Deivanai Ammal vs Jeyalakshmi

Mr. R. Karuppiah, J.—The Appellant / defendant in the Suit filed this Appeal Suit as against the judgment and decree in O.S.No.205 of 1989, on the file of the Sub Court, Tenkasi, dated 10.11.1993.

The respondent / plaintiff has filed the Suit directing the appellant / defendant to execute a register sale deed, in favour of the plaintiff, as per the agreement for sale, dated 17.06.1986 in respect of suit schedule properties and for costs.

Briefly the case of the respondent / plaintiff stated in the plaint is that the Suit properties were originally belonged to one Muthiah Reddiar, as per compromise decree in O.S.No.64 of 1964, on the file of Sub Court, Tuticorin. On 31.03.1966, the said Muthiah Reddiar executed a registered settlement deed in favour of appellant / defendant. As per the settlement, the settlor and settlee should enjoy the properties jointly till the life time of settlor and on his death, the properties should go to the settlee viz., the appellant / defendant absolutely. Accordingly, both the settlor and settlee jointly enjoyed the properties, till settlor''s death on 04.05.1984 and after his death, the appellant / defendant got the properties absolutely. During the life time of Muthia Reddiar, both the above said Muthia Rediar and the appellant / defendant entered into agreement for sale with the respondent / plaintiff on 06.04.1984 agreed to sell the suit properties for a sum of Rs. 60,000/-. On the date of agreement, received a sum of Rs.10,000/- from the respondent / plaintiff. and the balance sale consideration of Rs.50,000/- should be paid and sale completed on or before 06.04.1984.

It is also averred in the plaint that Muthia Rediar died on 04.05.1984 and the appellant / defendant become absolute owner of the suit properties. Thereafter, on 07.05.1984, the appellant / defendant and respondent / plaintiff entered into a fresh agreement for sale by acknowledging and admitting the first agreement for sale, dated 06.04.1984 and another sum of Rs.10,000/- received from the respondent / plaintiff and agreed to complete the sale on or before 06.05.1986 and also the appellant/defendant delivered possession of the suit properties to the respondent/plaintiff and the respondent/plaintiff is in possession and enjoyment of the properties. The respondent/plaintiff also ready and willing to perform her part of contract and also having sufficient funds to pay the balance consideration of Rs.40,000/- and registration charges. Whenever the respondent/plaintiff pressed the appellant/defendant to complete the sale, the appellant/defendant evaded. Further, in terms of second sale agreement, the appellant/defendant has to discharge the loan due to Land Development Bank. But she has not discharged the said loan. On 18.03.1986 the respondent/plaintiff sent a registered notice to the appellant/defendant to complete the sale after discharging the Land Development Bank Loan. On 15.04.1986, the appellant/defendant sent reply notice stating that there is no loan due on the Land Development Bank but admitted the agreement for sale. So the respondent/plaintiff filed a suit on the file of vacation Court and was numbered as O.S.No.215 of 1986 and latter the same was transferred to Subordinate Court, Tenkasi and there was a Mediation between the respondent/plaintiff and appellant/defendant and accordingly, another agreement for sale was made and the same was written on 17.06.1986. As per the third agreement for sale, Rs.7500/- had been paid by the respondent/plaintiff to the appellant/defendant in order to discharge the loan obtained from the Land Development Bank and the Suit was withdrawn by the respondent/plaintiff accordingly and the balance sale consideration has to be paid on or before 16.06.1988 by the respondent/plaintiff to the appellant/defendant. The respondent/plaintiff all along ready and willing to complete the sale.

It is also averred in the plaint that the respondent/plaintiff came to understand there was a Civil Suit in O.S.NO.174 of 1984 was pending between the appellant/defendant and one Murugan, on the file of District Munsif Court, Sankaran Koil in respect of schedule properties. But it is not disclosed to the respondent/plaintiff by the appellant/defendant. Further, the loan obtained from the Land Development Bank also has not been discharged by the appellant/defendant and concealing the above said facts, the appellant / defendant sent a legal notice on 25.08.1988 to the respondent/plaintiff to pay the sale consideration amount of Rs.32,500/-. The respondent/plaintiff sent reply notice explained her readiness on 30.08.1988. The appellant/defendant also sent another reminder notice on 08.09.1988 with false averments. The appellant/defendant has not produced neither any discharge certificate from the Land Development Bank and also not produced any documents to prove the disposal of the above said Suit in O.S.No.174 of 1984. The appellant/defendant represented the respondent/plaintiff as there is no encumbrance in the schedule properties and the appellant/defendant has paid the loan amount due to the Land Development Bank and the said suit has also been disposed. But when the respondent/plaintiff got Encumbrance Certificate it is seen that the loan raised from the Land Development Bank was not cleared and the legal proceedings also pending. So, the respondent/plaintiff once again sent a legal notice to the defendant on 02.11.1989 and the appellant/defendant sent reply notice on 07.11.1989 with false averments. Therefore, the respondent/plaintiff filed this Suit for specific performance of the contract, as per third agreement for sale, dated 17.06.1986.

