Shivaraj V. Patil, J. - (1.) The unsuccessful Defendants 2 to 5 in both the Courts below in a suit for specific performance are the appellants herein. Hereinafter the parties will be referred to as arrayed in the original suit No. 241/71. Briefly stated that facts leading to filing of this appeal are : The Plaintiff filed the original suit in the Court of the Principal Subordinate Judge, Vellore for specific performance of the contract and other reliefs. According to the plaintiff, the suit scheduled property belonged to the defendant No. 1. He is carrying on business in hardware in the premises Door No. 39, Long Bazar, Vellore, the property belonging to the brother of the first defendant. He is in exclusive occupation and possession of the suit property Door No. 36 as a tenant of the first defendant from about 1962 on a monthly rent of Rs. 200 using it as godown for his business purpose. The Defendants 2-4 and the husband of the 5th defendant are also hardware merchants carrying on similar business in adjoining shop Door No. 38. The first defendant intended to sell the suit property and intimated the plaintiff about the same and requested him to permit intending purchasers and brokers to inspect the property. The first defendant offered to sell the property to the Plaintiff also. The plaintiff intimated Shri Yousuf Sharif, the husband of the 1st defendant by letter dated 8-1-1971 that he was interested in purchasing it. In July, 1971 one Tangvelli Chetty, the broker of the first defendant informed the plaintiff that the first defendant was prepared to sell the property to him. Therefore, the plaintiff and his son went to the house of the first defendant at Madras and negotiated. The first defendant agreed to sell the suit property to the Plaintiff for a sum of Rupees 55,000/-. Accordingly, the first defendant executed the agreement on 27-7-1971 having received a sum of Rs. 10,000/- as advance. It was agreed that the first defendant should execute the sale deed within 90 days from the date of the agreement after receiving the balance of sale price of Rupes 45,000/-. The plaintiff was always ready and willing to perform his part of the contract. The first defendant refused to execute the sale deed even after receiving notice from the plaintiff for completing the sale transaction taking a stand that the plaintiff had issued a notice asking her to execute the sale deed before the expiry of the 90 days fixed under the agreement. According to the first defendant, the notice was issued by the plaintiff before the expiry of 90 days only to create litigation. While the correspondence was going on between the plaintiff and the first defendant, the defendants 2 to 4 and the husband of the 5th defendant brought into existence a sale deed executed and registered on 9-11-1971 for a sum of Rupees 50,000/- at Madras. The first defendant dishonestly sold the suit property to the defendants 2-5 who had knowledge of the prior agreement dated 27-7-1971 executed in favour of the plaintiff. The subsequent transaction of sale by the defendant No. 1 in favour of defendants 2 to 5 was not bona fide. Hence the plaintiff filed the suit for specific performance and other reliefs against the defendants 1 to 5.
(2.) The first defendant filed the written statement resisting the suit among other that the plaintiff was not ready and willing to purchase the property as per the conditions in the agreement within the specified time of 90 days. However, the defence set up by the first defendant was struck off as per order dated 23-7-1974 of the trial Court passed in I.A. No. 1050 of 1973.
(3.) The defendants 2 to 4 filed the written statement stating that the plaintiff be put to strict proof of everyone of the allegations made in the plaint in regard to the execution of the suit agreement. They also claimed that they were bona fide purchasers of the suit property for value without notice of the prior agreement of sale executed in favour of the plaintiff. The 5th defendant remained absent and ex parte in the suit.;