Ganga Harinarayanan vs K. Pattammal (deceased) and Others <BR>K. Gangadharan and Others Vs Ganga Harinarayanan and Others

G. Rajasuria, J.—These two second appeals, S.A. No. 1125 of 2008 and S.A. No. 1009 of 2009 have been focussed by the Plaintiff and the Defendants 3, 7 and 8 respectively animadverting upon the judgment and decree dated 28.02.2007 passed in A.S. No. 676 of 2005 by the learned v. Additional Judge, City Civil Court, Madras modifying the judgment and decree dated 29.10.2004 passed by the VI Assistant Judge, City Civil Court, Chennai in O.S. No. 7383 of 1996, which was filed by the Plaintiff for specific performance of the agreement to sell.

The parties are referred to here under according to their litigative status and ranking before the trial Court.

Heard both sides.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these two second appeals would run thus:

a) The Plaintiff, viz., Ganga Harinarayanan filed the suit seeking the following reliefs:

-to direct the Defendants to execute and register the sale deed in favour of the Plaintiff in respect of the property bearing New Door No. 1, Old No. 17, Venkatesa Naicken Street, George Town, Madras 600 001 more particularly described in the schedule here under given on receipt of the balance of Rs. 158750.00

- to direct the Defendants to deliver vacant possession of the said property morefully described in the schedule here under given;

- on failure to do so, by the Defendant this Honourable Court may be pleased to execute and register the sale deed in favour of the Plaintiff by an officer of this Honourable Court; or

- cancelling the decree dated 26.03.1990 passed by the XI Additional Judge, City Civil Court at Madras in O.S. No. 3007 of 87 in favour of the 9th Defendant herein as null and void.

- consequently declare the sale deed dated 30.3.90 pending No. 68 of 90 later document No. 344 of 1990 on the file of the Sub-Regis-trar. Sowcarpet Madras executed and registered by Defendant 1 to 8 in favour of the 10th Defendant in respect of the suit property as null and void.

- restraining by a permanent injunction the 10th Defendant her agents, servants and other units from transferring/alienating the suit property by sale, gift, settlement, long lease mortgage exchange or any other mode known to law pending disposal of the above case.

- and for costs.(extracted as such)

b) Written statement was filed by D2 to D8 resisting the suit and separate written statements were filed by D9, D10 and D11 to D14, supporting the written statement of D2 to D8. Pending suit, D1 died and his legal heirs D2 to D8 are already on record.

c) Whereupon issues were framed. On the side of the Plaintiff, the Plaintiff examined himself as P.W1 and marked Exs. Al to A65. On the side of the Defendants, D. Ws.l and 2 were examined and no document was marked.

d) Ultimately the trial court dismissed the suit in toto. As against which, appeal was filed, thereupon the appellate court modified the judgment and decree of the trial court to the effect that the dismissal of the suit for specific performance by the trial court was confirmed; but ordered directing the Defendants concerned for return of the advance amount under the agreement to sell and also payment of compensation with interest in favour of the Plaintiff.

e) Being aggrieved by and dissatisfied with the judgment of the first appellate court, these two second appeals have been filed. S.A. No. 1 125 of 2008 was filed by the Plaintiff contending that the prayers in the original suit should have been granted by the courts below in toto. Whereas S.A. No. 1009 of 2009 was filed by Defendants 3, 7 and 8 challenging the order passed by the first appellate court in directing the return of the advance amount as well as the payment of compensation by the Defendants in favour of the Plaintiff.

S.A. No. 1 125 of 2008 is based on various grounds, inter alia to the effect that-

(i) the courts below failed to note that under Ex. Al, the agreement to sell dated 03.01.1987, the Plaintiff was entitled to specific performance.

(ii) The courts below failed to cancel the decree in one other suit in O.S. No. 3007 of 1987 granted in favour of the ninth Defendant herein.

(iii) The courts below also failed to hold that the sale deed bearing No. 68 of 1990 dated 30.03.1990 pending registration in the Sub Registrar Office at Sowcarpet in favour of ninth Defendant was null and void. The successive sales by the tenth Defendant, the nominee of the ninth Defendant to Defendants 11 to 14 as per Document No. 342 of 1994 also should have been declared as void because those documents emerged pendente lite.

(iv) Both the courts below failed to consider the oral and documentary evidence in the proper perspective and accordingly, the following proposed substantial questions of law are found set out in the memorandum of second appeal.

a. Whether the Appellant is entitled to relief of specific performance of contract as per Ex. Al dated 03.01.1987?

b. Whether the Appellant is entitled to delivery of vacant possession of the suit property consequent to a decree for specific performance of contract in terms of Ex. Al dated 03.01.1987?

c. Whether the decree dated 26.03.1990 passed by XI Additional Judge, City Civil Court at Madras in O.S. No. 3007 of 1987 in favour of the 9th Defendant is liable to be cancelled as null and void?

d. Whether the sale deed dated 30.03.1990 pending No. 68 of 1990 (admitted as Doc. No. 344 of 1990) on the file of Sub Registrar Office at Sowcarpet, Madras executed and registered by Defendants 1 to 8 in favour of the 10th Defendant is liable to be cancelled as null and void consequent to cancellation of the judgment and decree dated 26.3.1990 in O.S. No. 3007 of 1987 by XI Additional Judge at Madras?

e. Whether the sale of the suit property by me 10th Defendant favouring Defendants 11 to 14 registered as Document No. 342 of 1994 on 24.3.1994 on the file of Sub-Registrar Office at Sowcarpet, Madras in respect of the suit property is subject to pendente lite in terms of Section 52 of Transfer of Property Act?

f. Whether the Appellant is entitled to a permanent injunction against transfer/alienation of suit property by Respondents pending disposal of the appeal?

g. Whether the suit is time barred?

h. Whether the Appellant is entitled to cots of the suit, first appeal and second appeal?

