Sale agreement genuine but specific performance denied due to plaintiff's delay proving lack of readiness and willingness.

JUDGMENT :

S. SOUNTHAR, J.

The unsuccessful plaintiff is the appellant herein. He filed a suit for specific performance of agreement dated 18.04.2009. The suit was decreed by the trial Court. On appeal filed by the second defendant, the First Appellate Court set aside the decree for specific performance and modified the same by directing the defendants 3 and 4 to refund the advance amount of Rs.3,50,000/- to the plaintiff. Aggrieved by the denial of main relief of specific performance, the plaintiff has come before this Court.

2. According to the appellant / plaintiff, the suit property belong to first defendant. He entered into a sale agreement with the first defendant for purchase of the suit property on 18.04.2009 marked as Ex.A3. The agreed sale consideration was Rs.4,00,000/- and advance of Rs.3,50,000/- was paid on the date of sale agreement. It was further agreed that the balance amount had to be paid within a period of one month. It is further pleaded by the plaintiff that eventhough he was ready and willing to perform his part of the contract, the first defendant evaded execution of sale agreement. Hence, a pre suit notice was issued on 03.07.2009, calling upon the first defendant to execute the sale deed pursuant to the suit sale agreement. The first defendant who received the notice came up with a reply denying the agreement itself. The plaintiff also acquired knowledge that first defendant sold the property to second defendant on 25.06.2009. In these circumstances, the above said suit was filed seeking specific performance of the suit sale agreement.

3. The first defendant filed a written statement and denied the suit sale agreement. It was her case that she entered into a sale agreement with second defendant for selling the agreement mentioned property on 09.01.2009 for sale consideration of Rs.3,60,000/- after receiving advance amount of Rs.10,000/-. Subsequently, on 26.06.2009, the first defendant executed a sale deed in favour of second defendant after receiving the entire sale consideration and delivered possession of the subject property in favour of second defendant. While denying the execution of suit sale agreement in favour of plaintiff, the first defendant also pleaded that plaintiff was a financier and her husband borrowed a sum of Rs.2,00,000/- from the plaintiff and handed over original title documents, signed blank stamp papers and Canara bank cheque in favour of plaintiff as a security for proper repayment of the said borrowed amount. The present suit has been filed by the plaintiff fabricating the sale agreement. On these pleadings, she sought for dismissal of the suit.

4. The second defendant who is a subsequent purchaser filed a written statement denying the suit sale agreement. She also asserted that there was a previous agreement between her and first defendant on 09.01.2009 for purchase of subject property for a sale consideration of Rs.3,60,000/- and pursuant to the said sale agreement, a sale deed was executed by first defendant in favour of second defendant on 25.06.2009. The second defendant also raised plea of bonafide purchaser.

5. Before the trial Court, the plaintiff was examined as P.W.1. One of the attestor to suit sale agreement was examined as P.W.2. Scribe of the suit sale agreement was examined as P.W.3. On behalf of the plaintiff thirteen documents were marked as Ex.A1 to A13. The first defendant who filed a written statement subsequently died and her legal representatives were brought on record as defendants 3 and 4. However, they remained ex-parte. On behalf of the second defendant, she was examined as D.W.1 and three documents were marked as Ex.B1 to Ex.B3.

6. The trial Court on appreciation of evidence available on record came to the conclusion that suit sale agreement was a genuine document and second defendant was not bonafide purchaser and consequently, decreed the suit for specific performance. Aggrieved by the same, the second defendant preferred first Appeal in A.S.No.82 of 2