NANJAPPA GOUNDER Vs. ASHOK KUMAR

JUDGEMENT

(1.) THE defendants in the original suit are the appellants in the Second Appeal. The suit O.S. No. 190 of 2004 was filed on the file of the learned District Munsif, Sathyamangalam for the relief of specific performance of an agreement for sale dated 17.04.2002. The suit was decreed by the trial court. On appeal the decree of the trial court was confirmed. Hence, the appellants/ defendants are before this Court with the present Second Appeal.

(2.) THE respondent herein filed the suit praying for the relief of specific performance directing execution of sale deed and for delivery of possession of suit property, based on the following averments made in the plaint:- The appellants/ defendants who are the owners of the suit property, came forward to sell the same for a sum of Rs.60,000/-, received a sum of Rs.5000/- as advance and executed an agreement for sale on 17.04.2002, agreeing to execute a sale deed on payment of the balance sale consideration of Rs.55,000/- within six months from the date of agreement. They also held out that there was no encumbrance on the property. Subsequently, the appellants/ defendants requested a further advance of Rs.15,000/- and the said amount was paid on 13.09.2002 for which the second appellant/ second defendant issued a receipt. Thus, the balance amount of consideration to be paid after 13.09.2002 was only Rs.40,000/-. Though the respondent/ plaintiff offered to pay the said amount and requested the appellants/ defendants to execute the sale deed within the time stipulated in the agreement, they were evading performance. Later on the respondent/ plaintiff came to know that the suit property along with the other properties had been mortgaged by the second appellant/ second defendant and obtained a loan of Rs.1,00,000/- from an Agricultural Co-operative Bank. When questioned about the encumbrance the appellants/ defendants promised to clear the encumbrance, but did not take effective steps to do the same before the due date. Hence, the respondent/ plaintiff had to issue a lawyer's notice on 10.10.2002 calling upon the appellants/ defendants to execute a sale deed and get it registered authorising the appellants/ defendants to pay the balance sale consideration of Rs.40,000/- towards the discharge of the debt due to the Agricultural Cooperative Bank. But the appellants/ defendants issued a reply notice dated 24.10.2002 containing false and untenable allegations. The respondent/ plaintiff was always ready and willing to perform his part of the contract. In case the court would so direct, instead of making payment of the balance sale consideration to the Agricultural Cooperative Bank, the respondent/ plaintiff would deposit the said amount into the court to be applied towards the discharge of the mortgage. In such circumstances, the respondent/ plaintiff was constrained to file the suit for specific performance.

(3.) THE learned trial Judge, after trial, accepted the case of the plaintiff in full and disbelieved the defence case of the defendants and consequently decreed the suit as prayed for with cost. On appeal, in A.S. No. 35 of 2010 on the file of the Sub Court, Sathyamangalam, the learned Subordinate Judge agreed with the findings of the trial court and dismissed the appeal confirming the decree passed by the trial Court. Hence, the present second appeal has been filed by the appellants/ defendants.