notice, dated 22.11.2011, wherein they had required the defendant to perform his part of contract.

As the defendant did not offer to perform his part of contract, a suit came to be filed on the said facts. Narrating the above facts, the plaintiffs had pleaded that they are ready and willing to perform their part of contract.

3. Denying the allegations in the plaint, the defendant had filed his written statement wherein he alleges:

(i) The total sale consideration for the suit was fixed at Rs. 25,00,000/- and not Rs.28.75 lakhs. Contrary to the allegation in the plaint that the plaintiffs had paid Rs.11,00,000/- as advance, they have paid only Rs.5,00,000/- as advance.

(ii) The plaintiffs were defaulters in performing their part of contract within the time stipulated. As a result of which, the defendant had repaid the advance sum of Rs.5,00,000/- to the plaintiffs. In short, there is no relation between the sale agreement on which the plaintiffs have founded their cause of action, and the defendant. The plaintiffs tried to intimidate the defendant through their men and the defendant therefore, was constrained to institute O.S.No.40 of 2012 before the Principal District Munsif Court, Thoothukudi for a decree of prohibitory injunction to protect his peaceful possession of the property and the suit is pending.

4.1 On the above pleadings, the trial Court framed as many as five issues and all the issues relate to the plaintiffs’ line of the case and no issue was framed vis-a-vis the defendant’s line of defence.

4.2 The dispute went to trial and during trial, for the plaintiffs, the second plaintiff examined herself as P.W.1 and also examined one Vasanthara as P.W.2 to establish that the advance sale consideration of Rs.11,00,000/- was paid in the presence of P.W.2. The plaintiffs had also produced Exs.A1 to A4 of which Exts. A1 to A3 have already been introduced in evidence. Ex.A4 is a copy of the complaint which the first plaintiff had preferred before the police. For the defendant, he had examined himself as D.W.1 and had also examined one Sesuraj as D.W.2 for establishing that the plaintiffs had paid only Rs.5.0 lakhs as advance. He had also produced Ex.B1, a notary attested true copy of the agreement which the defendant has pleaded in his written statement (not a copy of Ext.A1 on which the suit is laid) and Ex.B2, advocate notice sent by the defendant's Advocate to the 1^st plaintiff – xerox copy.

4.3 On appreciation of evidence before her, the learned District Judge chose to dis