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2017 DIGILAW 865 (MAD)

K. JOHNSON DAVID v. A. KANDASAMY

2017-04-03

A.SELVAM, P.VELMURUGAN

body2017
JUDGMENT : P. Velmurugan, J. The plaintiff in O.S. No. 3 of 2008 on the file of the learned Additional District Court (Fast Track Court No. I) Thoothukudi is the appellant in the above appeal. The appellant/plaintiff filed the suit in O.S. No. 3 of 2008 for specific performance in respect of the sale agreement dated 09.02.2007 directing the respondent/ defendant to execute a sale deed in favour of the appellant/plaintiff with respect to the plaint schedule property after receiving the balance sale consideration of Rs. 10,90,000/- (Rupees ten lakhs and ninety thousand only) within the time stipulated by the Court and in default the sale deed may be executed by this Court on behalf of the respondent/defendant and at the cost of the appellant/plaintiff. The said suit was dismissed by the Trial Court vide judgment and decree dated 02.09.2010. Being aggrieved by the judgment and decree of the Trial Court, the appellant/plaintiff has filed the above appeal. 2. The case of the appellant/plaintiff is as follows: The suit property belongs to the respondent/defendant. The appellant/plaintiff and the respondent/defendant entered into a sale agreement on 09.02.2007 and the total sale consideration was fixed at Rs.29,90,000/- (Rupees Twenty nine lakhs ninety thousand only). A sum of Rs.5,00,000/- (Rupees Five Lakhs only) was paid as advance towards sale consideration on the date of the agreement. Three months of time was given to complete the sale by paying the balance sale consideration. As per the sale agreement, the defendant/ respondent has to clear the encumbrances in the property, within 3 months and to execute the sale deed. When the appellant/ plaintiff was ready to perform his part of the contract, the respondent/defendant informed that he will clear all the debt within 15 days and ready to perform his part of the contract the respondent/ defendant informed the appellant/plaintiff that the original sale deed was deposited in Tamil Nadu Mercantile bank as equitable mortgage and obtained loan from the said bank. Further, the respondent/defendant informed that he will clear all the debt within 15 days and ready to perform his part of the contract within the time prescribed in the agreement. Believing the same, the appellant/plaintiff paid part of the sale consideration to the respondent/defendant and the payment particulars are mentioned below: 1. On 21.06.2007, the appellant/plaintiff paid as sum of Rs. 5,00,000/- 2. On 05.07.2007, the appellant/plaintiff paid a sum of Rs. Believing the same, the appellant/plaintiff paid part of the sale consideration to the respondent/defendant and the payment particulars are mentioned below: 1. On 21.06.2007, the appellant/plaintiff paid as sum of Rs. 5,00,000/- 2. On 05.07.2007, the appellant/plaintiff paid a sum of Rs. 1,00,000/- 3. On 26.07.2007, the appellant/plaintiff paid as sum of Rs. 4,00,000/- 4. On 24.08.2007, the appellant/plaintiff paid as sum of Rs. 2,00,000/- 5. On 30.08.2017, the appellant/plaintiff paid as sum of Rs. 2,00,000/- All the above said payment totalling Rs.14,00,000/- (Rupees Fourteen lakhs) has been acknowledged by the respondent/ defendant on the back side of the sale agreement dated 09.02.2007. From the above, the conduct of the respondent thereby receiving the amount even after the expiry of the contract, would go to show that time is not essence of the contract. The appellant/plaintiff was always ready and willing to perform his part of the contract and when he requested the respondent/ defendant to execute the sale deed several times, the respondent/defendant evading to execute the sale deed under some pretext or other. Further, the respondent/ defendant in order to escape from the clutches of law, sent a legal notice to the appellant/plaintiff stating that he terminated the sale agreement dated 09.02.2007. Hence, the appellant/plaintiff filed the above suit for the relief as stated earlier. 3. The case of the respondent/defendant is as follows: The respondent/defendant admitted the sale agreement dated 09.02.2007 and also the total sale consideration of Rs. 29,90,000/-. He further submitted in the written statement that the suit schedule property is worth Rs. 1,00,00,000/- and in order to settle family debt, the respondent/defendant accepted for the low sale consideration with the appellant/plaintiff. The appellant/plaintiff was not ready and willing to perform his part of the contract. Even after the expiry of time, as per the sale agreement, the respondent insisted the appellant/plaintiff for payment and the appellant/plaintiff agreed that within 15 days he would pay the balance sale consideration and get the sale deed in his favour, he had failed to do so. Therefore, the respondent/defendant sent a legal notice dated 24.08.2007 and cancelled the sale agreement dated 09.02.2007. Even after the receipt of the notice, the appellant/plaintiff paid Rs. 2,00,000/- in the respondent/defendant account and the respondent defendant told that he would repay that amount, for which the appellant stated