The appellant / defendant has filed written statement in which it is admitted that the appellant/defendant is the owner of the suit properties and also admitted that the alleged three agreements for sale, dated 06.04.1984, 07.05.1984 and 17.06.1986. In the written statement it is stated that the respondent/plaintiff is not ready and willing to perform her part of the contract and in fact, the respondent/plaintiff has no means to pay the balance consideration and the appellant/defendant has suppressed the above said facts. If really the respondent/plaintiff is willing to purchase the properties immediately after disposal of O.S.No.215 of 1986, necessary steps have to be taken to execute the sale deed. But till the legal notice issued by the appellant/defendant on 08.09.1988, the respondent/plaintiff has not at all taken any steps to execute sale deed but sent false reply. Further, two reasons stated in the plaint are not true. The contention that the respondent/plaintiff is not aware of the proceedings in O.S.No.174 of 1984 is false, since the respondent/plaintiff filed a Suit in O.S.No.215 of 1986 in which the respondent/plaintiff impleaded as party in the above said suit and this respondent/plaintiff has aware about the proceedings and also aware that the respondent/plaintiff in O.S.No.174 of 1984 has no title in the suit properties. In fact, the appellant/defendant had discharged the above said Bank loan on 27.06.1987 itself and the respondent/plaintiff has fully aware of the above said fact. Further in the agreement for sale itself it is averred that the above said loan should be retained in the sale deed and therefore, the contention of the respondent/plaintiff is that, since the above said loan was not discharged and on that ground, the sale deed could not be executed, cannot be accepted. Further it is not true that the respondent/plaintiff has always ready and willing to perform her part of contract and she has sufficient means to pay the balance consideration. In agreement for sale itself, two years time fixed for execution of sale deed and time is essence of contract. Further, the respondent/plaintiff is not entitled to return back the advance amount paid by the respondent/plaintiff, since the respondent/plaintiff failed to obtain the sale deed within the time and also she has no means to pay the balance consideration, the respondent/plaintiff is not entitled to the relief of specific performance.

The trial Court, on perusal of pleadings, after hearing both sides, framed the following issues for consideration:-

Whether the plaintiff has no means to pay the balance consideration, as per the Agreement of sale?

Whether the plaintiff is ready and willing to perform her part of contract as per agreement of sale is correct?

Whether it is true that the defendant has discharged the loan obtained by her from the Land Development Bank?

4.Whether the plaintiff is aware the fact regarding the Suit in O.S.No.174 of 1984?

Whether the defendant is to execute a register sale deed, as per the agreement?

To what relief the plaintiff is entitled to?

Before the trial Court on the side of the respondent/plaintiff examined one witness as P.W.1 and marked 10 documents as Exs.A1 to A10 and on the side of the appellant/defendant examined 2 witnesses as D.Ws. 1 and 2 and marked 5 documents as Exs.D1 to D5.

The trial Judge has considered the above said oral and documentary evidence adduced on both sides and decreed the suit as prayed for by the respondent/plaintiff. Aggrieved over the above said decree and judgment passed by the trial Court, the appellant/defendant filed this Appeal Suit.

The learned counsel appearing for the appellant/defendant submitted that the relief under Specific Relief Act for specific performance of contract is an equitable relief. In the instant case, the respondent/plaintiff has no means to pay the balance sale consideration and the respondent/plaintiff miserably failed to prove the above said capacity to pay the balance sale consideration by adducing reliable oral and documentary evidence. Further the learned counsel submitted that the respondent/plaintiff has not at all ready and willing to perform her part of contract and therefore, the respondent/plaintiff is not entitled to the relief sought for in the plaint. Further, the learned counsel appearing for the appellant/defendant submitted that the trial Court has failed to consider the fact that there was no debt payable to the Melaneethanallur Co-operative Bank, as per Ex.P4 and even if there was any such debt, the sale could be executed by reserving the amount as per the agreement. Further, the trial Court has wrongly stated as if there was two debts to be discharged and therefore, the trial Court has failed to appreciate the contents of the agreement for sale properly. Further, the learned counsel submitted that the Suit in O.S.No.174 of 1984 was dismissed for default and the respondent/plaintiff is well aware of the above said fact and therefore, the respondent/plaintiff is not entitled to the relief of specific performance, since the plaintiff has miserably failed to prove her ready and willingness to perform on her part of contract.