(extracted as such)

(v) However, my learned predecessor at the time of admitting the second appeal framed the following substantial questions of law:

Whether the courts below have committed an error in holding that the suit is barred by limitation?

Whether the courts below have committed an error in dismissing the plea for setting aside the judgment and decree dated 26.03.1990 made in O.S. No. 3007 of 1987 on the file of the XI Additional Judge, City Civil Court, Chennai?

Whether the courts below are right in holding that the Plaintiff is not entitled to the relief of specific performance as there is a fraud played upon the court in getting the permission from the court for selling the minor''s shares also? (extracted as such)

In S.A. No. 1009 of 2009, the Appellants raised various pleas inter alia to the effect that in the absence of specific prayers in the plaint for the return of the advance amount and also for awarding of compensation, the first appellate court was not justified in ordering so.

My learned predecessor, while admitting the second appeal formulated the following substantial questions of law.

Whether the lower appellate court has got power and jurisdiction to grant decree for return of advance and for ordering compensation when the same has not been claimed in the plaint and the same is specifically prohibited u/s 21(5) and Section 22(2) of the Specific Relief Act, 1963?

Whether the lower appellate court has power (sic to order) compensation without there being any pleadings or evidence for arriving at the quantum?

Whether the lower appellate court decreeing for return of advance and payment of compensation by the Appellant jointly is sustainable in law in view of lack of pleadings and evidence?

Whether the award of compensation is proper when the decree for specific performance was denied on the ground of fraud practiced by the Plaintiff on the court in creating two sale agreements and produced one sale agreement for Rs. 90,000/- for getting minor''s interest?

Whether the lower appellate court has (sic.was) right in not apportioning the return of advance of Rs. 41,250/- and compensation of Rs. 3,00,000/- with interest among the Defendants 2 to 8?

(extracted as such)

Relating to the substantial questions of law formulated in both the second appeals, the gist and kernel of the argument of the learned Counsel for the Plaintiff would run thus;

A] The agreement to sell, Ex. Al should have been enforced by the courts below, but they erroneously held as though it was barred by limitation?

B] The Plaintiff was always ready and willing to perform his part of the contract and the Defendants 2 to 8 alone committed default in performing their part of the contract and they suggested variation etc. The courts below were not justified in holding that there was fraud involved in the obtention of the order from the District Judge u/s 8 of the Guardian and Wards Act as per Ex.A19.

C] In the earlier suit O.S. No. 3007 of 1987, filed by D9 herein against Dl to D8, in respect of the same suit property based on one other agreement to sell, the Plaintiff herein wanted to get himself impleaded but the trial court in that suit dismissed it and that was a collusive suit and the courts below in these proceedings should have considered the same and declared the said decree as null and void. But, they failed to do so.

D] The clauses in Ex. Al were not properly understood by both the courts below and they have given undue importance and significance to the time of three months found specified in Ex. Al. Unless and until the formalities contemplated in the agreement are complied with, the question of calculating the limitation period as contended by the Defendants would not arise. But, both the courts below failed to consider the same and erroneously held as though the suit was barred by limitation.

Accordingly, the learned Counsel for the Plaintiff would pray for setting aside the judgment and decrees of the courts below and for decreeing the original suit in toto as prayed for.

By way of torpedoing and pulverising the argument as put forth and set forth on the side of the Plaintiff, the learned senior counsel for the Appellants/D3, 7 and 8 would advance his argument, the gist and kernel of it would run thus:

i) The Plaintiff approached the court without clear facts. There are two agreements to sell involved in this case. One agreement to sell is as contained in Ex. Al dated 03.01.1987 and Anr. agreement is dated 22.01.1987.

ii) The suit was filed by the Plaintiff only for enforcing the first agreement to sell dated 03.01.1987, which contains the clause to the effect that within three months from 03.01.1987, the entire transaction should be completed. But indubitably and indisputably, the Plaintiff took time to perform his part of the contract. It so happened that the pre-suit notice as per Ex.A22 was given by the Plaintiff to the Defendants concerned calling upon them to come forward to execute the sale deed as per the second agreement dated 22.01.1987, for which, as per Ex.A24, the Defendants concerned replied to the effect that the suit instituted by D9, viz., O.S. No. 3007 of 1987 in the court of XI Additional Judge, City Civil Court, Madras was pending and after that, the sale transaction could be completed based on the first agreement subject to the condition that the Plaintiff should agree for a total sale consideration of Rs. 2 lakhs and for which rejoinder as per Ex.A25 was given by the Plaintiff to the Defendants concerned that there was no such first agreement dated 03.01.1987 in vogue.

(iii) To the great shock and surprise of the Appellants herein, the Plaintiff subsequently filed the very present suit for enforcing Ex. Al the first agreement to sell dated 03.01.1987 and that too after the expiry of the limitation period.

(iv) Consequent upon the dismissal of the LA filed by the Plaintiff for impleadment in the said previous suit filed in O.S. No. 3007 of 1987 by D9 herein, no further action was taken and in such a case, he was not justified in making a prayer for getting the earlier judgment and decree set aside. (iv) The first appellate court while negativing the prayer of the Plaintiff in seeking part performance, was not justified in the absence of specific prayers for the return of the advance amount and for awarding compensation, for ordering so.

(v) The first appellate court was not justified after holding that there were laches on the part of the Plaintiff, in awarding compensation as well as return of the advance amount.

As such, the learned Counsel for the Appellants/Defendants 3, 7 and 8 would pray for setting aside that much portion of the judgment and decree of the first appellate court in ordering return of the advance amount and payment of compensation by the Defendants.