that respondent would keep that account for damages. Therefore, the respondent/defendant sent a legal notice dated 24.08.2007 and cancelled the sale agreement dated 09.02.2007. Even after the receipt of the notice, the appellant/plaintiff paid Rs. 2,00,000/- in the respondent/defendant account and the respondent defendant told that he would repay that amount, for which the appellant stated that respondent would keep that account for damages. Further the respondent/defendant also informed the appellant/plaintiff that he cancelled the agreement. In spite of that, the appellant/plaintiff credited a sum of Rs. 2,00,000/- on 30.8.2017 in the respondent bank account. After deducting a sum of Rs. 4,00,000/- towards damages the respondent agreed to repay Rs. 15,00,000/- within 15 days However, due to his family circumstances, he could not repay the said amount since the appellant has not paid the balance sale consideration for clearing the dues, the respondent himself paid the amount to the bank and cleared the dues. He further stated that the property is worth about Rs.1.25 crores. Thus, the appellant/plaintiff is not entitled to the relief of specific performance and the suit is liable to be dismissed. 4. Based on the pleadings, the trial Court has framed the following issues; 1. Whether the amounts paid by the plaintiff on 24.08.2007 and 30.08.2007 are part payment towards damages? 2. Whether the plaintiff is entitled to the relief of specific performance and delivery of possession as prayed for? 3. To what relief the plaintiff is entitled to? 5. In order to prove the cases of the plaintiff, on behalf of the appellant/plaintiff, PW1 and PW2 were examined and Ex.A1 to A14 were marked. On the side of the respondent/defendant DW1 was examined and Ex.D1 and D2 were marked. On consideration of the evidence on record and the contentions of the both the parties, the Trial Court held that the appellant/ plaintiff was not ready and willing to perform his part of the contract and thus dismissed the suit. Being aggrieved by the said judgment and decree, the appellant/plaintiff is before this court. 6. Heard the learned Senior Counsel for the appellant and the learned Senior Counsel for the respondent. 7. The learned Senior Counsel for the appellant submitted that the appellant/plaintiff has proved his case through oral and documentary evidence to the effect that he was always ready and willing to perform his part of the contract. 6. Heard the learned Senior Counsel for the appellant and the learned Senior Counsel for the respondent. 7. The learned Senior Counsel for the appellant submitted that the appellant/plaintiff has proved his case through oral and documentary evidence to the effect that he was always ready and willing to perform his part of the contract. At the time of entering in to the contract, the respondent/defendant never revealed that the title deed of the suit property was with the Bank. When the appellant/plaintiff insisted the respondent/defendant to produce the original documents, at that time only, he revealed that the documents were mortgaged with the Tamilnadu Mercantile Bank by way of deposit of title deeds. In order to clear that dues, he needed money for which the appellant/ plaintiff also paid the money. However the respondent/defendant has not produced the original title deeds. Even after the expiry of the agreement the appellant/ plaintiff paid the amount and the respondent/defendant also received the amount. This shows, that the appellant plaintiff was always ready and willing to perform his part of the contract since the respondent did not produce the original title deed even after receipt of the amount for about Rs. 15,00,000/- (Rupees fifteen lakhs only). The respondent's son sent legal notice to the appellant. Even after the said notice also, the respondent/defendant received sum of Rs.4,00,000/- and the same has also been acknowledged by the respondent/defendant which could also be seen from the back side of the sale agreement/Ex. A1. But the Trial Court failed to consider the conduct of the respondent/defendant and simply dismissed the suit without any valid reasons. The trial Court failed to exercise the discretionary power judiciously and arbitrarily refused to grant the relief of specific performance. In support of his contentions the learned Senior Counsel would rely on the following decisions:- 1. 2011 5 L.W. 736 (T.R.K. Saraswathy v. R. Kandasamy & Ors.) 2. 2014 (1) TNCJ 296 (MAD) (MD) (P. Meenakshisundaram v. Dr. P. Vijayakumar and Anr.) 3. 2005 (7) SCC 534 (Aniglase Yohaman v. Ramlatha & Ors.) 4. 2008-2-L.W. 907 = 2008 (4) SCC 212 (Ramakrishna Pillai and Anr. v. Mohammed Kunju and Ors.) 5. 2012 (5) SCC 712 (Narinderjit Singh v. North Star Estate Promoters Limited) 8. Per contra, the learned Senior Counsel appearing for the respondent would submit that the suit property is worth about more than Rs. 2008-2-L.W. 907 = 2008 (4) SCC 212 (Ramakrishna Pillai and Anr. v. Mohammed Kunju and Ors.) 5. 