- (1.) THIS appeal has been filed by the first defendant against the decree and judgment in O. S. No. 292 of 1987 on the file of the Subordinate Judge, Cuddalore.
(2.) THE suit is for specific performance of contract entered into between the plaintiff and the defendants 1 and 2 in the suit on 09. 03. 1987. Defendants 1 and 2 have agreed to sell the plaint schedule property for Rs. 1,70,000/- and on the same day, the plaintiff has paid Rs. 1,00,000/ -. It was agreed upon between the parties that the plaintiff has to pay the balance of sale consideration of Rs. 70,000/- within nine months and to get the sale deed executed. There is also a clause incorporated in the sale agreement to the effect that in case, if the father of the first defendant, namely the second defendant, failed to join for registration of the sale deed, a proportionate deduction has to be made in respect of Survey No. 429 measuring 1acres 50 cents from the total sale consideration as agreed to between the parties under the sale agreement dated 09. 03. 1987 and the value of the land was fixed at Rs. 240/- per cent and the accessories were valued at Rs. 8000/ -. The plaintiff was ready with the balance of sale consideration in the second week of November, 1987 and wrote a letter to the first defendant informing him that he is ready to get the sale deed executed after paying the balance of sale consideration. But the first defendant purposely delayed the execution of the sale deed. The first defendant had borrowed a hand loan of Rs. 5000/- from the plaintiff and he had agreed to adjust the said amount in the sale consideration at the time of execution of the sale deed. As per the terms of the agreement of sale, the plaintiff issued notice dated 24. 11. 1987 to the first defendant asking him to receive Rs. 70,000/- towards the balance of sale consideration and requested him to execute the sale deed, in the alternative, the plaintiff suggested the first defendant to receive Rs. 34,000/- and to execute the sale deed. After the receipt of the notice, the first defendant had sent a reply notice containing false allegations. Again on 05. 12. 1987 the plaintiff issued another notice to the first defendant calling upon him to come to the Sub Registrar's Office on 08. 12. 1987 along with his father, the second defendant to execute the sale deed. But the defendants have not executed the sale deed. The defendants have not discharged the previous loans. Hence, the suit.
(3.) THE second defendant has adopted the written statement filed by the first defendant, which runs as follows: The first defendant along with his father, the second defendant executed a sale agreement in respect of the plaint schedule property on 09. 03. 1987 for a sale consideration of Rs. 1,70,000/ -. The time stipulated for executing the sale deed was nine months. There were subsisting encumbrance over the property at the time of sale agreement. The first defendant had discharged the Co-operative Agricultural Bank loan, Melarungunam village, a mortgage loan and the amount borrowed under promissory note. Only on the verge of the last date of the limitation prescribed under the sale agreement, the plaintiff had sent a notice dated 24. 11. 1987 to the first defendant and in the said notice the plaintiff had stated that the first defendant had failed to discharge the previous loans. In the reply notice, the first defendant had stated in clear terms that the previous loans have been discharged and he would execute the sale deed within three months thereafter. The defendants had also undertook to hand over the documents to the plaintiff, relating to the discharge of the loans by them. The plaintiff has not performed his part of contract as per the terms of the agreement. On the other hand the plaintiff had sent a notice on 05. 12. 1987 requiring the defendants to be present at the Sub Registrar's Office on 08. 12. 1987 for the execution of the sale deed. When the defendants contacted the Sub Registrar's Office, they required them to produce the Income-tax Clearance Certificate within 15 days. The first defendant was waiting at the Sub Registrar's office on 08. 12. 1987 between 9. 00 am and 6. 00 p. m. , along with Tvl. A. Ramasamy, Thirugnanam, M. Ramasamy Padayachi. But the plaintiff never turned up. To wriggle out of the situation, the plaintiff had issued a telegram requesting the defendants to be present at the Sub Registrar's Office on 10. 12. 1987 and in the telegram itself, the plaintiff has stated that if the defendants fail to appear before the Sub Registrar on 10. 12. 1987, the agreement will be cancelled. The defendants have never borrowed any hand loan of Rs. 5000/- from the plaintiff. In order to gain time, the plaintiff has filed this vexatious suit. Since the time stipulated under the agreement of sale has already been expired, the plaintiff has no locus standi to file the suit for specific performance of contract and prays for dismissal of the suit. ;