JUDGMENT

This Appeal suit is filed against the judgment and decree dated

27.07.2009 passed in OS.No.65 of 2008 on the file of the Additional District Judge(Fast Track Court-I), Salem, thereby dismissed the suit for specific performance and also refund of excess amount.

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

3. The appellant is the second plaintiff, respondents 1 to 8 are the defendants and the ninth respondent is the first plaintiff in the above suit. The case of the plaintiffs is that the suit property owned by defendants 1 to 5. They gave power of attorney in favour of defendants 6 and 7 dated 04.07.2007 to deal with the suit property. On the strength of the power of attorney, defendants 6 & 7 entered into an agreement for sale with the plaintiffs on 23.07.2007 to purchase the suit property admeasuring 39 cents (17004 sq.ft.) for consideration of Rs.19/- per sq.ft. There is no road approach for the suit property. On the date of the agreement for sale, defendants 6 and 7 had received a sum of Rs.1,10,000/- as advance and also part of sale consideration. As per the terms of the agreement, both the parties agreed to complete their part of performance within a period of three months from the date of the agreement for sale. The total sale consideration was fixed at Rs.3,23,076/-. It was registered vide document No.4840 of 2007.

3.1 Since there is no approach road for the suit property, defendants 6 and 7 agreed to purchase a bit of land from the eighth defendant and convey the same in favour of the plaintiffs. In the event of purchasing the said bit of land for road purposes, the plaintiffs and defendants 6 and 7 have agreed to refix the sale price at Rs.151/- per sq.ft. for the suit property. In order to purchase the bit of land from the eighth defendant, another agreement was entered between them on 25.07.2007 and thereby fixed rate of Rs.10,71,000/- for the road portion to an extent of 2520 sq.ft. to be purchased from the eighth defendant. As per the said agreement, the plaintiffs have paid further sum of Rs.6,00,000/- on

29.08.2007 to defendants 6 and 7 and also paid another sum of Rs.6,00,000/- thereafter. They were being power of attorney of defendants 1 to 5, they had received the entire amount of Rs.13,10,000/-. However, defendants 6 and 7 could not able to purchase the road portion of the property from the eighth defendant. They caused notice on 05.11.2007 thereby called upon the plaintiffs to perform their part of contract. However, on enquiry, the plaintiffs came to understand that the eighth defendant did not agree to sell his property in favour of defendants 6 and 7. Therefore, the plaintiffs caused suitable reply notice on 12.11.2007. Defendants 6 and 7 also caused rejoinder. Thereafter, the plaintiffs came to understand that the total sale consideration fixed at Rs.10,71,000/- for the road portion of the land was not paid by defendants 6 and 7 in favour of the eighth defendant. They had paid only a sum of Rs.4,00,000/-. Therefore, the plaintiffs filed suit for specific performance as per the agreement dated 23.07.2007 and also refund of the excess amount paid in favour of defendants 6 and 7.

4. Resisting the same, the seventh defendant filed written statement stating that only because of the failure on the part of the plaintiffs, they could not able to purchase the road portion of the land from the eighth defendant. Further, they were always ready and willing to perform their part of contract and the plaintiffs only failed to perform their part of contract. The plaintiffs had filed suit only on the strength of the agreement dated 23.07.2007. Under the said agreement, the plaintiffs paid only a sum of Rs.1,10,000/- as advance. Therefore, the plaintiffs are not entitled for relief of specific performance and also for refund of excess amount.

5. On hearing the rival pleadings, the learned trial Judge framed the following issues for determination of the suit :-

1.