VALLIYATHAL Vs. NOEL DOSS

JUDGEMENT

(1.) THIS appeal is preferred against the judgment and decree, dated 30. 4. 1993, made in O. S. No. 252 of 1989 on the file of Sub Judge, Tiruppur. The plaintiff is the appellant.

(2.) THE case of the plaintiff is that the first defendant executed an agreement of sale with her on 12. 9. 1985 agreeing to sell the suit properties for a sum of Rs. 60,000/- and received an advance of Rs. 10,000/- from the plaintiff on the same day and it was also agreed that the plaintiff has to pay the balance sale consideration of Rs. 50,000/- on or before 11. 12. 1985 and get the sale deed executed. It is further stated in the plaint that after executing the agreement, the first defendant was evading the execution of sale deed inspite of repeated requests by the plaintiff and the plaintiff is always and ready and willing to perform her part of the agreement by offering the balance sale consideration, but still, the first defendant was postponing the execution under some pretext or other and later on the plaintiff came to know that the first defendant executed the sale deed in favour of the third defendant conveying the properties including the suit properties and the alleged transaction will not affect the agreement of sale between the plaintiff and the first defendant and the first defendant is bound to execute the sale deed to the plaintiff as per the agreement and the third defendant has purchased the suit properties after knowing about the existence of the agreement and the sale deed is not binding on the plaintiff and the first defendant and third defendant are bound to execute the sale deed in favour of the plaintiff and to deliver possession of the suit properties. It is further stated by the plaintiff that though three months time has been fixed in the agreement, the time was not the essence of the contract and the first defendant alone is responsible for the delay in completing the transaction and the plaintiff has sought for a direction to the defendants 1 and 3 to execute the sale deed of the suit properties in favour of the plaintiff after receiving the balance sale consideration and to deliver possession and in the event of their failure, the sale deed to be executed by the Court.

(3.) THE third defendant in her written statement has stated that she purchased the suit properties for a valid sale consideration of rs. 2,40,000/- from the first defendant under a registered sale deed dated 26. 5. 1986 and she is a bonafide purchaser for value and even if the sale agreement is true, the plaintiff cannot specifically enforce the same since the time had expired and the suit is liable to be dismissed.