2012 (5) SCC 712 (Narinderjit Singh v. North Star Estate Promoters Limited) 8. Per contra, the learned Senior Counsel appearing for the respondent would submit that the suit property is worth about more than Rs. one crore and due to family debt and also in order to clear the bank due, the respondent/defendant entered into a sale agreement with the appellant/plaintiff for the lesser price. Even then, the appellant/ plaintiff was not ready and willing to perform his part of the contract and he has not paid the sale consideration within the stipulated period. Therefore, the respondent/defendant cancelled the agreement. By analysing all these aspects, the Trial Court has rightly rejected the prayer of the appellant/plaintiff and dismissed the suit thereby refusing to grant the relief of specific performance. In support of his contention, the learned Senior Counsel for the respondent relied on the following decision :- 2015-2-L.W. 419 = 2014 (6) CTC 88 (E. Prakash v. B.R. Sampath Kumar) 9. We have carefully considered the submissions made by the learned Senior Counsel on either side and also perused the materials available on record including the judgment and decree of the Trial Court. The points that arise for consideration in this appeal are as follows :- 1. Whether the time is the essence of Ex.A.1 Agreement of sale dated 09.02.2007 2. Whether the appellant/plaintiff was always ready and willing to perform his part of the agreement of sale. 3. Whether the respondent had raised any false plea and if so, whether that will amount to the respondent approaching the court with unclean hands. Point No. 1 10. A perusal of Ex.A.1 sale agreement dated 09.02.2007 shows that the purchaser/appellant shall pay the balance sale consideration and get the sale deed executed within three months from 09.02.2007. There is no specific reason stated except usual condition to the effect that time for execution the sale deed has been fixed for three months even though the time is not made as essence of the agreement of sale. It can be made as essence of the agreement of sale by issuing a notice to the purchaser by the vendor. But in this case even after the expiry of 3 months i.e. 09.05.2007 the respondent/defendant received a sum of Rs. 5,00,000/- on 21.6.2007. Rs. It can be made as essence of the agreement of sale by issuing a notice to the purchaser by the vendor. But in this case even after the expiry of 3 months i.e. 09.05.2007 the respondent/defendant received a sum of Rs. 5,00,000/- on 21.6.2007. Rs. 1,00,000/- on 5.07.2007 and Rs. 4,00,000/- on 26.7.2007 and thus a total sum of Rs. 10,00,000/- has been received after the expiry of the contract towards sale agreement. Though the respondent/ defendant sent notice to the appellant dated 29.08.2007 stating that foe appellant was not ready and willing to perform his part of the contract, therefore he cancelled the sale agreement and claimed for damages. It is needless to say that it is only an unilateral cancellation. On a perusal of the plaint, written statement, the endorsement made in the Ex.A1/sale agreement and the evidence of appellant/plaintiff and respondent/ defendant, it would go to show that the respondent/defendant admitted that a sum of Rs. 4,00,000/- was deposited in his bank account subsequent to the date of notice dated 24.08.2007. 11. From the above it is clear that even after the expiry of sale agreement condition with regard to time limit, the respondent/ defendant received a sum of Rs. 10,00,000/- and after the notice dated 24.8.2007 the respondent/defendant received a sum of Rs. 4,00,00/- and same has been admitted in the written statement and also during cross examination. Therefore, in this case, time is not the essence of contract. Therefore, the contention of the respondent/defendant is not acceptable as a valid reason for refusing of execution of sale deed in favour of the appellant on this ground. The Trial Court has failed to look into this fact. Accordingly the first point is answered in favour of the appellant/plaintiff. Point : 2 12. As already stated, the appellant in the plaint has averred that he is always ready to perform his part of contract and before the trial court, he was examined as P.W. 1 and sale agreement was marked as Ex.A.1 and the payments made by him have been endorsed on the back side of the sale agreement and the same were marked as Ex. A-2 to Ex. A.4. He had also examined P.W.2 to prove about his readiness and willingness. A-2 to Ex. A.4. He had also examined P.W.2 to prove about his readiness and willingness. The respondents also admitted the receipt of the sale consideration and endorsed in the Ex.A.1 sale agreement and he has not denied Ex.A2 to Ex.A4 endorsements. Regarding the Ex.A.5 legal Notice issued by the respondent/ defendant to the appellant / plaintiff, he has explained in the plaint itself, in paragraph 6, that after the receipt of the said notice, he approached the respondent and questioned about the issuance of the notice to him and he was informed that the notice was caused by his son and appellant/plaintiff need not worry about it and again the respondent/ defendant demanded a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) from the appellant/plaintiff and the respondent/ defendant had instructed the appellant/plaintiff to pay the said amount directly to the respondent's bank account and as per