JUDGMENT

This second appeal arises against the judgment and decree of the court of Principal District at Villupuram in A.S.No.4 of 2011 dated 28.08.2012 in reversing the judgment and decree of the learned Subordinate Judge, Kallakurichi in O.S.No.193 of 2002 dated 10.06.2010.

2. O.S.No.193 of 2002 is a suit for specific performance of agreement of sale dated 09.01.2002.

3. For the sake of convenience, the parties will be referred to as per their ranks in the suit.

4. The suit property belongs to the defendants. The first defendant is the father and the second and third defendants are the sons of the first defendant.

5. The case of the plaintiff is that on 09.01.2002, a registered agreement was entered into between the parties for sale of the property for a sale consideration of Rs.2,50,000/-. The plaintiff had paid an advance of Rs.2,00,000/- and for the remaining amount of Rs.50,000/-, six months time had been granted. It was one of the conditions of the agreement that within a period of six months, the defendants will pay the Sankarapuram House Building Cooperative Society, the outstanding amount of loan which stood against the property. A further clause was that in case, the defendants do not pay the amount, the plaintiff will step in on their behalf and pay the amount. It was also agreed that in case, the amount payable to the society exceeds Rs.50,000/-, then the plaintiff would be entitled to recover the balance from the defendants. In case, the amount payable to the society was less than Rs.50,000/-, then the plaintiff would have to thereafter go for registration.

6. The suit was filed on 17.07.2002. The plaintiff obtained an exparte decree on 29.09.2002 and one month time was granted to the plaintiff to deposit the amount. Even then the amounts were not deposited. Thereafter, an application was filed seeking for extension of time to deposit the amount and on 06.10.2003 extension of time was granted by 15 days and only thereafter, the plaintiff deposited the balance of Rs.50,000/- on 17.10.2003.

7. The defendants had taken a stand that the entire agreement was only in the form of security for a loan transaction. They denied that there was an agreement of sale. It is pertinent to point out that after the exparte decree, an application was taken out to set aside the exparte decree and it was followed up with an additional written statement. In the additional written statement, it was specifically pleaded that the plaintiff was not ready and willing and therefore, not entitled to the relief of Specific Performance.

8. The learned trial judge on these pleadings, framed the following issues:

“1. Whether the suit agreement is true, valid and enforceable?

2. Whether the readiness and willingness alleged on the part of the plaintiff is true?

3. Whether the plaintiff has forfeited his right to claim specific performance?

4. To what relief, the plaintiff is entitled?”

9. The plaintiff entered the witness box and filed his proof affidavit.

However, because of his vocation abroad, his evidence was given up and it was eschewed. He examined his close relative viz., Ayoob khan as PW2. On the side of the plaintiff, Ex.A1 and EX.A2 were marked. On the side of the defendants, three witnesses were examined, DW1 being Rasheed Ali, the first defendant, one Selvaraj was examined as DW2 and the third defendant/Saleem was examined as DW3. In order to prove that it is only a loan transaction and the value of the property was very high on that date, the guideline value of the property was marked as Ex.B1 and the connected record of the Sub Registrar was marked as Ex.B3.

10. The learned Trial Judge held that under Sections 91 and 92 of the Indian Evidence Act, the defendants cannot let in any evidence contrary to the agreement and therefore, rejected their stand that it is only a loan transaction. He further held that the primary duty was caused on the defendants to discharge their dues to the House Building society and since the defendants had not discharge