The substantial question of law Nos. 1, 2 and 3 in S.A. No. 1125 of 2008 are taken up together for discussion as they are inter-linked and inter-woven with one Anr..

There are as many as 83 grounds found set out in the memorandum of second appeal, which are mostly relating to finding of facts by both the courts below.

It is a trite proposition of law that regarding the concurrent finding of facts is concerned, the courts below are the competent courts and as against which, in the second appeal there can be no fresh analysis of the facts.

At this juncture my mind is reminiscent and redolent of the following decisions of the Hon''ble Apex Court.

(i) Hero Vinoth (minor) Vs. Seshammal,

(ii) Kashmir Singh Vs. Harnam Singh and Another, .

(iii) 2009 1 L.W. 1 State Bank of India and Ors. v. S.N. Goyal

A plain reading of those precedents would reveal and demonstrate that the second appeal cannot be entertained, unless there is substantial question of law involved and the second appellate court cannot in the absence of any perversity or illegality in the finding of facts rendered by the courts below, interfere with such findings of facts.

However, only eight proposed substantial questions of law are found set out in the memorandum of second appeal and my learned predecessor formulated the aforesaid three substantial questions of law and as such, I proceed to discuss those substantial questions of law.

Unarguably and unassailably, indubitably and indisputably, Ex. Al is the agreement to sell dated 03.01.1987. Before the lower court virtually, both sides agreed that such an agreement emerged between the parties concerned.

A plain and bare reading of Ex. Al dated 03.01.1987 would exemplify and demonstrate that in clause No. (1) the period of performance was specified as three months, which means that on or before 03.04.1987, the parties should have performed their respective parts of the contract. But, in this case, it did not happen. It is also an admitted fact, virtually by both sides that shortly after Ex.A1, the second agreement emerged on 22.01.1987 between the same parties and for the same property. In the other clauses in Ex. Al, there are certain references to certain time limit for performing certain specific acts. It is therefore just and necessary to extract Clause 1 as well as clauses 8, 9, 10 and 11 in Ex. Al as under:

The vendors shall sell and the purchaser shall purchase the said property for a sum of Rs. 2,00,000 (rupees two lakhs only) free from all encumbrances and litigation. Time agreed upon for execution and registration of Sale Deed subject to conditions herein contained is 3 months. This agreed upon time may be extended further by mutual consent of the parties hereto and upon such extended time the terms and conditions of this agreement shall continue to be in force and alive.

The vendors shall obtain sanction of the court for the said minor (8th vendor) having share in the said property and shall agree to deposit the minor''s share in a bank or with the purchaser or shall give sufficient security of other immovable properties of the guardian, till the minor attains the age of majority and ratified the sale deed in favour of the purchaser.

The vendors shall obtain Income Tax Clearance Certificate of all the executants and shall also obtain the sanction from the competent authorities for selling the said properties.

The vendors shall handover all the documents/informations etc., to the purchaser''s Advocate within 1 month of this date. The Advocate for the purchaser shall on receipt of all the information, documents etc., give his opinion and draft Sale Deed to the vendors within 5 weeks of this approval of the title.

The vendors shall execute and register the sale deed or deeds in favour of the purchaser and or his nominee(s) in respect of the Schedule mentioned property state here under within 4 weeks after the completion of the formalities and after the request by the purchaser.

The learned Counsel for the Plaintiff, placing reliance on those clauses would submit that the gist and kernel, the sum and substance of those clauses would be to the effect that the conditions contemplated in the agreement should be complied with and thereafter only without any laches, the question of getting the sale deed executed and registered would arise.

Whereas the learned senior counsel for the Defendants concerned would submit that such an interpretation as canvassed by the learned Counsel for the Plaintiff cannot be accepted in view of the settled proposition of law. He would place reliance on Article 54 of the Limitation Act, which is extracted here under:

Description of suit -For Specific Performance of a contract Period of Limitation - three years Time from which period begins to run -The date fixed for the performance, or, if no such date is fixed, when the Plaintiff has notice that performance is refused.

The following are the decisions cited by him.

Mahboob Pasha Vs. Syed Zaheeruddin and Others,

The point for consideration is whether the trial Court is justified in law in holding that the suit is not barred by time?

Necessary facts which are not much in controversy and as found by the trial Court are as follows:

The Appellant-Defendant executed an agreement of sale on 10-8-1974 in favour of Respondents I to 4 - Plaintiffs I to 4 -agreeing to sell the suit schedule property to Respondents I to 4 for a sum of Rs, 30,000/-. He also received a sum of, Rs. 5000/- as advance from the Respondents. The balance of the consideration amount was required to be paid within a period of six months from the date of the agreement and the sale deed was required to be obtained. The relevant portions of the agreement are as follows

The balance of sale consideration of Rs. 25,000/- (Rupees twenty-five thousand only) shall be paid by the purchaser to the vendor at the time of execution of the sale deed before the Sub-Registrar.

The said balance of sale consideration shall be paid in full within a period of six months from this date.