the instructions of the respondent/defendant the appellant/ plaintiff paid a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) in the respondent's bank account on 30.08.2007. It shows the conduct of the respondent that he had given up the notice dated 29.08.2007 and also receipt of further payment in his account also shows that he had given up the allegation made in the notice. On the other hand the respondent/defendant would state in the written statement in this regard that, since the appellant/plaintiff was not ready and willing to perform his part of contract within the stipulated time, he had issued notice. After the said notice, the appellant/plaintiff agreed to consider subsequent payment of Rs. 4,00,000/-(Rupees Four Lakhs only) as damages and the respondent/defendant agreed to return a sum of Rs. 15,00,000/- (Rupees Fifteen lakhs only) to the appellant/plaintiff. Further he would state that there is no specific condition in Ex.A.1 sale agreement that respondent should produce the original title deeds before the execution of the sale deed. Though there is no specific condition in Ex.A.1. sale agreement that vendor should produce the original title deeds for inspection of the purchaser, the demand of the appellant/plaintiff to produce the original title deeds cannot be considered to be unreasonable and the same will not amount to imposing of a new condition. Though there is no specific condition in Ex.A.1. sale agreement that vendor should produce the original title deeds for inspection of the purchaser, the demand of the appellant/plaintiff to produce the original title deeds cannot be considered to be unreasonable and the same will not amount to imposing of a new condition. As already held that the time is not essence of the contract, as per the oral and documentary evidence, though in the Agreement Ex.A.1, there are no contents regarding the title deed was deposited with the bank and also further the respondent/ defendant admitted during the cross examination that after the said notice he received a sum of Rs. 4,00,000/- (Rupees Four Lakhs only). It shows whenever the respondent/defendant demanded money, the appellant/plaintiff had paid as requested by the respondent/defendant. Out of the total sale consideration of Rs. 29,90,000/- (Rupees Twenty Nine Lakhs Ninety Thousand only), a sum of Rs. 19,00,000/- (Rupees Nineteen Lakh only) was paid and the respondent/ defendant neither cleared the bank dues out of the said amount nor produced title deed. But the trial court in para 7 in page no.6 of its judgement has held as "In the present case also plaintiff had not fixed any specific date calling upon the defendant to execute the sale deed. He has not deposited the amount in court or in the account of the defendant. Since plaintiff is not ready and willing he has not sent a reply to the cancellation notice. So on this ground also plaintiff is not entitled for specific performance of contract." In this regard it is useful to refer the decision of the Hon'ble Apex Court in PRK Saraswathi case (cited supra), wherein the Hon'ble Apex Court in an identical case held as follows: "(xii) In this context, it is relevant to refer to the decision of reported in AIR 1967 Madras 220 (V 54 C 66) = (1966) 79 L.W. 486 (S.B. Narayanswami Pillai v. Dhanakoti Ammal) wherein, in paragraphs 5, 7, 8, and 9 it is laid down as follows: "5. ... Once it is held that with reference to a particular contract, time is not the essence, then the readiness and willingness which the plaintiff must establish is the readiness and willingness to perform his part of the contract at the proper time, that its, within a reasonable time. ... Once it is held that with reference to a particular contract, time is not the essence, then the readiness and willingness which the plaintiff must establish is the readiness and willingness to perform his part of the contract at the proper time, that its, within a reasonable time. If time could be reasonably extended and if he extended and if he establishes his capacity to perform the contract within the exten time that will be sufficient. All that the Privy Council had observed in Adeshit v. Flora Samson, AIR 1928 PC at pg 216 = (1928) 28 L.W. 25 is in a suit for specific performance on the other hand be treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit." In my view when time is provided for performance readiness and willingness on the part of the person seeking performance can only mean that on his part he has throughout the period kept the contract as subsisting one with a preparedness to fulfil his obligations and accept performance when the time came. This does not mean that the purchase should besides show that the had command of the necessary finance throughout the life of the contract. Such an insistence will make the fixing of a time for performance meaningless. 