C. Balakrishnan vs Francis Rosaria Saraswathi Balakrishnan

S. Palanivelu, J.—The following are the averments contained in the Plaint filed in O.S. No. 102 of 2006 :

1(a). 1st Defendant approached the Plaintiff to sell the property and a sum of Rs. 1001.- was paid as token advance on 18.11.2002 and the agreement of sale was reduced in writing on 18.12.2002, that the sale price was fixed at Rs. 1,65,000/- per cent and the total area comes to 5 cents whereby the total sale prize comes to Rs. 8,25,000/-, that a sum of Rs. 50,000/- was paid to the 1st Defendant at the time of reducing in writing on 18.12.2002 and a sum of Rs. 50,000/- by cheque dated 18.12.2002 in favour of the 2nd Defendant who is the wife of the 1st Defendant and that a total sum of Rs. 1,01,001/- has been paid as advance for the sale of the suit property.

1(b). 1st Defendant has leased the suit property to a tenant who is running a workshop in the suit property, that it has been agreed that the suit property would be sold without encumbrances and the 1st Defendant agreed to vacate the Tenant and give possession of the suit property at the time of sale, that the 1st Defendant did not do so and he was always evading the execution and hence the Plaintiff was constrained to issue notice dated 20.1.2006 requesting to come to the Registrar Office to execute the Sale Deed, that the Plaintiff is always ready and willing to purchase the property and he has deposited the balance sale price in Post. Office, that the period of limitation ends on 17.3.2006 and the Suit for the claim is well within time and that the Suit may be decreed as prayed for.

In the Written Statement filed by the 1st Defendant, adopted by the 2nd Defendant, it is averred as follows :

2(a). It is false to state that the 1st Defendant. approached the Plaintiff to sell the property, the Plaintiff himself approached the Defendant and requested them to sell the property to him, that the Defendant received the total advance amount of Rs. 1,01,001/- that he leased out the property to a Tenant as per agreement. when the Plaintiff complete the sale, the duty of the Defendant to vacate the Tenant and handover the vacant possession to the Plaintiff.

2(b). As per the agreement the Plaintiff had to hand over the balance amount and complete the sale within three months i.e., on or before 18.3.2003 but the Plaintiff did not do so, that the Plaintiff issued his first lawyer notice on 13.2.2004 and asked the Defendant to complete the sale, that the Defendant approached the Plaintiff to handover the balance and complete the sale, but the Plaintiff did not do so, that the Plaintiff availed loan from his Company and hand over the advance, that as he was terminated from the Company, he has no other source to complete the sale, that the Defendant shifted his house, it is also intimated to the Plaintiff, but the Plaintiff issued 2nd notice and Plaint address to wind the case in illegal way, that the Defendant''s wife is unnecessary added as a party in the Suit and that the Suit may be dismissed in limine with cost..

After scrutiny of the evidence on record the learned Fast. Track Court III, Coimbatore, has decreed the Suit. for Specific Performance of Contract. He has also found that the Suit is not barred by limitation and that the Plaintiff has been ready and willing to perform his part of contract. Hence the Defendant is before this Court.

Following points have arisen for consideration of this Appeal :

Whether the Plaintiff has been ready and willing to perform his part of contract ?

Whether the Plaintiff is entitled for alteranate relief as prayed for in the Plaint ?

To what relief are the parties entitled to?

Point No.1

Ex.A1 dated 18.12.2002 is Sale Agreement entered into between the parties by means of which the Defendant. agreed to sell his property with an extent of 5 cents to the Plaintiff for a sale consideration of Rs. 1,65,000/- per cent. On the date of agreement a stun of Rs. 1001 was paid as advance. Later on, a sum of Rs. 1,00,000/- was also paid as advance on 2 occasions at Rs. 50,000/- each. Hence, the Defendant received an advance of Rs. 1,01,001/- as advance. Period is stipulated in the agreement for execution of the Sale Deed is three months. It is also stipulated therein that the Defendant has to get relevant documents for sale from the Municipal Corporation and he has also to vacate the Tenants within two months.

Even though. the Plaintiff sent. notice in Ex.B1 on 13.2.2004 calling for the Defendant to execute the Sale Deed in his favour, he did not pursue it. He has not mentioned about this notice in his Ex. A2 notice dated 20.1.2006 nor had he produced copy of the notice along with the Plaint and there is no pleadings in the Plaint. He has pleaded cause of action for the Suit on the strength of Ex.A2 alone. In this context, we have to see whether the Plaintiff has conic to the Court with clean hands.

The First Defendant has produced a Xerox copy of the notice issued by the Plaintiff on 13.2.2004. It has been marked as Ex.B1. Significant it is to state that the Plaintiff in his cross-examination has categorically admitted Ex.B.1 notice. He has stated M. cross examination that on 13.2.2004 he sent notice to the First Defendant through his Advocate Mr. Antony Sahaya Kumar, which is Ex.B1, in which he has called upon the Defendant to execute the Sale Deed within one week in default. he would rush to the Court for specific performance of contract. However, he did not file any Suit.