XX XX XX

Similarly if the purchasers do not complete the transactions within the time stipulated under this agreement, the vendor is at liberty to forfeit the advance amount of Rs. 5,000/- (Rupees five thousand only).-

Thus the parties agreed that the agreement was to be performed within a period of six months from the date of the agreement. The Appellant has not disputed the agreement.. The suit property is a residential house consisting of ground and first floor. Under Clause 6 of the agreement, the Appellant had agreed to deliver vacant possession of the ground floor of the suit premises which was in his personal occupation. The first floor was in the possession of the tenant by name Abdul Sattar, The said Abdul Sattar filed a suit in O.S. No. 2095/1974 on 28-10-1974 in the Court of the First Munsif, Bangalore, against the Appellant and the Ist Respondent herein seeking- a decree for permanent injunction restraining the Appellant from alienating the suit premises in favour of Respondent-I or any other party. On the same day, he also obtained an order of temporary injunction restraining the Appellant from alienating the suit property in favour of Respondent-I or any other party. That suit was founded on an agreement of sale alleged to have been executed by the Appellant in favour of the said Abdul Sattar on 15-9-1974. The order of temporary injunction was in force from 28-10-197-4 to 25-11-1970 and on 25-11-1976 the suit was dismissed for default. On 3-12-1976, the said Abdul Sattar filed "a Miscellaneous Application to set aside the order of dismissal and to restore the suit. On 17-4-1978, the order dismissing the suit for default was set aside and the suit was restored. Thereafter on 27-8-1980 the suit was dismissed on merits. The appeal R.A. No. 775/1980 preferred against the judgment and decree of the learned Munsiff was also dismissed. The present suit was filed by Respondents I to 4 on 3-12-1980 seeking specific performance of the agreement of sale dt. 10-8-1974.

We are of the view that the approach made by the learned trial judge is on the face of it erroneous. It is the duty of the Court to decide the question as to when the limitation commences, depending upon the nature of the suit. The decision on such question shall have to be of the court. It cannot be founded on the submission made by the counsel for the parties. Limitation affects the jurisdiction of the Court. If the suit is barred by limitation, the Court has no jurisdiction to entertain it. Therefore, as the parties cannot Confer jurisdiction on the Court by consent, the question of limitation as to the original cause of action cannot be decided on the concession made by the parties. S. S of the Limitation Act does not apply to the original cause of action so as to extend the period of limitation by concession made by the parties. The expression ''prescribed period'' as per Clause (j) of Section 2 of the Act means, the period of limitation computed in accordance with the provisions of the Act. Sub-section (I) of Section 3 of the Act further provides that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Therefore, it is the duty of the Court to decide the question of limitation.

It is clear from the contents of column No. 3 of Article 54 mat it consists of two parts. The first part relates to cases where the agreement for sale fixes the date for performance and the second part relates to cases where the agreement does not fix any date for performance and in such a case the limitation begins to run when the Plaintiff has notice that performance is refused. No doubt normally in the case of an agreement for sale, relating to immovable property, time is not the essence of the Contract unless the agreement in clear terms provides for it without any ambiguity. The question whether time is the essence of the contract is relevant for the purpose of determining the question as to who has committed breach of the agreement; but it Is not relevant for deciding the question as to commencement of the period of limitation. In a case where the date for performance of the agreement is fixed, as per first part of Article 54, the limitation begins to run from the date fixed for the performance. The clear meaning of this is that irrespective of the fact whether the time is the essence of the Contract or not, the period of limitation begins to run from the date fixed for the performance of the agreement. There is no ambiguity what so ever. This is also the view taken by the High Courts of Madras and Madhya Pradesh.

Thus in the instant case, the limitation has commenced on 10-2-1975, i.e. the date fixed in the agreement for performance of the contract. 14. In this regard, it is relevant to bear in mind that in construing the provisions of the Limitation Act, equitable considerations are immaterial and irrelevant. While applying the rules of limitation, effect must be given to the strict grammatical meaning of the words used therein. See AIR 1932 165 (Privy Council) . As it is already pointed out that the order of injunction obtained by Abdul Sattar on 28-10-1974 in O.S. No. 2095/74 was to restrain the Appellant from alienating the suit property to the Ist Respondent or to any other party. It did not restrain the Respondents from filing the suit for specific performance nor the Respondents were in any way prevented by reason of such an order of temporary injunction from filing the suit. Section 15(1) of -the Act reads thus:

15(1): In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded." The facts as found by the trial Court, in our view, did not enable Respondents 1 to 4 to exclude the period from 28-10-1974 to 27-8-1980 because they were not prevented from filing the suit. What all S. 15(1) provides for is that the time intervening between the date on which the institution of the suit was stayed and the date on which the stay- order, was vacated shall be excluded in computing the period of limitation. In this case, as already pointed out, there was no order of injunction in the suit filed by Abdul Sattar restraining Respondents I to 4 from filing a suit against the Appellant for specific performance of the agreement in question. What was obtained by him was an interim order of injunction restraining the Appellant from alienating the property in question in favour of Respondent I or any other party and, therefore, S. 15(1) of the Limitation Act did not-permit the trial Court to exclude the time from 28-10-74 to 27-8-1980. By excluding that period, it hel4. that the suit filed on 3-12-1980 was within time.

15-16. This point had come up for consideration before the Privy Council in AIR 1945 5 (Privy Council) . In that case, an order of injunction was operating against the Defendant in the suit restraining him from interfering with the Plaintiffs possession. It was held by the Privy Council that the Defendant was not restrained from bringing a suit for possession so as to exclude the period during which injunction was issued by trial Court and dissolved by Privy Council. In that suit for declaration and possession, a temporary injunction which was subsequently confirmed by the decree restrained the Defendant from interfering with Plaintiffs possession and the Defendant was also prevented from causing obstruction in any way to the Plaintiff in removing the crops grown by him or in accepting or recovering the amount of rent of the said lands from the tenants. It was held by the Privy Council that there was no prohibition, either express or even implied, in the injunction or the decree which restrained the Defendant from instituting a suit for possession; that the institution of a suit could not be said to be futile, if it would thereby prevent the running of 1 Imitation only because the title of the parties was involved in the suit; that the, subsequent suit by Defendants after 12 years from the date of dispossession '' was barred by limitation and that S. 15 did not entitle the Defendant to exclude the time between the Plaintiff''s suit and decision of the Privy Council. This decision was followed by the Supreme Court in Sirajul Haq Khan and Others Vs. The Sunni Central Board of Waqf, U.P. and Others, (See para 20 of the judgment of the Supreme Court). The Supreme Court while considering the effect of S. 15(1) of the Limitation Act referred to the decision of the Privy Council adverted to above and observed as follows:

For excluding the time u/s 15, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit. And so'' in cases falling u/s 15, the party instituting; the suit, would by such institution be in contempt of Court. If an express order, or injunction is produced by a party that clearly meets the requirements of S. 15. Even assuming that S. 15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation, there would be no justification for extending the application of 15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation. It is true that rules of limitation are to some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant and in applying them effect must be given to the strict grammatical meaning of the words used by them.