7... In the new Specific Relief Act, 47 of 1963 Section 16 provides in case of contract involving the payment of money that it is not essential for the plaintiff to actually tender in the defendant or to deposit in court any money except when so directed by the Court, the plaintiff having only to aver the performance of or readiness or willingness to perform the contract according to its true construction. In Bank of India v. Chinnoy, AIR 1950 Privy Council 90 at pg 96, Lord Mac. Dermoft observes thus. In Bank of India v. Chinnoy, AIR 1950 Privy Council 90 at pg 96, Lord Mac. Dermoft observes thus. "It is true that plaintiff 1 stated that he was buying for himself, that the had not sufficient ready money to meet the price and that the had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction". In Subayya v. Garikapati Veeraya AIR 1957 Andhra 307, Subba Rao CJ, observes at pg. Even otherwise, on the evidence I am satisfied that the first plaintiff was substantial enough to make ready and necessary amount if the occasion arose. I hold that the first plaintiff was ready and willing to perform his par of the contract." 8. Purchaser could be said to be ready and willing to perform his par of the contract if he could find the money when the occasion arose. He need not keep the money and establish that had the money in advance." 13. From the aforesaid decision it is clear that to prove himself ready and willing, a purchaser need not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. It is now well settled law that it is not necessary for a purchaser to keep the balance sale consideration either in cash or in bank account, but it is sufficient, if it is proved that the purchaser is capable of raising the balance sale consideration when the time for performance of the agreement of the sale arrives. Therefore, the authority submitted by the counsel for the respondent is not applicable to the present case on hands. The facts and circumstances of that case is entirely different from the present case. 14. In this case it is proved that the appellant was ready and willing to pay the balance amount. The respondent has not questioned the capacity of the appellant that he could not raise funds for sale consideration and he has not raised any plea that the appellant was not having sufficient means to meet out the sale consideration stipulated in the Ex.A.1 sale agreement. The respondent has not questioned the capacity of the appellant that he could not raise funds for sale consideration and he has not raised any plea that the appellant was not having sufficient means to meet out the sale consideration stipulated in the Ex.A.1 sale agreement. It is not necessary for the purchasers to keep the sale consideration either in cash or in bank account. It is sufficient if it is proved that purchaser is capable of paying sale consideration at the time for performance of agreement of sale arrives at. In this case the respondent has not questioned the means of the appellant that the appellant/plaintiff was not capable of raising funds to meet out the sale consideration. Therefore, the contention of the respondent that the appellant was not ready and willing to perform his part of the contract, due to the conduct of the respondent, he had not paid the balance sale consideration. Since the respondent has not questioned the capacity of the appellant to make the balance sale consideration, the trial Court has also failed to consider the fact and erroneously come to the conclusion that the appellant was not ready and willing to perform his part of contract. Under the above said circumstances, this court is of the firm view that the above said circumstances, this Court is of the firm view that the appellant is ready and willing to perform his part of contract. The reason given by the trial court in this regard is not valid either under law or on facts. Thus, the second point is answered in favour of the appellant/ plaintiff. Point No. 3 15. It is pertinent to note that in the sale agreement the deposit of title deeds in the bank has not been vividly stated and in the absence of that the respondent cannot say that the appellant knew on the date of agreement, the respondent entered into an agreement with the appellant only with a view for clearing the bank dues. Apart from that a perusal of Ex.p14./FIR would go to show that during the pendency of the above said suit, the respondent/defendant entered into an agreement with reference to the same suit property with one Abdul Ajeez for a sale consideration of Rs. 27,00,000/- and received Rs. 10,00,000/- as advance. Apart from that a perusal of Ex.p14./FIR would go to show that during the pendency of the above said suit, the respondent/defendant entered into an agreement with reference to the same suit property with one Abdul Ajeez for a sale consideration of Rs. 27,00,000/- and received Rs. 10,00,000/- as advance. After coming to know about this suit the vendor namely Abdul Ajeez filed complaint before the learned judicial magistrate, Thoothukdi, wherein, the learned Judicial Magistrate directed him to file a criminal complaint against the respondent. Pursuant to the same, a case was registered in SIPCOT Police Station, Thoothukudi in Cr. No.136 of 2010 for the offences punishable under Sections 420,468 and 471 of IPC. It shows that the respondent suppressed the fact of the suit filed by the appellant/plaintiff and entered into another agreement with the same property. Further a perusal of Ex.B1 and B2 notices