Court can enforce a money decree based on the defendant's admission of liability for the advance payment, despite no specific claim for it being made.

JUDGMENT :

P. Dhanabal, J.

This Second Appeal has been preferred as against the Decree and Judgment passed by the First Additional Subordinate Judge, Cuddalore in A.S.No.36 of 2014 dated 06.01.2015.

2. For the sake of convenience and brevity, the parties herein are referred as plaintiff and defendant, as referred before the trial court.

3. The appellant/plaintiff herein has filed the suit before the trial court for the relief of mandatory injunction directing the defendant to abide by the terms and conditions of the agreement dated 05.03.2007 and permanent injunction from leasing out the property to any body else than the plaintiff along with suits and for other reliefs. The said suit was decreed by the trial Court, aggrieved by the said Decree and Judgment, the defendant has preferred the Appeal Suit in A.S.No.36 of 2014 on the file of the First Additional Subordinate Court, Cuddalore, and the First Appellate Court had set aside the decree and Judgment passed by the trial Court by allowing the appeal. Aggrieved by the said judgment and decree, the plaintiff has preferred the Second appeal.

4. The brief averment of the plaint are as follows:-

4.1. The suit property belongs to the defendant and the same is a vacant site, in which, the defendant has constructed a terraced shop. The plaintiff and defendant entered into an agreement dated 05.03.2007 under which, the defendant agreed to construct a shop measuring 33X55 feet, in total, to an extent of 1815 sq. ft., north facing shop and to deliver the possession of the same to the plaintiff for running textile shop and also defendant received a sum of Rs.10 Lakhs from the plaintiff as advance. The defendant agreed to complete the construction within four months from the date of agreement and after receipt of the advance amount from the plaintiff, the defendant was not interested in speedy construction of the shop and delivering the possession of the same to the plaintiff. The four months period stipulated in the agreement was expired on 05.07.2007 and the plaintiff has invested huge money and has been expecting the defendant to abide by the terms of the contract and handover the possession, but the defendant failed to construct building and handover the possession and therefore, the plaintiff issued notice dated 26.07.2007 calling upon the defendant to complete the building and to comply with the terms of the agreement. After receipt of the notice, the defendant has not issued any reply and now the plaintiff learns that the defendant is about to lease out the property to some other persons.Therefore, the plaintiff has filed the suit

5. The brief averments of the written statement filed by the defendant are as follows:-

5.1. The suit is false and liable to be dismissed. The plaintiff has not come to this Court with clean hands. It is true that the property belongs to the defendant and he entered into an agreement with the plaintiff dated 05.03.2007. The defendant has started construction of the property in the year 2007 and the plaintiff approached the defendant and asked him to allot a shop on monthly rental basis so as to enable him to run the textile shop. The defendant informed the plaintiff that it will take 8 to 10 months time to complete the construction. The plaintiff also agreed for the same and paid the advance amount of Rs.10 Lakhs and requested the defendant to complete the construction as early as possible.

5.2. From t