T.L. Muddukrishanan and another Vs. Smt. Lalitha Ramchandra Rao, .

It is seen that limitation u/s 3 of the Limitation Act is one of the defences available; to the Defendant. Article 54 of the Schedule to the Limitation Act postulates that for specific performance of a contract the period of limitation is three years from the date fixed for the performance, or, if no such date is fixed, from the date the Plaintiff has notice that performance is refused. Under first part of Article 54, once date for performance of the contract has been fixed by the parties, the limitation begins to run from that date and specific performance of the contract could be had within three years from that date unless the parties by an agreement extend die fixed time. In this case, date was fixed for performance, i.e., May 28, 1989. The question whether or not the time is the essence of the contract is not of much relevance since the case falls in first part of Article 54? The decision relied on by the learned Counsel for the Appellants in Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., , of the Constitution Bench does not help the learned Counsel for the Appellant. In that case, this Court has reviewed the entire case law and need for reiteration is obviated. The Court held thus (Para 18 of AIR):

It is well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.

Under these circumstances, it must be held that for the purpose of limitation, what is material is that the limitation begins to run from the date the parties have stipulated for performance of the contract. The suit is required to be filed within three years from the date fixed by the parties under the contract. Since the application for amendment of the plaint came to be filed after the expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended, along with an application for specific performance which, as stated earlier, was rejected. Under these circumstances, even by the date of filing of the application, namely, November 5, 1992, the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint.

Both sides cited the decision of the Hon''ble Apex Court reported in S. Brahmanand and Others Vs. K.R. Muthugopal (D) and Others, .

Thus, this was a situation where the original agreement of 10.3.1989 had a "fixed date" for performance, but by the subsequent letter of 18.6.1992 the Defendants made a request for postponing the performance to a future date without fixing any further date for performance. This was accepted by the Plaintiffs by their act of forbearance and not insisting on performance forthwith. There is nothing strange in time for performance being extended, even though originally the agreement had a fixed date. Section 63 of the Indian Contract Act, 1872 provides that every promisee may extend time for the performance of the contract. Such an agreement to extend time need not necessarily be reduced to writing, but may be proved by oral evidence or in some cases, even by evidence of conduct including forbearance on the part of the other party. Thus, in this case there was a variation in the date of performance by express representation by the Defendants, agreed to by the act of forbearance on the part of the Plaintiffs. What was originally covered by the first part of Article 54, now fell within the purview of the second part of the Article.Pazhaniappa Chettiyar v. South Indian Planting and Industrial Co. Ltd. was a similar instance where the contact when initially made had a date fixed for the performance of the contract but the Court was of the view that "in the events that happened in this case, the agreement in question though started with fixation of a period for the completion of the transaction became one without such period on account of the peculiar facts and circumstances already explained and the contract, therefore, became one in which no time fixed for its performance." and held that was originally covered by the first part of Article 113 of the Limitation Act, 1908 would fall under the second part of the said Article because of the supervening circumstances of the case.

The learned Counsel for the Plaintiff also cited one other decision of the Hon''ble Apex Court reported in (2006) 3 MLJ 81 (SC) Panchanan Dhara v. Monmatha Nath Maity on limitation point.

Normally, time is not the essence of contract for performing the obligations under the agreement to sell relating to immovable property, yet limitation point should not be forgotten. Here, it is not the case of the Defendants that beyond three months as contemplated in the agreement, the Plaintiff expressed his desire to perform his part of the contract.

It is the specific case of the Defendants concerned that the Plaintiff filed the suit beyond the period of limitation and that distinction should not be forgotten. It is one thing to say that the Plaintiff within the limitation period but, belatedly beyond the time stipulated for performing his part of the contract came forward to perform his part of the contract and it is yet entirely a different matter to say that the Plaintiff has filed the suit beyond the limitation period. The distinction between the two is not one between tweedledum and twee-dledee or between rock and a hard place or between six of the one and half a the dozen of the other; but the distinction is one between that of chalk and cheese and this has been correctly understood by both the courts below and held that the suit was barred by limitation.

I am of the considered view that in Ex. Al, three months limitation period was contemplated as on 03.01.1987 and that three months'' period expired by 03.04.1987 and three years limitation period as per Article 54 of the Limitation Act expired by 03.04.1990. Whereas, admittedly, the plaint was presented before the court only on 24.04.1990 long after the expiry of the limitation period.

As such, I could see considerable force in the submission made by the learned Counsel for the Appellants/Defendants that the suit was barred by limitation and over and above that I would also like to refer to the pre litigation correspondences, which emerged between the parties. At the first instance, the Plaintiff issued Ex.A22 dated 23.07.1987 beyond the stipulated period in Ex. Al seeking specific performance of the second agreement to sell dated 22.01.1987 stating that the entire sale consideration was only for Rs. 90,000/-. Whereas in the reply notice as per Ex.A24 dated 30.07.1987, the Appellants/Defendants contended that they agreed only for the enforcement of the first agreement to sell dated 03.01.1987 and also for accepting the sum of Rs. 2 lakhs sale consideration as contemplated there in and they also added one fact that after the disposal of the earlier suit in O.S. No. 3007 of 87 on the file of the XI Additional Judge, City Civil Court, Madras instituted by the ninth Defendant, they would agree for executing the sale deed. Had the Plaintiff accepted to such a proposal then the matter would have been different. But in the rejoinder Ex.A25 dated 08.08.1987, the Plaintiff totally rejected the demand of the Defendants. In such a case, it is obviously and axiomatically, pellucidly and palpably clear that there was no consensus ad idem between the parties relating to enforcement of the agreement to sell Ex. Al in toto.