Per contra, the learned counsel appearing for the respondent/plaintiff mainly contended that, as per agreement for sale, the appellant/defendant has to discharge the loan obtained from the Land Development Bank and therefore, the sale deed could not be registered by paying the sale consideration. It is further submitted that, since the Suit in O.S.No.174 of 1986 filed by one Murugan was pending, the sale deed could not be obtained from the appellant/defendant by paying the sale consideration. Further, the learned counsel appearing for the respondent/plaintiff submitted that the respondent/plaintiff has always ready and willing to perform her part of contract and also she has sufficient means to pay the balance sale consideration and the time is not essence of contract and therefore, the respondent/plaintiff is entitled to the relief as sought for in the plaint.

Points for consideration in this appeal are:-

Whether the respondent/plaintiff has proved the fact that she is always ready and willing to perform her part of contract?

Whether the respondent/plaintiff has proved that she always having means to pay the balance sale consideration as per agreements for sale?

Whether the respondent / plaintiff is entitled to the relief of specific performance as prayed for in the plaint.

Whether the appeal is to be allowed?

In this case, the admitted facts are that the suit properties originally belonged to one Muthia Reddiar and as per Ex.D1, Settlement Deed, both Muthia Reddiar and the appellant/defendant are jointly entitled to the suit properties till the life time of Muthia Reddiar and after the death of Muthia Reddiar, the appellant/defendant is entitled to absolute owner of the suit properties. It is also not in dispute that, in the meantime i.e., during the life time of Muthia Reddiar, both Muthia Reddiar and the appellant/defendant entered into Ex.A1 agreement for sale with the respondent/plaintiff on 06.04.1984 agreed to sell the suit properties for a sum of Rs.60,000/- in favour of the respondent/plaintiff and on that date, Muthia Reddiar and appellant/defendant received a sum of Rs.10,000/- from the respondent/plaintiff as part sale consideration and the balance sale consideration has to be paid by the respondent/plaintiff on or before 06.04.1984. After the above said Ex.A1 agreement for sale, Muthia Reddiar died on 04.05.1984 and the appellant/defendant become absolute owner of the suit properties. On 07.04.1984, the respondent/plaintiff and appellant/defendant entered into a fresh agreement for sale, Ex.A2 in which the appellant/defendant agreed to sell the suit properties to the respondent/plaintiff and received another sum of Rs.10,000/- as part sale consideration and agreed to complete the sale on or before 06.05.1986 and also delivered the possession to the respondent/plaintiff.

One Murugan filed a Suit in O.S.No.174 of 1984 on the file of the District Munsif Court, Sankarankoil, as against the respondent/plaintiff and appellant/defendant and the above said suit was pending. After that, this respondent/plaintiff has filed a suit in O.S.No.215 of 1986 on the file of Vacation Civil Court and the same was transferred to Sub Court and renumbered as O.S.No.55 of 1986. During pendency of the above said suit, both parties settled the matter and as per the settlement, the above said suit was withdrawn by this respondent/plaintiff and entered into third agreement for sale i.e., Ex.A3, dated 17.06.1986. On the date of above said agreement for sale, the appellant/defendant has received a sum of Rs. 7500/-, as balance sale consideration and the period for completion of the sale deed fixed as two years. On the basis of the above said third agreement for sale, the respondent/plaintiff has filed this suit on 7th December 1989 seeking for the relief of specific performance of the above said third agreement for sale, dated 17.06.1986. All the above said facts are not in dispute.

The learned counsel appearing for the appellant/defendant has mainly contended that the respondent/plaintiff has not at all ready and willing to perform her part of contract from the date of Ex.A1, agreement for sale, till the date of Suit and also the respondent/plaintiff has no means to pay the balance sale consideration and therefore, the respondent/plaintiff is not entitled to the relief of specific performance, as prayed for in the suit.

