Sale agreement valid with consideration via admission; readiness/willingness shown by possession, payment, deposit despite attachment.

JUDGMENT :

N.ANAND VENKATESH, J. 

The defendant is the appellant in the second appeal.

2. The second appeal has been filed against the judgment and decree passed by the learned Principal District Judge, Madurai in AS NO.29/2005 dated 10.04.2006 reversing the judgment and decree dated 02.11.2004 made in OS No.298/1996 on the file of the I Additional Sub Court, Madurai.

3. The respondent/plaintiff filed the suit on the ground that he entered into an agreement of sale dated 16.02.1993 with the appellant wherein the appellant agreed to sell the suit property for a total consideration of Rs.2 lakhs and that on the date of the agreement, a sum of Rs.1 lakh was paid as advance in cash and a further sum of Rs.90,000/- was also paid on various dates. Thus, only a balance sum of Rs.10,000/- was payable and the respondent was requesting the appellant to receive the balance consideration and to execute the sale deed and since the appellant was not coming forward to execute the sale deed, the respondent filed the suit seeking for the relief of specific performance.

4. The appellant as the defendant filed a written statement stating that the respondent did not pay the advance amount of Rs.1 lakh/- and what was paid was only a sum of Rs.90,000/- towards advance. Apart from that there was an order of attachment against the property under mortgage deed and therefore, the property could not have been sold in favour of the respondent till the attachment was raised and the respondent was expected to discharge the debt and in the absence of the same, the respondent is not entitled for the relief of specific performance. Accordingly, the appellant sought for dismissal of the suit.

5. The trial Court, on considering the facts and circumstances of the case and on appreciation of evidence, came to a conclusion that no sale consideration passed on and therefore, the agreement itself is inoperative and that the agreement was of the year 1993, whereas, the suit was filed only in the year 1996 and there was no readiness and willingness on the part of the respondent and hence, the suit was dismissed by judgment and decree dated 02.11.2004. Aggrieved by the same, the respondent/plaintiff filed the appeal before the Principal District Court, Madurai in AS No.29/2005 and the appellate Court reversed the judgment and decree of the trial Court by judgment and decree dated 10.04.2006. Aggrieved by the same, the present second appeal has been filed before this court.

6. When the second appeal was admitted, this Court framed the following substantial questions of law :

“(1) Whether the decree and judgment of the lower appellate Court is liable to be set aside as Ex.A1, the alleged sale agreement is void, in the light of the findings of the trial Court that Ex.A1 is without passing of consideration? and

(2) Whether the decree and judgment of the lower appellate Court is liable to be set aside in the absence of conveying the readiness and willingness on the part of the plaintiff to the defendant to pay the balance amount as mentioned in Ex.A1 and get the sale deed executed and registered within the stipulated time mentioned in Ex.A1?”

7. This Court considered the submissions made on either side and the materials available on record and also carefully went through the judgment passed by both the courts below.

8. The first question of law pertains to the passing of the consideration. Ex.A1, which is the sale agreement, assumes lot of significance. A careful reading of the agreement shows that as on the date of entering into an agreement, a sum of Rs.1 lakh/- was paid as advance in cash. The trial Court disregarded this specific clause in the agreement based on the evidence of PW2, who stated that the sum of Rs.1 lakh/- was not paid to the defendant. Therefore, the trial Court held that the agreement is not supported by consideration.

9. The appellate Court, while dealing with this issue, apart from taking note of the specific clause in the agreement of sale, also took into consid