I would also like to refer to Ex.A19, which contains the order of the Principal Judge, City Civil Court, Madras concerned. The trial court correctly commented upon it by pointing out that the said order was obtained by practising fraud on the court as the sale consideration referred to therein did not reflect the true sale consideration and both parties were guilty of fraud.

In this regard, the Hon''ble Apex Court in the following judgment has held that in a suit for specific performance, if the Plaintiff had not approached the Court with clean hands, the suit should be dismissed.

2006 (1) LW 547 (SC) The State of Andhra Pradesh and Anr. v. T. Suryachandra Rao.

"Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh Vs. Savitri Devi and Others, .

A mere poring over and perusal of the aforesaid judgment would amply make the point clear that if the party approaches the court with unclean hands or suppression of material facts or distorted facts, then such a Plaintiff is not entitled to specific performance.

According to the Plaintiff, as per Ex.A21, the Income Tax clearance certificate was obtained by the Defendants 1 to 8 only on 02.04.1987 and accordingly, he would canvass his point that the Defendants cannot plead that the suit was barred by limitation. Admittedly, such income tax clearance certificate itself was obtained by misrepresenting that the sale consideration was Rs. 90,000/- and not Rs. 2 lakhs. The written arguments at Para No. 41 and 41-A emerged out of ignoring the Plaintiff''s own falsehood in getting the Income Tax Clearance Certificate and also the permission from the District Court for selling the minor''s share by practising fraud on the court and the authority concerned.

The one other contention on the side of the Plaintiff that the subsequent agreement to sell dated 22.01.1987 emerged because, the parties intended that the first agreement containing higher sale consideration of Rs. 2 lakhs is enforced, then it will lead to some difficulty in obtaining income tax clearance and also in paying higher stamp duty, etc.

I re-collect and call-up the following maxims:

(i) Ex turpi causa non oritur actio - (Out of a base (illegal or immoral) consideration, an action does (can) not arise.

(ii) Ex dolo malo non aritur actio - (Out of fraud no action arises; fraud never gives a right of action. No court will lends its aid to a man who founds his cause of action upon an immoral or illegal act.

(iii) In pari delicto potior est conditio possidentis (defendentis) - In a case of equal or mutual fault (between two parties) the condition of the party in possession (or defending) is the better one. Where each party is equally in fault, the law favours him who is actually in possession. Where the fault is mutual, the law will leave the case as it finds it.

In view of the aforesaid proposition, it is clear that even as per the Plaintiff''s version, Ex. Al agreement to sell was sought to be manipulated and twisted and wrongly projected in the eye of law by entering into the second agreement to sell dated 22.01.1987 and now on the Plaintiff''s side it cannot be contended that the terms and conditions in Ex. Al and the subsequent agreement dated 22.01.1987 were verbatim the same and there was no novation etc. The mala fide intention of the Plaintiff is writ large. It is crystal clear that the Plaintiff who seeks specific performance of an agreement to sell should not have even least bad intention or mala fide intention in the process of getting the agreement to sell specifically enforced.

It is not known, how it is open for the Plaintiff to contend all those facts openly, and simultaneously having a volte face and turning turtle and contend that the equitable relief of specific performance should be granted in his favour. The written arguments submitted on the side of the Appellant/Plaintiff elaborately in support of the contention of the Plaintiff, are totally untenable.

The contention on the side of the Plaintiff that the period of limitation has to be computed only after complying with the various conditions contemplated in the agreement to sell is neither here nor there.

In the agreement to sell itself, three months time was contemplated and in such a case, the limitation period should be computed only from the expiry of the three months period and accordingly, if computed, the suit filed was beyond time.

The learned Counsel for the Plaintiff would argue that the emergence of the second agreement to sell dated 22.01.1987 specifying therein the sale consideration as Rs. 90,000/-was purely for the purpose of saving stamp duty and also for income tax purpose and in such a case, it cannot be taken as novation of the contract.

In support of the same, he would cite the following two decisions:

Lata Construction and Others Vs. Dr. Rameshchandra Ramniklal Shah and Another, .. An excerpt from it would run thus:

One of the essential requirements of "Novation", as contemplated by Section 62, is that there should be complete substitution of a new contract in place of the old. It is in that situation that the original contract need not be performed. Substitution of a new contract in place of me old contract which would have the effect of rescinding or completely altering the terms of the original contract, has to be by agreement between the parties. A substituted contract should rescind or alter or extinguish the previous contract. But if the terms of the two contracts are inconsistent and they cannot stand together, the subsequent contract cannot be said to be in substitution of the earlier contract.

1998 MLJ 599 (Mad) Division Bench judgment Rajam Gopalak-rishnan v. Mrs. Kumudam and Anr.

A mere perusal of those cited decisions would amply make the point clear that the Hon''ble Apex Court set out the principles relating to novation and there could be no doubt about it. However, the facts involved in this case are entirely different.

In such a case, the Plaintiff cannot contend that there was no novation etc.and those decisions cited are out of context.

The trial court adverting to the oral and documentary evidence adduced in the matter, clearly and categorically held that the parties played fraud on the court in obtaining permission to sell the D8 minor''s share as per order in O.P. No. 57 of 1987 of the learned Principal Judge, City Civil Court, Madras and the sale consideration was only shown as Rs. 90,000/-and not two lakhs as per Ex.A1.

