M RAJESWARI Vs. P R GOPAL

JUDGEMENT

(1.) The suit is filed praying for specific performance of the agreement of sale dated 19.2.1994 and also for permanent injunction restraining the defendant from interfering with and also from alienating the suit property.

(2.) The plaintiff would contend that the plaintiff has entered into an agreement with the defendant under the agreement of sale dated 19.2.1994 with respect to the suit property. The total sale consideration agreed upon under the said agreement is Rs. 10,25,000/=. The plaintiff paid the defendant an advance of Rs. 50,000/= at the time of entering into the agreement. The balance sale consideration was to be paid the plaintiff to the defendant on or before the execution of the sale deed. The time frame fixed under the sale agreement was three months. The defendant is bound to sell the suit property free from all encumbrances. The plaintiff had to arrange to get vacant possession of the schedule mentioned property from the defendant. She also had to secure the loan from the Oriental Benefit and Deposit Society Limited, Chennai. The defendant was required to furnish the plaintiff the exact amount due and payable to the Indian Overseas Bank, Sowcarpet Branch, Chennai from where the defendant had already obtained loan to enable the plaintiff to the balance sale consideration released by the Oriental Benefit and Deposit Society Limited, Chennai. There were exchange of notices between the parties. The plaintiff paid a sum of Rs. 27,145.20 towards arrears of Property Tax and Rs. 3270/= towards arrears of Water Charges for the schedule mentioned property. In the meantime, the defendant objected to the payments made by the plaintiff to the Corporation. A sum of Rs. 35,000/= was subsequently paid on 27.6.1994 by the plaintiff to the defendant. The plaintiff also arranged and obtained vacant possession of the tenanted portions viz., third and fourth floors of the schedule mentioned property from the tenant I. Selvam paying a sum of Rs. 1,30,000/= to him. In the meantime, one R. Jeyarani claimed through a lawyer's notice dated 4.7.1994 that she had entered into an agreement of sale with the defendant on 9.8.1993 with respect to the suit property. The defendant informed the plaintiff that the amounts payable to the Bank and to the Corporation have to be determined in the proceedings pending before the Forum concerned. The defendant has been evading the performance of his part of the contract for the schedule mentioned property has appreciated in value. The defendant is also making efforts to forcibly take possession of the third and fourth floors of the schedule mentioned property from the plaintiff. Hence, the suit, for the aforesaid reliefs.

(3.) The defendant has submitted in the written statement that it was agreed that the plaintiff would purchase the suit property for a sale consideration of Rs. 10,25,000/= and would also clear the dues of Rs. 6,75,000/= due to the Indian Overseas Bank, Sowcarpet Branch, Chennai. She also undertook to pay a sum of Rs. 1,30,000/= in addition to the sale consideration by way of cheque separately in favour of the defendant. The defendant entered into an agreement to sell only the ground floor, first floor and second floor of the suit property. The plaintiff, under the agreement, has no right or interest over third and fourth floors of the suit property. The phrase "free from all encumbrances" was employed in the agreement with the specific understanding that the plaintiff would discharge the mortgage created by the defendant with Indian Overseas Bank, Sowcarpet Branch. The defendant obtained Income Tax Clearance certificate. But, the plaintiff was never ready and willing to perform her part of the agreement. The total sale consideration was in the region of Rs. 18,30,000/=. The very fact that the plaintiff approached the Oriental Benefit and Deposit Society Limited, Chennai for securing the balance sale consideration would go to show that the plaintiff did not have adequate funds for the purchase of the suit property. The plaintiff should have ascertained the dues from the bank and cleared the loan payable by the defendant. The parties intentionally mentioned the time frame of three months contemplated under the agreement of sale as the essence of the contract. The plaintiff has not even chosen to deposit the alleged balance sale consideration into court. The defendant denies the receipt of further advance of Rs. 35,000/=. The alleged payment of Rs. 1,30,000/= to the tenant is also denied. The agreement of sale was entered into between the parties without proper identity of the suit property. As there was no meeting of minds, the agreement itself is void. For the aforesaid reasons, the plaintiff is not entitled to the specific performance of the agreement of sale.