The court ruled that statutory rights of a bona fide purchaser prevail over equitable rights of an agreement holder in cases of specific performance, particularly in the absence of evidence proving readiness and willingness to perform.

JUDGMENT :

P.DHANABAL, J.

This Second Appeal has been preferred against the judgment and decree passed by the Second Additional District Judge, Erode in A.S.No.68 of 2012, dated 21.08.2013.

2. Originally, the appellant herein filed the suit before the trial Court in O,S.No.214 of 2010 on the file of Subordinate Judge, Perundurai, for the relief of specific performance of the contract and the said suit was dismissed on 09.11.2011 by the trial Court. Aggrieved by the same, the plaintiff has preferred First Appeal in A.S.No.68 of 2012 before the Second Additional District Judge, Erode in A.S.No.68 of 2012 and the said First Appeal was also dismissed by confirming the judgment and decree passed by the trial Court. Aggrieved by the judgment and decree passed by the first appellate Court, the present Second Appeal is preferred by the plaintiff.

3. The parties are referred to herein as per their rank in the trial Court as plaintiff and defendant.

4. The case of the plaintiff is that the defendants 1 and 2 are the absolute owners of the suit property and the plaintiff and defendants 1 and 2 entered into a sale agreement, dated 30.11.2006 and the sale consideration was fixed at Rs.2,000/- per cent, i.e. Rs.1,87,000/-. On the same day of the agreement itself, the plaintiff paid Rs.30,000/- towards advance and part of sale consideration and time were fixed within next Vaigasi month of Tamil calendar, i.e. on or before 14.06.2007. In the first week of December 2006, the plaintiff approached the defendants 1 and 2 with the balance sale amount to get the sale deed executed, but the defendants 1 and 2 postponed the same and assured to execute the sale deed after two weeks. In the meantime, the plaintiff came to know that the property was sold to the third defendant through sale deed dated 14.12.2006 for total consideration of Rs.77,000/-. The sale deed between the defendants, is not valid and the plaintiff has right to enforce the sale agreement. The plaintiff was ready and willing to perform his part of the contract, but the defendants 1 and 2 failed to execute the sale deed. Thereafter, the plaintiff caused notice dated 23.12.2006 and the defendants 1 and 2 managed to return the notice and the third defendant received the notice and not sent any reply till filing of the suit. Therefore, the plaintiff has filed the present suit for specific performance of the contract.

5. The defendants 1 and 2 were set ex-parte before the trial Court.

6. The case of the third defendant is that the defendants 1 and 2 are brothers. The suit property originally belonged to the first defendant, his minor sons Lingeswaran and Kogue Aanand and the second defendant. While so, the first defendant, along with his minor son and the second defendant, sold the suit property to the third defendant on 14.12.2006 for a valuable consideration of Rs.7,000/- and executed a registered sale deed in favour of the third defendant and put him in possession on the date of sale itself. In fact, the first defendant, for himself and on behalf of the minor sons, and the second defendant, had entered into a written sale agreement on 20.06.2006 to sell the suit property to the third defendant for a total consideration of Rs.77,000/- and on the date of agreement itself, they have received Rs.20,000/- from the third defendants towards advance and part of the sale consideration and agreed to complete the sale within 6 months. Accordingly, the third defendant paid the balance amount and got the sale deed executed in his favour.

6.1. Now, the plaintiff has filed the present suit alleging that he entered into sale agreement and paid Rs.30,000/- towards advance and with false allegati