The learned counsel appearing for the respondent/plaintiff submitted that execution of sale could not be effected only on the ground that the appellant/defendant has not discharged the loan obtained from the Land Development Bank and also the appellant/defendant failed to produce the documents to show that the suit filed by one Murugan was dismissed and therefore, the delay has been occurred. Further, the learned counsel for the respondent/plaintiff submitted that the respondent/plaintiff is always ready and willing to perform her part of contract and also having sufficient means to pay the balance sale consideration and the time is not essence of contract and therefore, the respondent/plaintiff is entitled to the relief, as sought for in the plaint.

In the instant case, both sides admitted the execution of all the three agreements for sale i.e., Exs.A1 to A3 in respect of the suit properties. The main question has to be decided in this Appeal Suit is whether the respondent/plaintiff is always ready and willing to perform her part of contract and also having sufficient means to pay the balance consideration from the date of agreement to till the date of filing the suit.

Admittedly, Ex.A1, agreement for sale, executed between the parties on 06.04.1984 in which the periods for execution of sale was fixed as two years. But, admittedly, one of the executor of the sale agreement viz.,Muthia Reddiar was died on 04.05.1984 and after that on 07.05.1984 the second agreement for sale i.e., Ex.A2 was executed between the respondent/plaintiff and the appellant/defendant and the period for execution of sale was fixed as two years i.e., 06.05.1986. A perusal of the above said Ex.A2, second agreement for sale reveals that in the agreement itself it is stated that the loan amount due in Land Development Bank has to be retained by the respondent/plaintiff and the balance has to be paid to the appellant/defendant and obtained sale deed from the appellant/defendant by paying the balance consideration. As rightly pointed out by the learned counsel for the appellant/defendant, the respondent/plaintiff has not at all given any reason why such a long period of two years given for execution of sale deed even though the appellant/defendant undertook to pay the bank loan and agreed to obtain the sale deed by paying balance sale consideration after deducting the loan amount.

A perusal of Ex.A3, third agreement for sale reveals that the above said agreement entered into between the parties on 17.06.1986 and the period of execution of sale deed was fixed as two years i.e.16.06.1988. The respondent/plaintiff has not at all given any reason why such a long period of two years has been given for execution of sale deed. Admittedly, the date of agreement for sale deed Ex.A3 executed on 17.06.1986. The two years period prescribed for execution of sale deed expires on 16.06.1988. It is not in dispute that the respondent/plaintiff filed this Suit only on 07.11.1989. Therefore, this Suit is not filed by the respondent/plaintiff within the period of two years prescribed in Ex.A3 agreement for sale.

The case of the appellant/defendant is that the respondent / plaintiff has not at all ready and willing to perform her part of contract from the date of agreement till the date of plaint and also she had no means to pay the balance sale consideration and therefore, the respondent/plaintiff is not entitled to the relief sought for in the suit. In the above said circumstances, the respondent/plaintiff has to prove the fact that the respondent/plaintiff is always ready and willing to perform her part of contract and also should prove that she has sufficient means to pay the balance sale consideration.

With regard to contention regarding sufficient means to pay the balance sale consideration is concerned, admittedly, the respondent/plaintiff has not at all produced any documents to prove that the balance sale consideration was always available with her. It is also admitted by both sides that the respondent/plaintiff filed earlier suit in O.S.No.215 of 1986 for specific performance of contract, as per Ex.A2, agreement for sale. At that time, the respondent/plaintiff has not at all deposited the balance sale consideration before the trial Court or she has not produced any documents to prove that she has having sufficient means to pay the balance sale consideration at the time of filing the above said suit. The respondent/plaintiff at the time of oral evidence, without any pleadings, has deposed before the trial Court that respondent/plaintiff having Rs.60,000/- and deposited the above said amount in Bank and also deposed that she can produce the passbook to prove the same. In spite of denying the capacity to pay the balance consideration even two years prior to notice and reply notice issued by the appellant/defendant till filing the suit, the respondent/plaintiff has not produced the above said alleged Bank Passbook. A perusal of Ex.A4, notice issued by the appellant / defendant on 25.08.1988 itself it is clearly stated that the respondent/plaintiff has no means to pay the balance sale consideration. The plaintiff has sent reply notice Ex.A5 to the above said notice in which it is not specifically stated that the balance consideration was available with Bank as deposed before this Court. After the above said notice, again the appellant/defendant has sent Ex.A6, rejoinder on 08.09.1988, in which it is clearly stated that the respondent/plaintiff has no means to pay the balance sale consideration. Further in Ex.A10 notice issued by the appellant/defendant, dated 07.09.1989 also the appellant/defendant has specifically stated that the respondent/plaintiff has no means to pay the balance sale consideration. Therefore, the defendant has continuously contended that the respondent/plaintiff has no means to pay the balance sale consideration even two years prescribed in the agreement for sale.

