S.KALIANNA GOUNDER Vs. S.PERIYASAMY

JUDGEMENT

(1.) This appeal is filed against the Judgment and Decree dated 30.09.1994 passed OS No. 246 of 1990 on the file of the Sub Court, Namakkal. The trial Court decreed the suit with costs payable by the defendants 1 to 5. Aggrieved by the same, the defendants 1 to 5 have come up with this appeal.

(2.) The respondents 1 to 3, as plaintiffs, have filed the above suit in O.S. No. 246 of 1990 for specific performance of the agreement dated 15.12.1986. The said agreement was entered into between the plaintiffs and the defendants 1, 2, 6, 7, 8 and 9 on their own behalf and on behalf of the minor defendants 3, 4, 5, 6, 10, 11 and 12. Pending appeal, the 1st appellant died and 2nd appellant was recorded as legal representative of the deceased 1st appellant. Appellants 3 to 5 who were minors by then, were declared majors and the 2nd appellant was discharged from the guardianship.

(3.) Agreeing to convey land measuring an extent of 3.15 acres at the rate of Rs. 2,20,000/- per acre, the agreement dated 15.12.1986 came to be executed. The total sale consideration payable by the plaintiffs worked out to Rs. 6,93,000/-. On the date of the agreement, the plaintiffs paid an advance of Rs. 50,000/- and the contract was to be completed within a period of 5 months from the date of the said agreement i.e., on or before 14.05.1987. As per the agreement the defendants were to develop the lands into a lay out and seek approval from the appropriate authorities. Such approval came to be granted in January 1988. Thereafter, on 30.04.1988, the plaintiffs paid a sum of Rs. 1,20,000/- and the defendants conveyed six plots of lands as laid out by the plaintiffs. On 31.08.1988, the defendants received a further sum of Rs. 1,43,200/- and sold seven plots. One plot was sold on 16.11.1988 and on that date the defendants received a sum of Rs. 20,000/-. The payments made and the execution sale deeds on 30.04.1988, 31.08.1988 and 16.11.1988 are not in dispute. Thereafter, on 13.11.1989 the plaintiffs issued a notice demanding specific performance. A reply was sent by the defendants 1 to 5 on 26.11.1989, claiming that the plaintiffs were not ready and willing to perform their part of the contract. They also claimed that as per the agreement the defendants 1 to 5 should be paid a sum of Rs. 3,50,000/- towards their share in the land and the agreement was entered into as a single agreement since the plaintiffs wanted to develop the lands by laying out the same into the residential plots. Pointing out that the agreement fixed a period of five months for performance and said period ended on 14.05.1987, the defendants 1 to 5 would claim that the plaintiffs were not ready and willing to perform their part of the contract. The financial capacity of the plaintiffs to honour the agreement was also denied. However, the defendants 1 to 5 had made it clear that if only the plaintiffs were ready to pay the balance amount within 15 days from the date of the receipt of the reply, the defendants 1 to 5 will be ready and willing to execute the sale deed in terms of the contract. It was also made clear that the said offer is only made out of magnanimity and the same cannot be treated as extension of the time fixed under the agreement. The defendants 7, 8 and 13 sent a reply on 26.11.1989, wherein it was pointed out that those defendants were always been ready and willing to execute the sale deed as per the contract. According to them, it was the 6th defendant Natarajan and his sons, namely defendants 9 and 10, who were delaying the execution of the sale deed and thus had been preventing the defendants 7, 8 and 13 also from receiving the sale consideration and executing the sale deed. It was also made clear that those defendants were not responsible for the delay that had accrued in the execution of the sale deed. Since the defendants 1 to 5 had sent a reply notice refusing to execute the sale deed the plaintiffs have come forward with the above suit on 22.02.1990 seeking specific performance.