For the said notice the First Defendant sent a reply notice on 15.3.2004. But he has not produced the copy of notice. However, he is able to produce postal receipt for sending the reply notice by registered post which is marked as Ex.B2 which is dated 16.3.2004. The learned Counsel for the Plaintiff Mr. J. Anthony Sahaya Kumar received the said notice and the postal acknowledgment card with his signature has been marked as Ex.B3. The Plaintiff has also admitted the factum of receipt of reply notice. Ex.B4 is the notice sent by the First Defendant to the Plaintiff on 28.4.2005 in which he has stated that he has been always ready and willing to sell the property. But. the Plaintiff has not come forward to purchase the property. He has alleged that the Plaintiff had obtained his signature by threatening him in Police Station and in this regard he has called upon to return all the signed unfilled papers. It is worthwhile to note that the First Defendant has not mentioned anything as if he is refusing to execute the Sale Deed.

In the proof Affidavit filed for chief-examination of the Plaintiff he has affirmed that in the earlier part of cross-examination lie has stated that he did not serve notice calling upon the Defendant to execute the Sale Deed by informing him that he was ready to pay the balance sale consideration. Further, he would state that lie could not recollect whether the First Defendant sent a notice on 28.4.2005 through his Advocate.

The above said factors would indicate that. the Plaintiff has not come to the Court with clean hands. He neither stated the fact of sending notice under Ex.B1 to the First Defendant nor had he pleaded the same in the Plaint. Since the grant of decree for specific performance is equitable one, the Plaintiff is supposed to come to the Court with clean hands. If it is found. that he has consciously suppressed material facts, then he cannot get such equitable relief

Another important circumstance which show that the Plaintiff was not ready and willing to perform his part of contract by not possessing sufficient. means as revealed by Ex.A4. Ex. A4 is the summary of deposits (MIS) attested by Head Surgeon of Coimbatore Medical College Hospital. Even though it is described as deposit maintained by Plaintiff in the post office, it does not bear necessary particulars. The certified copy has not been issued by the post office. By no stretch of imagination, it could be stated that the original of Ex.A.4 was issued b3 concerned authority. There is no point in placing reliance upon the entries contained. in Ex.A4. However, even based upon entries in Ex.A4, the Court can come to the conclusion that the Plaintiff was not ready and willing at the time of issuing Ex.B1 notice. In Ex.A4 particulars, the relevant entries of deposit are the dates 13.1.2004 and 31.3.2004. Between these two dates there was no deposit. As per this account on 13.2.2004 a sum of Rs. 3,99,000/- was available. So it is manifest that as on 13.2.2004 there was no sufficient deposit in the account of the Plaintiff to meet the entire sale consideration.

As far as Ex. A2 notice is concerned, it was not received by the First Defendant. The returned notice is Ex.B3. It is stated by the Defendant that the notice was served to the old address of the First Defendant knowing full well that he shifted his house. But when the address of the First Defendant in. Ex.B.3 and the Plaint are same, notice could not be served upon the First Defendant.

In view of the above said circumstances, it is to be held that. the Plaintiff has not come .to the Court with clean hands and he has not been ready and willing to perform his part of contract.

The learned Counsel for the First Respondent Mr. Kumaradevan would contend that even if the Court feels that the claim put-forth by the Plaintiff is false one. if it is found that such a false claim set up by the Plaintiff is immaterial and it does not affect the main case. the Court shall not refuse the relief, as observed by the Division Bench of this Court. reported in T.R.K. Saraswathy v. Kandasamy and others, 2011 (4) TLNI 393 (Civil) (at page 425). This proposition has been referred to from an earlier Division Bench decision of this Court referred in Pachiappan and others v. S.P. Koon Mari, 1996 (2) LW 1, rendered by His Lordship Mr. Justice M. Srinivasan (as his Lordship then was). As far as the facts of the case are concerned, this Court does not feel that there is a false claim lodged by the Plaintiff.

Much was said about the readiness and willingness on the part of the Plaintiff to come forward to get the sale executed. As early as on 13.2.2004, the Plaintiff had sent a notice in Ex.B1 requiring the Defendant to execute the Sale Deed, however he did not Pursue it and take any action on the basis of this notice. Further, as adverted to supra, he did not mention about this notice in his Ex.A2 notice dated 20.1.2006 nor had he incorporated the fact in the Plaint. Hence, this Court has rendered a finding that the Plaintiff is guilty of suppression of material facts. In this juncture, it. is to be observed that the Plaintiff had been inactive from 13.2.2004 till 20.1.2006 i.e., nearly 23 months.

