D V D€™ MONTE Vs. N VENKATESH

JUDGEMENT

(1.) O. S. A. No. 401 of 2002 has been filed by the first defendant in C. S. No. 180 of 1990 against the part of the decree directing him to pay a sum of Rs. 4,13,300/ -. On the other hand, the plaintiffs have filed the connected O. S. A. No. 128 of 2005 against the refusal of the learned single Judge in granting a decree for specific performance of the contract. Both the appeals have been heard together. For convenience, parties are referred to as they are described in C. S. No. 180 of 1990.

(2.) THE plaintiffs had made the following averments:- Three plaintiffs are brothers, being the son of one A. Narayanaswami. Defendants 2 to 8 are the children of the first defendant. THE first defendant entered into an agreement dated 13. 5. 1981 mainly with the plaintiffs and their mother and one S. Padmanabhan. First defendants wife and children were also shown as partners. THE agreement was to sell the property situate at Nos. 15, 16 & 17, Wallers Road for a consideration of Rs. 13,00,000/ -. First defendant received an advance of Rs. 2 lakhs from the plaintiffs and his mother and handed over all the original documents as collateral security for the advance paid. First defendant had agreed to demolish the superstructure standing on such land and to deliver possession to the plaintiffs to enable them to start construction work. Major portion of the building was demolished by the Contractor, but some portion was not demolished since the same was under the lock and seal in view of order of attachment issued by Courts at the instance of one B. K. Sagar of Delhi . THE plaintiffs had submitted the building Plan to the M. M. D. A and the corporation authorities in February and March 1982 after getting the signature of the first defendant, but because of the attachment proceedings, such work had been stopped. Apart from the advance of Rs. 2 lakhs, which was acknowledged in the agreement, the first defendant had received a further sum of rs. 1,44,500/- from the plaintiffs on different dates. Further the first defendant had borrowed a sum of Rs. 40,000/- on different dates from one N. Balakrishna n and others by executing pro-notes on the guarantee of the first plaintiff and on the collateral security of the original documents. Since the first defendant was not in a position to repay such principal and interest, as guarantor the first plaintiff had paid principal and interest and got necessary endorsements and receipts for claiming from the first defendant. Total amount under the pro-notes with interest was rs. 1,18,336/- as on July 1987. Interest on Rs. 1,18,336/- at 24% works out at Rs. 70,800/-upto January 1990, which sum should be treated as further payment apart from the payment of Rs. 2 lakhs and Rs. 1,44,500/ -. Thus the total payment of rs. 5,33,736/- had been made by the plaintiffs. Under the agreement of sale, the first defendant wanted to have 2000 sq. ft in the first floor for his own use agreeing to pay a lesser price than the prevailing market value. THE balance consideration was to be paid by the plaintiffs within 18 months from the date of handing over of vacant site for construction. Under the partnership deed dated 13. 5. 1981, the first plaintiff was the main party, who arranged for negotiation of purchase, and the plaintiffs had paid the consideration. THEir mother expired on 5. 2. 1983 and their father had released his interest in such estate of his wife in favour of the plaintiffs. S. Padmanabhan, who was the working engineer and Mrs. D Monte, wife of the first defendant, have been taken at the suggestion of the first defendant for protecting the interest of the first defendant in the transaction and they are not bound to contribute any capital, but to share 50% of the loss and profit in the deal. Such S. Padamanabhan had also died. While the matter stood thus, all of a sudden, the first defendant sent a letter dated 25. 6. 1987, while the agreement was still alive, stating that the agreement was abandoned and for return of the original title deeds without making any whisper regarding the advance payment of Rs. 2 lakhs and further payments totalling Rs. 5,3,736/ -. THE defendants who are all the family members of the first defendant, had signed the enclosed letter dated 23. 6. 1987 stating that the business venture had been abandoned and they have no objection to hand over the title deeds to the first defendant. A reply dated

(3.) WHETHER the payment of Rs. 1,44,500/- alleged by plaintiff is true ?