J U D G M E N T

The Appeal is preferred by the defendants against the judgment and decree passed by the Trial Court in the suit for specific performance, wherein the alternate relief for refund of advance money granted.

2. On 06.02.2003 one Mr.Vijayaragavan/1st defendant along with his father Venkatraman entered into an agreement of sale with one N.M.Thangavel in respect of a commercial building for a sum of Rs.18,00,000/-. A sum of Rs.3,00,000/- was paid in advance on the date of agreement and further sum of Rs.7,00,000/- was paid on 05.03.2003. Before completion of the sale transaction, the said Venkataraman died leaving behind his wife, son and daughter. 3. The agreement holder during the lifetime of Venkataraman requested the vendor to execute the sale deed receiving the balance sale consideration, but they were postponing the same. After the demise of Venkataraman again he requested the defendants to execute the sale deed. No possible response was forthcoming from them so, he sent a registered notice dated 26.07.2006 calling upon the defendants 1 to 3 to execute the sale deed free of encumbrances was issued. Then, the plaintiff came to know that the defendants 1 to 3 had conveyed the suit property in favour of defendants 4 & 5. The said said deed is a shame and nominal document. The purchaser defendant No.4 & 5 were aware of the previous agreement in favour of the plaintiff. The plaintiff is ready and willing to pay the balance consideration and get the deed executed. Hence, he is entitled for the relief of specific performance or in alternate without prejudice to the main relief of specific performance, refund of advance money was prayed.

4. The 1st defendant filed written statement which was adopted by the

2nd defendant, wherein, they admit the ownership of the suit property and execution of sale agreement dated 06.02.2003 in favour of the plaintiff by the 1st defendant Vijayaragavan @ Ravi and his father Venkataraman. Time for completing the contract was fixed as 6 months and same is found in the recital of the agreement. The plaintiff was never willing and ready to pay the balance sale consideration and get the sale deed executed within the time given. Venkataraman died on 20.07.2006 neither before his lifetime nor after the lifetime, the plaintiff approached the defendants for the execution of the sale deed tendering the balance sale consideration. Therefore, the contention of the plaintiff that he was always ready and willing to perform his contract is false and contrary to his own conduct. The balance sale consideration as per terms of agreement ought to have been paid on or before 21.02.2003. After agreement, 1st defendant and his deceased father Venkataraman cleared all the tax dues and electricity charges and waiting for the plaintiff to pay sale consideration and get the sale deed executed in his favour. However, the plaintiff failed to show interest in getting the contract completed. After waiting for three years, the defendants 1 to 3 sold the property to defendants 4 & 5 after knowing the fact that the plaintiff is not in a position to complete the said sale. The alleged suit notice dated 26.07.2003 does not disclose whether the plaintiff was ready with money and willing to complete the contract. The suit for specific performance not filed within a period of three years, hence it has to be dismissed on the said ground.

5. In the additional written statement was filed by the defendants 1 &

2 and same was adopted by the 3rd defendant, wherein, it is stated that after the death of Venkataraman, they cannot be a personal decree against his legal representatives. The alleged legal notice dated 26.07.2003 to Venkataraman, who died on 20.07.2006 is non est in the eye of law. The plaintiff, who entered into a sale agreement with specific recital that he will complete the contract within the period of 6 months, failed to perform his part of contract. Therefore, the defendants, who had brought money for their constructio