The learned Counsel for the Appellant Mr. J. Shanmuga Sunadara Babu would contend that the Plaintiff has been consciously remaining silent for over 23 months after receiving of Ex. B1 notice and he came with Ex.A2 as if he is claiming specific peformance of contract from the Defendant afresh and such attitude would indicate that the Plaintiff had not been ready and willing to perform his part of contract. In support of his contention he cited the Judgment of mine reported in S. Gananatha Perumal v. S. Valliappan, 2010 (6) CTC 95, wherein I have observed that an unexplained delay of 2 years and 10 months from the date of Suit notice till the date of filing of the Suit, along with other circumstances would show that the Plaintiff had not been ready and willing to perform his part of contract. In this case on hand the Plaintiff was keeping quiet. for 23 months, which period remains unexplained by him, would candidly establish a fact of intention from the part of the Plaintiff that he was not ready and willing to perform his part of contract.

Yet. another circumstance prevailing in this case as dealt with supra, which would divulge the conduct of the Plaintiff is that production of Ex.A4 allegedly showing his deposit in the post recurring account. This Court does not place reliance upon this document. Even if it is pleaded, the Plaintiff as on 13.2.2004, as per Ex.A4 was having deposit of Rs. 3,99,000/- But the agreed sale price for the entire extent of property is Rs. 8,65,000/-. Hence, the deposit available in the above said account. was inadequate to satisfy or meet the sale price. This instance would demonstrate that he was not ready and willing to perform his part of contract on the date of Ex.A1 This Court is of the view that since only the Plaintiff was having no sufficient funds for the sale price on the date of Ex. A1, he did not initiate legal action against the Plaintiff for specific performance of contract. In this regard, it has to be also necessarily observed, that the Plaintiff was not. ready and willing for execution of the Sale Deed.

The learned Counsel for the Defendant would rely upon a Division Bench decision of this Court reported in Rajaram Gopalakrishnan v. Kumudam and another, 1999 (1) CTC 661, wherein it is held thus :

"16. The next point to be considered is with regard to readiness and willingness to perform the contract. This can be considered along with the other point as to whether Plaintiff was not in a position to mobilise the necessary funds. The Counsel for the Appellant submitted that the Plaintiff was not at all ready and willing to perform her part of the contract and she was not in a position to mobilise funds for completing the sale transaction and there are ladies on the part of the Plaintiff and so, the Plaintiff is not entitled to specific performance of the contract. The Counsel for the Appellant in effect argued that the Plaintiff did not. have the financial capacity to complete the sale transaction and she had to depend upon L.I.C. and Kilpauk Benefit Fund Society and so, the Plaintiff was not ready and willing to perform the contract. He further argued that the Plaintiff had the intention to mortgage the Title Deeds and get loan for payment to conclude the sale transaction and this amounts to variation of the contract under Ex.P1. He submitted that the Plaintiff had approached one Fatechand for obtaining loan for completing the sale and so, there was no readiness on the part of the Plaintiff to complete the sale transaction."

This Court has already narrated the events and instances, which portray the conduct on the part of the Plaintiff that he was not ready and willing at. any point of time. Hence, the circumstances existing in the above case are similar to the facts of the present case on hand.

The learned Counsel for the Appellant also garnered support from a decision of this Court in S. Narayanappa v. Sampangi Ramayya and others, 2010 (3) CTC 205, wherein R. S. Ranianathan, S. has held on the basis of judgment of the Supreme Court that the compliance of readiness and willingness has to be in spirit and substance and not in letter or form and if the allegations in the Plaint as well as evidence and the other circumstances lead to the conclusion that the Plaintiff was not ready and willing to perform his part of the contract, even though lie filed the Suit within the period of limitation.

Following the proposition laid down by the Honourable Supreme Court and the Division Bench of this Court, when the facts are put to careful scrutiny, it is seen that the Plaintiff had not been ready and willing to perform his part of contract. As stated already, since the relief of Specific Performance of contract is an equitable relief, which should also be equitable to other side. As the Plaintiff had not been ready and willing to perform his part of contract at any point of time in the expiry of fire period stipulated in Ex.A.2. Hence, it is held that the Plaintiff had not been ready and willing to perform his part of contract. This point is answered as indicated.

Point No. 2

This Court has reached a conclusion that on account of his. unwillingness on the part of Plaintiff, he has to be non-suited for the relief However, the receipt of advance of Rs. 1,00,001 has been admitted categorically in the Written Statement. Hence, the Plaintiff is entitled to get the amount with interest at the rate of 12% from the date of payment till the date of filing of the Suit and 6% from the date of filing till its realisation This point is answered accordingly.

Point No. 3

An overhaul of circumstances would show that the Plaintiff was not ready and willing to perform his part of contract and lie is not entitled for the relief of specific performance of contract. However. he is entitled to get interest for the advance amount as detailed in point No.2. In these circumstances, the Appeal has to be allowed in part as per the above conclusion. This point is answered as above.

In fine, the Appeal is allowed in part setting aside the Judgment of the Court below with reference to the relief of specific performance of contract prayed for by the Plaintiff. Original Suit is dismissed without cost as far as the Specific Performance of Contract is concerned The Plaintiff is entitled for the refund of advance of Rs. 1,00,001/- paid, along with interest at the rate of 1 2% p a. from the date of execution of Ex.Al till the date of filing of the Suit and he is also entitled for interest at the rate of 6%p a. from the date of tiling of the Suit till the date of realisation. No costs.