Placing reliance on the said second agree-ment quite contrary to the sum of Rs. 2,00,000/- contemplated under the first agreement to sell in Ex. Al as held by the lower court the income tax clearance certificate was obtained by showing as though the sale consideration was only Rs. 90,000/-.

To the risk of repetition and pleonasm, but without being tautologous, what I would like to point out is that Article 54 of the Limitation Act cannot be given a go-by based on these documents and further more, the very animus or intention of the Plaintiff himself to get Ex. Al specifically enforced, even as per Ex.A22 referred to supra is absent.

I recollect the following maxim- Qui approbat non reprobat - [He who approbates does not reprobate, i.e., he cannot both accept and reject the same thing.

At the first instance, the Plaintiff wanted to get enforced the second agreement to sell dated 22.01.1987 and thereupon, there were exchange of correspondences. But, subsequently, the Plaintiff filed the suit for enforcement of the first agreement Ex. Al dated 03.01.1987 and in such a case, as per the aforesaid decision of the Hon''ble Apex Court, the case of the Plaintiff cannot be upheld. My mind is reminiscent of the following maxims:

Suppressio veri suggestio falsi - Suppression of the truth is equivalent to the suggestion of what is false.

Suppressio veri expression falsi - Suppression of the truth is equivalent to the expression of what is false.

As per Section 16 of the Specific Relief Act, the Plaintiff should always be ready and willing to perform his part of the contract and in this connection, the following judgment could rightly be cited.

Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, .

Section 16(c) of the Specific Relief Act, 1963 ("the Act", for short) bars the specific performance of a contract in favour of a Plaintiff "who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the Defendant.

Explanation (ii) to Section 16 provides that for purposes of clause (c) of Section 16.

the Plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

Thus, in a suit for specific performance, the Plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. (See N.P. Thirugnanam (D) by L.Rs., Vs. Dr. R. Jagan Mohan Rao and others, ; Pushparani S. Sundaram and Others Vs. Pauline Manomani James (Deceased) and Others, ; and Manjunath Anandappa Urf. Shivappa Hanasi Vs. Tammanasa and Others, .

In the first case, this Court held: (N.P. Thirugnanam case, SCC p.118, para 5)

5.... The continuous readiness and willingness on the part of the Plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the Plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the Plaintiff is ready and willing to perform his part of the contract, the courst must take into consideration the conduct of the Plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the Defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the Plaintiff was ready and was always ready and willing to perform his part of the contract.

The learned senior counsel for the Defendants cited the following judgments:

2009(7) MLJ 237 : 2009 5 L.W. 242 Division Bench judgment of this Court Bangaru Chettiar and Ors. v.B.B. Lalitha (Died) and Ors..

The Plaintiff therefore, seeks to enforce an agreement which the Plaintiff herself had attacked as false. If the agreement is alleged to be fraud and brought about without her willingness and consent, then there is neither readiness nor willingness to perform that agreement as far as 15.07.1979 is concerned. Therefore, both the trial Court and the learned single Judge ought not to have granted a decree for specific performance of the agreement dated 15.07.1979. If they were of the opinion that the agreement dated 24.03.1979 was a concluded contract and it deserved to be specifically performed, then the decree may have been granted in respect of that agreement. They cannot grant a decree for specific performance of a contract which the Plaintiff herself had alleged to be fraudulent and obtained without her consent. An agreement is something where there is consensus ad idem and this is denied by the Plaintiff and therefore, we cannot grant a decree for specific performance in favour of the first Respondent in respect of the agreement dated 15.07.1979.

Once we have arrived at the conclusion that the agreement denied by the Plaintiff herself cannot be specifically performed it is not necessary for us to go into any other issues. However, since the decision in Lata Durga Prasad and Anr. v. Lata Deep Chand and Ors. (Supra) was referred to by the learned senior counsel for the first Respondent, we will deal that decision. There the vendor was one Nawab. He was the first Defendant. There was an agreement on 07.02.1942. The Plaintiff''s case was that on that date the said Nawab agreed to sell the property to him and accepted the earnest money the same day. Later he sold the same property to the Appellants on 04.04.1942. The Appellants'' case was that the Plaintiff''s agreement dated 07.02.1942 was not a concluded one as the parties never reached finality. The Nawab''s plea was one of fraud and misrepresentation. He said that there was a previous contract with the Appellants and they had paid him advance on 05.02.1942. After this, he was told by the Plaintiff''s brother that they had backed out and believing that could he had entered into an contract dated 07.02.1942 with the Plaintiff.

In Ganesh Shet Vs. Dr. C.S.G.K. Setty and Others, the Supreme Court considered a case where the Plaintiff pleaded that there was one agreement executed at Bangalore and Anr. one at Delhi the Supreme Court was not impressed with the case of the Plaintiff and specific performance was denied.

P. Retnaswamy Vs. A. Raja and Another, .

11.... At this juncture it has to be pointed out that in a suit for specific performance, the Plaintiff cannot be allowed to depart from his case as set up in the plaint and therefore if one agreement is set up in the plaint, but Anr. agreement is attempted to be established, the case of the Plaintiff has got to be rejected on that ground alone. In the instant case it is needless to say that the Plaintiff in his evidence has made an attempt to substitute entirely a new agreement of sale than one what is found under Ex. Pl agreement and also averred in the plaint. Needless to say that the relief of specific performance is in the nature of an equitable relief and that even the conduct of the party may disentitle him to the relief asked for. Suffice it to say that in the instant case, the Plaintiff who cam with a specific averment of an agreement for sale on 10.07.1996 has not adduced any evidence to prove the same. The oral evidence adduced by the Plaintiff stands contra to the averment found in Ex. Pl agreement and in the pleading.

