RATHINAM CHETTIAR Vs. EMBAR NAIDU

JUDGEMENT

(1.) THE unsuccessful plaintiff before the trial Court has filed the above appeal.

(2.) ACCORDING to the appellant/plaintiff, the 1st defendant on 23.2.1975 agreed to sell the suit property to the 2nd defendant free of all encumbrances for a consideration of Rs. 53, 000 and he received an advance of Rs. 2, 000. It was agreed that the balance of sale consideration should be paid by the 2nd defendant within six months. ACCORDINGly an agreement was entered into between the parties. The 2nd defendant was always ready and willing to pay the balance of sale price and get the sale deed executed. He approached personally and through friends the 1st defendant to get the sale deed executed. The 2nd defendant also telegraphically contacted the 1st defendant to get the sale deed executed. Ultimately he caused a legal notice to the 1st defendant on 17.8.1975 for the said purpose. But the 1st defendant did not send any reply. On 22.2.1978 the 2nd defendant had assigned all his rights under the said agreement dated 23.2.1975 in favour of the plaintiff for valuable consideration. So the plaintiff has become entitled to enforce the said sale agreement and he has been ready and willing to pay the balance of sale consideration and to get the sale deed executed. The 2nd defendant informed the 1st defendant about the said assignment, on 23.2.1978. Since the 1st defendant did not execute the sale deed in spite of request, the plaintiff filed the suit for specific performance of the agreement dated 23.2.1975.

(3.) THE trial Court has given importance to the fact that the 2nd defendant has not paid the second advance of Rs. 10, 000 as stipulated in the agreement Ex.A8. THE learned Senior Counsel appearing for the appellant/plaintiff has submitted that payment of the said sum of Rs.10, 000 is not a condition precedent even as stated in the agreement, Ex.A8. He has also stated that the 2nd defendant was ready to pay the said sum of Rs.10, 000. Even in the agreement Ex.A8, it is specifically mentioned that payment of Rs.10, 000 is not a condition precedent. So, the trial Court is not correct in holding that by non-payment of Rs. 10, 000, the plaintiff had lost his right to enforce the agreement, Ex.A8.