In the above said circumstances, the respondent / plaintiff ought to have filed the relevant documents, particularly, the alleged bank pass book, to prove the means to pay the balance sale consideration. But in the instant case, the respondent/plaintiff has miserably failed to prove the above said fact. As rightly pointed out by the learned counsel for the appellant/defendant, only for the reason that the appellant/defendant has no means to pay the balance consideration, such a long period of two years fixed for payment of sale consideration and execution of sale deed.

The learned counsel appearing for the respondent/plaintiff submitted that the respondent/plaintiff has deposited the balance consideration immediately after filing this present suit and therefore, it proves that she has having sufficient means to pay the balance sale consideration. Admittedly, the respondent/plaintiff has not at all paid the balance sale consideration in the previous suit filed by her for specific performance of Ex.A2, agreement for sale in O.S.No.55 of 1986. No reason has been stated for not depositing the balance sale consideration in the previous suit. Therefore, considering the over all circumstances and the oral and documentary evidence adduced on either side the respondent/plaintiff has not proved sufficient means to pay the balance sale consideration from the date of agreement for sale till the date of suit. The trial Court has not at all considered the above said material fact regarding the means to pay the balance sale consideration, as rightly contended by the learned counsel for the appellant/defendant.

24.The next main contention of the appellant/defendant is that the respondent/plaintiff has not at all ready and willing to pay the balance sale consideration and obtained sale deed and further the respondent / plaintiff has not all filed the suit within the period prescribed for execution of sale deed in Ex.A3 and the time is essence of contract and therefore, the respondent/plaintiff has not entitled to the discretionary relief sought for in this suit.

As already discussed, Ex.A3 agreement for sale entered into between the parties on 17.06.1986. This suit was filed by the respondent/plaintiff on 07.11.1989. The contention of the respondent/plaintiff for delay in filing the suit is that, as per agreement the appellant/defendant has to discharge the Land Development Bank loan and also the appellant/defendant has to prove the case filed by one Murugan viz., O.S.No.174/1984 was disposed of and therefore, the sale deed could not be executed within the period of two years prescribed in Ex.A3, agreement for sale.

A careful perusal of Ex.A3 agreement reveal that no such condition stated in the agreement that the appellant/defendant has to produce the documents to prove the dismissal of O.S.No.174 of 1984. Except interested testimony, of P.W.1, no other witnesses to prove that the appellant/defendant has undertook to produce the documents to prove the disposal of the above said suit. The respondent/plaintiff has not all examined any witnesses from the alleged mediators.

Per contra, on the side of the appellant/defendant has specifically pleaded in the written statement itself that the above said suit was disposed of and the above said fact was intimated to the respondent/plaintiff even in the year 1988. But in spite of it, the respondent/plaintiff has falsely contended that only due to non-production of documents, she is unable to obtain the sale deed. To prove the above said fact i.e., that the above said Suit in O.S.NO.174 of 1984 was dismissed, the appellant/defendant has filed Ex.B5 copy of suit register. Further, Ex.A4 legal notice issued by appellant/defendant, dated 25.08.1988 to the respondent/plaintiff, for that the respondent/plaintiff has sent reply notice Ex.A5 on 30.08.1988 in which it is stated, as if the appellant/defendant undertook to produce the documents to prove the disposal of the suit. The appellant/respondent sent Ex.A6 rejoinder on 08.09.1988 in which it is clearly stated that the above said suit in O.S.No.174 of 1984 filed by one Murugan was already disposed of on 08.09.1988 itself and also informed that no such undertaken was given by the appellant/defendant to prove the above said facts and therefore, asked the respondent/plaintiff to come with balance consideration and also informed that the appellant/defendant is ready to execute the sale deed within one week. Therefore, the appellant / defendant has clearly informed the respondent/plaintiff about the disposal of the suit even on 08.09.1988 itself but the respondent/plaintiff has not come forward to file the suit for specific performance immediately after receipt of the above said reply but filed this Suit only on 07.11.1989 and also not taking any steps to verify the above said fact before the concerned Court, as rightly contended by the learned counsel for the appellant/defendant. In the agreement itself it is not stated that the appellant/defendant undertook to produce the documents to prove the disposal of the above said case. Therefore, the above said contention of the respondent/plaintiff that due to non-production of the above said documents, the sale deed could not be executed, is not true and unsustainable.

