AS.No.42 of 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.06.2023

CORAM

THE HONOURABLE Mr.JUSTICE S.S.SUNDAR

and

THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN

AS. No.42 of 2013

and

MP.No.1 of 2013

A.Muthu Kumar

... Appellant/plaintiff

Versus

1.Mrs.Thayarammal

2.Mrs.K.Premavathi

3.Ms.Prathiba

4.Mr.P.Mohan

... Respondents/Defendants

PRAYER: First Appeal filed under Order 41 Rule 1 with Section 96 of C.P.C.,

praying to set aside the judgment and decree dated 28.06.2012 passed in

OS.No.627 of 2008 on the file of the Hon'ble Principal District Judge,

Coimbatore.

For appellant

:

Mr.M.V.Venkataseshan

Senior counsel

for Mr.M.Purushothaman

For respondents

:

R1 & R2 died

Mr.K.Myilsamy for R3

Mr.V.Anandha Moorthy for R4

*****

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AS.No.42 of 2013

J U D G M E N T

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

The plaintiff in the suit in OS.No.627 of 2008 on the file of the Principal

District Court, Coimbatore, is the appellant in the above appeal. The appellant

filed the suit for specific performance of an agreement of sale dated 23.09.2005

in respect of the suit property. The suit property is described as an extent of 50

cents out of an extent of 4.72.0 hecters in S.No.56/1 in Tiruppur Taluk,

Tiruppur District with reference to four boundaries. A reading of description of

property in the agreement would show that the suit sale agreement is in respect

of 50 cents out of a larger extent of property owned by the defendants.

2. The case of the appellant in the plaint is that the defendants, who are

the owners of the suit property entered into an agreement of sale in respect of

the suit property on 23.09.2005 at the rate of Rs.65,000/- per cent. Out of the

total sale consideration of Rs.32,50,000/- (Rupees Thirty two lakhs and fifty

thousand only), it is stated in the plaint that the plaintiff has paid an advance

amount of Rs.10,00,000/- (Rupees ten lakhs only) on the date of agreement and

that a further sum of Rs.3,00,000/- was paid on 27.12.2005 by way of Bankers

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AS.No.42 of 2013

Cheque drawn in favour of second defendant. It is admitted that the 1^st

defendant is the mother-in-law of 2^nd defendant, who is the mother of

defendants 3 and 4, who are minors on the date of alleged agreement. It is

stated in the plaint that the defendants have agreed to execute a sale deed in

favour of the plaintiff on or before 15.02.2006 after receiving the balance sale

consideration. Stating that the defendants had agreed to measure the land

before executing the sale deed and that the defendants however did not come

forward to measure the land, the plaintiff filed a suit immediately after issuing a

pre-suit notice on 08.05.2008. It is admitted that the reply notice has also been

sent on behalf of defendants on 14.05.2008 specifically denying the contents in

the suit notice.

3. From the plaint, the plaintiff has repeatedly mentioned that the

plaintiff could not pay the balance because the suit property was never

measured as agreed by defendants in the suit agreement. It is the case of the

plaintiff that the defendants had never approached the plaintiff to perform their

obligations subsequent to the agreement. Even though the suit was filed long

after the time specified in the Sale agreement, the plaintiff explained the delay

by stating that the plaintiff wanted to settle the matter amicably as defendants 1

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AS.No.42 of 2013

and 2 are women. In the reply notice as well as in the written statement filed by

the 1^st defendant, which was adopted by the 2^nd defendant, the specific stand

taken by the defendants was that time was the essence of the contract and that

the plaintiff, who had agreed to perform his part of the contract by paying the

balance of sale consideration on or before 15.02.2006, did not come fo