JUDGMENT

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(Judgment of the Court was delivered by M.S.RAMESH, J.)

Challenging the judgment and decree, dated 06.09.2012 made in O.S.No.35 of 2011 on the file of the II Additional District Judge, Thoothukudi, the above appeal has been filed.

2. The appellant herein is the plaintiff in the suit in O.S.No.35 of 2011 on the file of the II Additional District Judge, Thoothukudi, wherein he had prayed for specific performance of the agreement of sale dated 12.07.2008. By a judgment and decree, dated 06.09.2012, passed in the said suit, the trial Court had dismissed the suit. Aggrieved against the said judgment and decree, the plaintiff has filed the present appeal.

3. For the sake of convenience, the parties in the appeal are referred to, as per their status in the suit as plaintiff and defendants. 4.1. As per the plaint averments, the suit property comprised in Re-survey No.3/1 at Sinthalakattai village measuring 5.24 Acres, belongs to the first defendant, who had agreed to sell the property to the plaintiff for a sale consideration of Rs.26,20,000/- and accordingly, the first defendant had received a sum of Rs.5,00,000/- on 25.05.2008, towards advance.

4.2. On 12.07.2008, an unregistered sale deed was executed between the first defendant and the plaintiff for sale of the suit property, with a clause that the transaction of sale shall be concluded within 45 days from the date of sale agreement. The first defendant had received a sum of Rs.3,00,000/- on the date of execution of the sale agreement.

4.3. The time for execution of the sale deed was not the essence of the contract. According to the plaintiff, he was always ready and willing to perform his part of the contract and that, the first defendant had evaded the execution of the Sale Deed.

4.4. On 06.10.2008, the first defendant had received a further advance amount of Rs.60,000/-, the receipt of which was endorsed in the sale agreement.

4.5. Since the first defendant had not come forward to execute the sale deed, he had sent a legal notice on 31.03.2011 calling upon her to execute the sale deed, to which the first defendant had given a reply dated 12.04.2011 stating that the first defendant had sold the suit property to the second defendant on 03.10.2010. According to the plaintiff, the sale deed executed in favour of the second defendant is not valid and not binding on the plaintiff since he was always ready to render the balance of the sale consideration to the first defendant. In this background, he has sought for the relief of specific performance of the sale agreement.

5. The first defendant in her written statement had stated that though a time limit of 45 days was stipulated in the sale agreement for execution of the sale deed, the plaintiff was not ready and willing to perform his part of the contract. According to her, time was the essence of the contract. The first defendant had also denied that the plaintiff had approached her seeking for execution of sale deed and that, there was no collusion between the first and second defendant. Since the plaintiff failed to perform his part of the contract, within the time stipulated in the sale agreement, she had sold the suit property to the second defendant for a valid sale consideration, to meet the marriage expenses of her daughter and hence, he is not entitled for the relief of specific performance.

6. On the above pleadings, the trial Court had framed the following issues:

“1.Whether the 1st defendant has entered into a sale agrement with the plaintiff on 12.07.08 agreeing to sell the schedule properties in favour of the plaintiff or not?

2.Whether the 1st defendant has received any advance towards sale agreement?

3.Whether the plaintiff was always ready and willing to perform his part of contract?

4.Whether the 2nd defendant is a bonafide purchaser or not?

5.Whether the plaintiff is entitled to the decree for specific performance as prayed for or not?

6.To what relief ?”

7. During the course of trial, the plaintiff examined