Specific performance denied for lack of continuous readiness proof and evidence of agreement as loan security.

JUDGMENT

This Second Appeal is filed to set aside the judgment and decree dated

20.06.2022 made in A.S.No.65 of 2019 on the file of the Principal District Judge, Tiruppur, reversing the judgment and decree dated 08.02.2019 made in O.S.No.421 of 2016 on the file of Subordinate Judge, Avinashi.

2. Heard the learned counsels for both sides and also perused the materials available on record.

3. The unsuccessful plaintiffs 3 & 4 are the appellants. The appellants predecessor Subbathal filed a suit for specific performance of the agreement dated 17.10.2002. Pending suit, Subbathal died and her legal heirs / appellants were brought on record. The suit was decreed by the Trial Court and on First Appeal filed by the respondent / defendant, the First Appellate Court reversed the findings of the Trial Court and dismissed the suit in so far as the primary relief of specific performance is concerned. The First Appellate Court granted an alternate relief of return of the advance amount to the plaintiffs 3 & 4.

Aggrieved over the same, the plaintiffs 3 & 4 are before this Court.

4. According to the plaintiffs, there was a registered sale agreement between the deceased first plaintiff and the respondent on 17.10.2002. As per the terms of agreement, the deceased first plaintiff agreed to purchase the agreement mentioned property for a sale consideration of Rs.4,00,000/-. An advance amount of Rs.2,00,000/- was paid on the date of agreement. It was also agreed that the balance amount would be paid and the sale transaction would be completed within a period of three years. It was further pleaded that though the plaintiffs were ready and willing to perform their part of contract to complete the sale transaction within the stipulated time, the defendant evaded the same. Therefore, the plaintiffs issued a pre-suit notice on 03.10.2005, calling upon the defendant to receive the balance sale consideration and complete the sale transaction. The defendant sent a reply notice with false allegations. Therefore, the plaintiffs were constrained to file a suit for specific performance with an alternate relief of return of the advance amount.

5. The respondent / defendant filed a written statement and resisted the suit by denying the execution of agreement of sale. According to the defendant, she borrowed a sum of Rs.2,00,000/- from one Kesavamurthy, son of the first plaintiff, on 06.04.2002, agreeing to repay the said amount with interest at the rate of 24% per annum. At that point of time, the first plaintiff and the above said Kesavamurthy insisted the defendant to execute a sale agreement. Hence, the defendant executed a sale agreement in favour of Kesavamurthy on 06.04.2002, as if she agreed to sell the suit property for a sale consideration of Rs.3,00,000/-. In the said agreement, she also acknowledged the receipt of Rs.50,000/- as advance. The time fixed for performance of the sale was three years. It was further stated by the defendant that she has been regularly paying the interest to Kesavamurthy, as agreed earlier. After some time on 14.10.2002, the above said Kesavamurthy insisted the defendant to execute a registered agreement in the name of his mother, the deceased first plaintiff Subbathal. Even though the defendant was not willing to sell the property, as instructed by Kesavamurthy, she executed a suit sale agreement on 17.10.2002, without intention to sell the property. Thus, according to the defendant, the suit sale agreement was executed only as a security for the said loan transaction. On these pleadings, the defendant sought for dismissal of the suit.

6. Before the Trial Court, the third plaintiff was examined as P.W.1. One of the attestors of the suit sale agreement was exami