- (1.) The defendants are the appellants and the plaintiff is the respondent. The plaintiff filed a suit for specific performance of contract of sale on the following averments. The plaintiff was on the look-out for a house or a plot of land for building a house as she was not happy in the house she was residing at Thiagappa Mudali Street, Kilpauk. A vacant piece of land described in the plaint schedule belonging to the first defendant was offered for sale. The plaintiff entered into an agreement of sale on 14th December, 1973 and paid an advance of Rs. 1,000 to the first defendant for purchase of the suit property. As the plaintiff wanted to start the construction without delay, she wanted the plan to be submitted immediately by the first defendant, and this was agreed to and incorporated as a term in the agreement of sale. Thereupon the plaintiff applied for getting connection for water supply and also prepared a building plan and sent it to the first defendant. The first defendant suggested some alterations and the plaintiff believing that the suggestions made by the first defendant were bona fide, carried them out and prepared another plan. In the meantime the plaintiff came to know that the first defendant was negotiating the sale of the property. Since the first defendant did not sign the plan and forward the same to the Corporation as agreed and execute the sale deed within the period of three months agreed to in the agreement of sale, the plaintiff after notice has filed a suit for specific performance of the contract of sale.
(2.) Defendants 2 to 4 are the sons and daughter of the first defendant. The defendants in their written statement have raised the following pleas; what was agreed to be sold under the agreement of sale dated 14th December, 1973 was not an independent and separate piece of land, but part of No. 17/1, Kilpauk Garden Road, Madras. Even at the time of agreement of sale the defendants pointed out to the plaintiff the difficulties in the way of selling the suit property and wanted the plaintiff to make sure whether the Corporation of Madras would sanction the plan for construction of a building on a plot of land measuring less than 1-1/2 grounds, contrary to the rules and whether they would permit the sub-division of the plot without leaving a gap of 12 feet for entrance to the rear portion. It was agreed that to the benefit of both parties the sanctioning of the plan by the Corporation of Madras should be made a condition precedent for sale of the plot. It was then agreed that the plaintiff should prepare a plan and hand it over to the defendants for being submitted to the Corporation of Madras for sanction and the sale deed had to be executed only if the plan was sanctioned. Clause 8 of the agreement provided that if the plaintiff fails to get the sanction within three months from the date of agreement, the advance of Rs. 1,000 paid should be returned. The plaintiff, through her husband, made enquiries in the Corporation and came to know that the plan will not be sanctioned since the sub-division of the property may not be granted and that she cannot construct the building with the plan sanctioned in favour of another person. It was the plaintiff who had committed the default and knowing that she has defaulted, had issued a suit notice to the defendants. Even otherwise, since the sanction of the plan was not obtained within three months from the date of agreement the plaintiff at best would be entitled to refund of advance, and the suit for specific performance is misconceived. The trial Court framed the following three issues: (1) Whether the plaintiff is entitled for the specific performance of the agreement of sale? (2) Whether the defendants have committed breach of the terms of agreement of sale by not signing the plan for sanction? (3) To what other reliefs the parties are entitled to? The trial Court recorded the following findings: (1) It was the duty of the first defendant to sign the plan and submit it to the Corporation. Without doing so, it is not open to the first defendant to say that the Corporation of Madras would not sanction the plan. The plea that before the sanction of the plan, the plot should be sub-divided is not borne out by the agreement of sale Exhibit A-l. (2) The suit property should be first sub-divided before the plan can be submitted to the Corporation is a plea introduced for the first time only at the time of the trial and not referred to in Exhibit A-l. (3) The suggestion that the building plans, Exhibits A-2 and A-3 were prepared after the filing of the suit and produced before the first defendant on 29th December, 1973 was rejected by the trial Court. (4) The first defendant did not perform his part of the contract by signing the building plan. Without sending the plan to the Corporation the first defendant cannot imagine difficulties in the sanction of the plan. The first defendant has committed a breach of the contract by not signing the plan prepared by the plaintiff and forwarding the same to the Corporation for sanction.
(3.) On these findings the trial Court decreed the suit with the following directions: (a) The plaintiff should send the necessary plans to the first defendant by registered post within ten days from the date of decree. On receipt of the plans the first defendant should sign and submit them to the Corporation for sanction. (b) Pending sanction of the plan by the Corporation the defendants should execute the sale deed in favour of the plaintiff in respect of the suit property within two months from the date of decree and the plaintiff should deposit the balance of sale consideration in Court within six weeks from the date of the decree. (c) On such deposit, defendants should give vacant, possession of the suit property to the plaintiffs. Aggrieved against the decree and judgment of the trial Court the defendants have filed the appeal before this Court.;