given by the Tamil Nadu Mercantile Bank Limited, would go to show that the dues of the respondent/ defendant as on 31.3.2007 is Rs. 11,63,113.73/- and it shows that Rs. 8,00,000/- was paid to the Bank by the respondent after 31.03.2007. From the above it is clear that dues of the respondent as on 31.3.2007 with the Tamilnadu Mercantile Bank, is around Rs. 11,00,000/- and as already stated the appellant/ plaintiff paid a sum of Rs. 19,00,000/- to the respondent/defendant towards sale consideration. If at all the respondent/defendant is a genuine person, and he entered into an sale agreement with the appellant/plaintiff only in order to clear the bank dues be could have very well cleared the dues and got the title deeds. On the contrary without clearing the dues with the bank, even after receiving substantial amount from the appellant/plaintiff he entered into an another agreement with one Abdal Ajeez for the very same property as stated above. Further in the very same agreement sale consideration is fixed for only a sum of Rs.27,00,000/-, therefore, the contention regarding the worth of the property is more than one crore is also false. This all would go to show that the attitude of the respondent/ defendant is not good. Further in the very same agreement sale consideration is fixed for only a sum of Rs.27,00,000/-, therefore, the contention regarding the worth of the property is more than one crore is also false. This all would go to show that the attitude of the respondent/ defendant is not good. In this regard it is worthwhile to refer to the decision in P. Meenakshisundaram case (Cited Supra) in which one of us is a party (ASJ), wherein at paragraphs 22 and 23 it is held as follows:- "In 1994 AIR SCW 243, S.P. Chengalverayan (died) by Lrs. v. Jaganathan (died) by LRs. the Hon'ble Apex Court has observed as follows: "Property - grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood has no right to approach the Court. He should be summarily thrown out at any stage of litigation." 23. In the instant case, it has already been pointed out that even print to execution of Ex.A3, a suit has been instituted in original Suit No.40 of 1996 on the basis of mortgage created by first defendant in respect of the suit property. But, for the reasons best known to him schemingly, deliberately suppressed the existence of mortgage over the suit property and further stated in Ex.A3 to the effect that there is no encumbrance over the same. Therefore, the entire defence put forth on the side of the first defendant is purely based upon falsehood and as per the dictum given by the Hon'ble Apex Court the defence put forth by the first defendant in the present case can summarily be thrown out." 16. Therefore, in the present case also, as already stated the in the original sale agreement, the respondent has not disclosed the fact of deposit of title deeds in the bank and even after receiving considerable sale consideration from the appellant/plaintiff the respondent/ defendant has not cleared dues with the bank. On the contrary he entered into an agreement for sale in respect of the very same property with another person namely Abdul Ajeez. Appellant also made public notice vide Ex. A 13 paper publication. Therefore the respondent/defendant has not approached the courts with clean hands and suppressed the vital facts of the case. On the contrary he entered into an agreement for sale in respect of the very same property with another person namely Abdul Ajeez. Appellant also made public notice vide Ex. A 13 paper publication. Therefore the respondent/defendant has not approached the courts with clean hands and suppressed the vital facts of the case. Thus it is clear that the respondent was not ready with the original title deed and property is not free from encumbrance and only when the respondent/vendor complies with his part of the agreement of the sale, he can insist for the performance of the agreement of sale by the appellant/ purchaser. In view of the above reasons and in the light of the above referred decision the third point as answered against the respondent/ defendant. 17. For the foregoing reasons and in the light of the decisions referred above and the judgment and decree of the Trial Court and liable to be set aside and accordingly they are set aside. Consequently, connected miscellaneous petition is closed. 18. In fine, the appeal is allowed with cost and the judgment and decree passed by the trial Court in O.S. No. 3 of 2008 on the file of the Additional District Judge (Fast Track Court No. I) Thoothukudi, dated 02.09.2010, are set aside and the suit is decreed with cost. The respondent/ defendant is hereby directed to execute a registered sale deed in favour of the appellant/plaintiff with respect to the plaint schedule properties after receiving the balance sale consideration of Rs. 10,90,000/- (Rupees Ten Lakhs Ninety Thousand only) into the Trial Court (Jurisdiction Court) and there after the trial court is directed to execute a registered sale deed on behalf of the respondent/ defendant in favour of the appellant/ plaintiff at the cost of the appellant/ plaintiff in accordance with law without any further delay.