Chandran vs Vijayalakshmi

Challenge in this second appeal is made by the Plaintiff impugning the judgment and decree dated 18.11.2010 made in A.S.No.36 of 2010 on the file of the Sub Court, Nagapattinam reversing the judgment and decree dated 12.03.2010 made in O.S.No.472 of 2005 on the file of the District Munsif Court, Nagapattinam.

The suit has been laid by the plaintiff for specific performance.

According to the plaintiff, the defendant agreed to sell the suit property to him for a total sum of Rs.50,820/- and entered into a sale agreement on 18.07.2003 with reference to the same and received Rs.11,000/- as advance on the same day and as per the agreement entered into between the parties, the plaintiff should pay the balance sale consideration within three months and complete the sale consideration. According to the plaintiff, though he had been ready and willing to perform his part of the contract and obtain the sale deed, the defendant did not come forward to execute the document and consequently, the plaintiff issued a legal notice dated 14.12.2005 and as the claim of the plaintiff had been repudiated, the suit has been laid.

The defendant in his written statement has admitted the sale agreement and also the receipt of the advance amount. However, according to the defendant, though he had been ready to convey the property to the plaintiff on the receipt of the balance sale consideration, the plaintiff did not come forward to pay the balance amount within the time stipulated under the agreement and inasmuch as the defendant had contracted with the plaintiff to sell the property to perform the marriage of his daughter and on account of the failure of the plaintiff to perform his part of the contract within the time allowed under the agreement, the marriage of his daughter got stalled and also the defendant had been put to mental agony and sufferings and further, according to the defendant, only after the Government had raised the value of the suit property in question when acquisition proceedings were initiated, the plaintiff had chosen to issue the notice and therefore, it is stated that inasmuch the plaintiff had not come forward to perform his part of the contract in getting the sale deed, the plaintiff is not entitled to obtain the relief of specific performance.

Inasmuch as the plaintiff has laid the suit for specific performance, it is evident that the plaintiff has to establish his readiness and willingness to complete the sale transaction as stipulated under the agreement right from the date of the agreement till the culmination of the sale transaction. However, so far as this case is concerned, it could be seen that though time limit had been fixed for completing the sale transaction as three months under the sale agreement, the plaintiff has not moved his little finger to perform his part of the contract and get the sale deed executed from the defendant. Though the plaintiff would claim that he had been always ready and willing to perform his part of the contract, the same has been controverted by the defendant. It is for the plaintiff to establish the same by acceptable evidence. However, other than the oral assertion of PWs 1 & 2, no material is forthcoming on the side of the plaintiff to establish his readiness and willingness. For the first time, it could be seen that only on 14.12.2005, i.e. nearly two years after the sale agreement, the plaintiff has issued the legal notice calling upon the defendant to complete the sale transaction. However, inasmuch the plaintiff had not come forward to complete the sale transaction within the time stipulated under the sale agreement or within a reasonable time thereafter, it could be seen that the defendant had rightly repudiated the claim of the plaintiff by issuing a reply notice.

It is also found from the case of the defendant that only for the purpose of performing his daughter''s marriage, she had agreed to convey the suit property to the plaintiff. In such view of the matter, it is evidence that the parties have intended to complete the sale transaction within a particular period of time. It is therefore seen that time is agreed to be the essence of the contract. The position being so, it has not been explained by the plaintiff as to why he had delayed in paying the balance sale consideration to the defendant and get the sale deed executed from him.

It is found from the evidence adduced in the matter, after advent of Tsunami in the area, the Government had initiated acquisition proceedings of the various lands in the area for raising quarters for the Tsunami victims and accordingly, fixed higher value for the properties concerned, which is found to be more than the value fixed under the sale agreement. Only, on the above said development, it is found that the plaintiff has chosen to issue the legal notice during the fag end of 2005 calling upon the defendant to complete the sale transaction. Equally, inasmuch as the value of the suit property had enhanced by that time, the defendant had refused to accede to the request of the plaintiff and accordingly, it could be seen that at that time when the plaintiff made the legal demand, the value of the property had considerably raised. In such view of the matter, nothing could be faulted on the above stand of the defendant in refusing to accede to the request of the plaintiff made in the legal notice dated 14.12.2005.

Though the plaintiff would establish the solvency on his part to complete the sale consideration by producing his pass book marked as Ex.A5 during the first appeal proceedings, on that ground alone, we cannot presume or infer that the plaintiff had been always ready and willing to perform his part of the contract from the inception of the sale agreement. Accordingly, it could be seen that the courts below have rightly held that the plaintiff has miserably failed to establish his readiness and willingness to perform his part of the contract and that it is only the defendant, who is at fault. In such view of the matter, the findings of the courts below in rejecting the plaintiff''s case cannot be interfered in any manner.

It is found that the first appellate court has chosen to grant the relief of refund of the advance amount with interest paid by the plaintiff to the defendant. No exception could be taken to the same considering the facts and circumstances of the case.

The counsel for the defendants, in support of his contention, relied upon the decisions reported in 2014 (1) CTC 603 (Muthukrishna Gounder Vs. Gowri and others), (2012) 2 Supreme Court Cases 300, 2016-I-MCC - 909 (M.Johnson Vs. E.Pushpavalli) and 1997 (1) CTC 628 (K.S.Vidyanadam and others Vs. Vairavan). In the light of the above discussions, no substantial question of law is found to be involved in this second appeal. Accordingly, the second appeal fails and the same is dismissed. No costs.