The next contention of the respondent/plaintiff is that since the appellant/defendant has not discharged the loan obtained from the Land Development Bank, the delay in execution of sale deed has been occurred. On the side of the appellant/defendant has specifically denied the above said contention and submitted that the above said loan was discharged on 27.06.1987 itself and the above said fact was also duly informed to the respondent/plaintiff. In spite of it, the respondent/plaintiff falsely contended that the appellant/defendant has not discharged the loan obtained from the Land Development Bank and for that reason, the delay in execution of sale deed has been occurred.

On the side of the appellant/defendant so as to prove the contention that the alleged loan obtained from the land Development Bank was discharged on 27.06.1987, D.W.1 was deposed and also marked Ex.B4 Bank Passbook. A perusal of the above said Bank Passbook reveals that the above said Bank loan was fully discharged on 27.06.1987, as contended by the learned counsel for the appellant/defendant. Further, the appellant/defendant has informed the above said discharge of loan on 27.06.1987 in Ex.A6, dated 08.09.1988 itself in rejoinder notice and it is clearly stated that the above said Bank loan was discharged on 27.06.1987 itself. Further in Ex.A10 reply notice dated 07.11.1989 also it is clearly stated that the Bank Loan was discharged on 27.06.1987 and the above said fact was also known to the respondent/plaintiff. On the side of the respondent/plaintiff has not stated that except the above said Bank Loan, any other loan obtained by the appellant/defendant is pending and not discharged by the appellant/defendant.

In the instant case, on the side of the respondent/plaintiff has filed Ex.A7, Encumbrance Certificate and contended that, as per the above said document, the loan obtained by Muthia Reddiar and Deivanai Ammal executed simple mortgage on 17.06.1967 and obtained the loan and no reference about the discharge of the above said loan and therefore, the above said loan was not discharged, as contended by the appellant/defendant. A perusal of the above said document in Colum-B itself reveal that the above said simple mortgage was executed on 17.06.1967 and undertook to pay Rs.1174.34 per month in 15 instalments. Therefore, the above said mortgage executed only for 15 months and as rightly contended by the appellant/defendant, the above said loan was discharged and the above said fact also informed to the respondent/plaintiff. At the time of evidence, the respondent/plaintiff has not produced any other documents or not examined any witnesses to prove that the defendant has not discharged the above said Bank loan, as undertaken in Ex.A3 agreement for sale. Therefore, respondent/plaintiff has falsely contended that only due to the above said reason i.e., Bank loan not discharged, the sale deed could not be executed, as per Ex.A3 agreement for sale.

A careful perusal of notice, reply notice and rejoinder issued by the respondent/plaintiff and appellant/defendant and the averments made in the above said documents clearly proved that the appellant/defendant has always ready and willing to perform her part of contract and only the respondent/plaintiff alone has not ready and willing to perform her part of contract and also the respondent / plaintiff has not proved that from the date of agreement till the date of filing the suit, she has sufficient means to pay the balance sale consideration.

As already discussed, the respondent/plaintiff has not filed the suit for specific performance within the prescribed period for execution of sale deed as per Ex.A3 agreement for sale. No satisfactory reason was assigned by the respondent/plaintiff for the above said abnormal delay and the explanation given by the respondent/plaintiff also not proved by reliable oral and documentary evidence, as already discussed. Further from the oral evidence of P.W.1 and D.W.1 reveal that the suit property was sold to one Jeyakumar of Rajapalayam by the appellant / defendant. Inspit of it, the respondent/plaintiff has not at all taking any steps to implead the above said purchaser viz., Jeyakumar, in the above said suit. No reason has been stated for not impleading the above said subsequent purchaser Jeyakumar. Further, from the facts and circumstances of the case and also from the conduct of the parties, it is clearly proved that time is essence of contract, as rightly pointed out by the learned counsel for the appellant/defendant.

The Supreme Court has laid down the principles of law regarding specific performance of an agreement for sale of immovable property involved the question whether the plaintiff was ready and willing to perform her part of contract in terms of Section 16 of Specific Relief Act, whether it is a fit case of exercise discretion of this Court to decree the specific performance in terms of Section 20 of Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the Court to enforce specific performance of contract.

The decision of Hon''ble Supreme Court in Mohanlal v. Mirza Abdul Gaffar reported in (1996 (1) SCC 639), it has been held as under:-

"Under Section 16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingess from the date of the contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when the transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as statutory right, is conditioned upon the transferee''s continuous willingness to perform his part of the contract in terms covenanted thereunder."

The yet another decision of Hon''ble Supreme Court in Syed Dastagir v. T.R. Gopalakrishna Setty reported in (1999 (6) SCC 337), wherein in paragraph 10, it has been held as under:-

"10. ......The section makes it obligatory to a plaintiff seeking enforcement of specific performance that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of the obligation. Unless this is there, Section 16(c) creates a bar to the grant of this discretionary relief. As we have said, for this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the plaintiff to perform his part of the obligation then it cannot be said there is noncompliance of the said section."

The decision of Hon''ble Supreme Court in Manjunath Anandappa Urf Shivappa Hanasi v. Tammanasa and Others reported in 2003 (2) CTC 109 (SC) : 2003 (3) L.W.5, wherein it has been held as follows:-

"There is another aspect of the matter which cannot be lost sight of. The plaintiff filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on record to show that he had ever asked Defendant 1, the owner of the property, to execute a deed of sale. He filed a suit only after he came to know that the suit land had already been sold by her in favour of the appellant herein. Furthermore, it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to a discretionary relief."

The decision of Hon''ble Supreme Court in Rajeshwari v. Puran Indoria reported in 2005 (4) CTC 567 (SC) : 2005 (7) SCC 60, wherein in paragraph 5 it has been held as under:-

"5. Normally, a suit for specific performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract in terms of Section 16 of the Specific Relief Act, whether it was a case for exercise of discretion by the court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale."

The decision of Hon''ble Supreme Court in M. Meenakshi and Others v. Metadin Agarwal (D) By LRs. and Others reported in 2007 (2) L.W 481, wherein in paragraph 39 it has been held as under:-

"39. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction should be exercised or not, the orders of a competent authority must also be taken into consideration. While the court upon passing a decree for specific performance of contract is entitled to direct that the same shall be subject to the grant of sanction by the concerned authority, as was the case in Mrs. Chandnee Vidya Vati Madden v. Dr. C.L. Katial and Others [AIR 1964 SC 978] and Nirmal Anand v. Advent Corporation (P) Ltd. and Others [(2002) 5 SCC 481]; the ratio laid down therein cannot be extended to a case where prayer for such sanction had been prayed for and expressly rejected. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted."

In the instant case, as already discussed, the plaintiff has failed to prove her ready and willingness to perform her part of contract in terms of Section 16 of Specific Relief Act and also there was latches on the part of the plaintiff in approaching the Court to enforce specific performance of contract and therefore, the plaintiff is not entitled to decree for specific performance in terms of Section 20 of Special Specific Relief Act.

Therefore the respondent/plaintiff is not at all ready and willing to perform her part of contract and also failed to prove the fact that she has sufficient means to pay the balance sale consideration from the date of agreement till the date of filing the suit. In the above said circumstances, the appellant/defendant is not at all entitled to return back the part payment of sale consideration paid by the respondent/plaintiff or avail of Section 53-A to retain the possession of the properties, which she had under the contract in Exs.A1 to A3. But the respondent/plaintiff is entitled to return back the balance consideration amount deposited by her at the time of filing Suit and answered points Nos.1 and 2 in favour of the appellant/defendant and as against the respondent/plaintiff.

From the above said findings regarding Points No.1 and 2, respondent/plaintiff is not entitled to the discretionary relief of specific performance, as prayed for in the plaint and therefore, the Appeal Suit filed by the appellant/defendant is to be allowed and answered the Points No.3 and 4 in favour of the appellant / defendant and as against the respondent / plaintiff.

In the result, the Appeal Suit is allowed and the judgment and decree passed in O.S.No.205 of 1989 on the file of Sub Court, Tenkasi, dated 10.11.1993 is set aside and the suit filed by the respondent/plaintiff is dismissed. The respondent / plaintiff is permitted to withdraw the deposited balance sale consideration before the trial Court. Considering the facts of this case, there shall be no order as to costs.