A mere perusal of the aforesaid judgments would clearly display and demonstrate that if there are laches on the part of the Plaintiffs, then the Plaintiff is not entitled to specific performance.

Admittedly, in this case, the Plaintiff, unequivocally and unambiguously exposed himself that he was not for getting the first agreement to sell as contained in Ex. Al enforced and to that effect, in Ex.A22 in the pre-litigation notice, he expressed his view. In such a case, I am at a loss to understand how the Plaintiff could be held that he has always been ready and willing to perform his part of the contract.

Here, the courts below au fait with law and au courant with facts, dismissed the prayer of the Plaintiff, warranting no interference in this second appeal.

I, therefore, hold that the substantial question of law No. 1 is decided to the effect that the suit was barred by limitation, warranting no interference in this second appeal.

Relating to the substantial question of law No. 2, the LA filed for impleadment by the Plaintiff in the suit instituted by the ninth Defendant, viz., O.S. No. 3007 of 1987, as against all the Defendants concerned for enforcement of a separate agreement to sell was dismissed and as against which, no action was taken by the Plaintiff.

The contention on the side of the Plaintiff that the earlier suit instituted by D9 in O.S. No. 3007 of 1987 should be treated as collusive and fraudulent one for the reason that the said agreement to sell involved therein, was not between the proposed purchaser and all the owners of the suit property and that the sale consideration therein was not Rs. Two lakhs but the collusive compromise was for Rs. One lakhs etc. In respect of his contention, he cited the decision of this Court reported in 2007 (1) CTC 399 Sargunam v. V.R. Jayasingh and Ors.. An excerpt from it would run thus:

The Appellant herein claimed his right under the sale agreement dated 03.12.1981. It is not in dispute that in O.S. No. 1062/75, altogether six tenants were arrayed as the Defendants, who have filed an application u/s 9 of the said Act, which was ordered as prayed for. Admittedly, no sale deed was executed in favour of the said six persons by their landlords. It is also not in dispute that all the said six persons have not executed the sale agreement dated 03.12.1981. Even in the said sale agreement, the delivery of possession to the Appellant was not found mentioned. The Appellant claimed that he is in possession of about 700 sq.ft. of land, whereas the report and the plan of the Advocate Commissioner, Exs. Cl and C2 disclose that the Appellant is in occupation of about 15'' x 14'' and the evidence of the Respondents 1 and 2 disclosed the same. In view of the above said fact that the possession was not delivered even under the sale agreement dated 03.12.1981, besides that it is not a valid one, since all the necessary parties are not there and the said agreement dated 03.12.1981 was also not proved by the Appellant by examined the vendors, scribe and the attesting witnesses, this Court is of the considered view that the possession of the Appellant is not legal. Before the lower Appellant court, the Appellant herein sought for permission to examine the vendor, who executed the sale agreement, dated 03.12.1981, as well as the attesting witnesses, which was rightly rejected on the ground that the Appellant did not explain as to why they were not examined before the Trial Court.

The first substantial question of law is concerned, admittedly no sale deed was executed by the landlord in favour of Gangadharan, Lakshmiammal and Vedavalli, however, the amount was deposited by them along with three other persons. It is not explained as to what is the contribution made by each member to the said deposit. It is needless to mention that the above said six persons are entitled to a share, of course, corresponding to the extent of their occupation. The right of the said three persons are not ascertained, hence, they are not competent to convey 700 feet or any extent, thus, the first substantial question of law is answered against the Appellant.

In so far as the second question of law is concerned, the Appellant has not examined the above said Gangadharan, Laxmiammal and Vedavalli or the attesting witnesses of the agreement dated 03.12.1981 and it is not valid, hence, the First Appellate Court is right in holding that Ex. Al, sale agreement dated 03.12.1981 is not true and valid, thus, the second substantial question of law is also ordered against the Appellant.

In the present proceedings, this Court cannot apply the aforesaid principle so as to hold that the previous judgment obtained by D9 is null and void for the reason that here the Plaintiff has not established his right to get specific performance of agreement to sell as found in Ex. Al enforced as held supra.

Over and above that what I would like to point out is that once the Plaintiff herein is not entitled to file a suit based on the first agree- ment, the question of getting set aside the judgment and decree in the previous suit O.S. No. 3007 of 1987 would not arise.

If at all the genuineness of the Plaintiff in getting Ex. Al specifically enforced is found proved, then only as a corollary, the question of setting aside the judgment and decree in O.S. No. 3007 of 1987 would arise. But the findings supra would speak to the effect that the Plaintiff did not approach the court with clean hands for getting Ex. Al enforced. Over and above that, as against the order passed in LA rejecting the prayer for impleadment in the suit O.S. No. 3007 of 1987 filed by the ninth Defendant also was not agitated before the higher forum.

The contention of the learned Counsel for the Plaintiff that the compromise decree passed in the said O.S. No. 3007 of 1987 was to be set aside could not be countenanced for the reason that the Plaintiff has got no locus standi to pray for the same as correctly pointed out by the trial court. The Plaintiff herein did not approach the court with clean hands. The relief of specific performance is a equitable relief and I recollect the maxim -"He who seeks equity must do equity and he who comes to equity must come with clean hands". The earlier decree in O.S. No. 3007 of 1987 is a compromise decree to which the Appellant/Plaintiff herein was not a party and he cannot be heard to contend that the said decree was a fraudulent one etc.

The Plaintiff who defrauded the District court as well as the State revenue and the Income Tax Department cannot be heard to contend that he is having a right to get specific performance of the agreement to sell as contained in Ex. Al.

The contention of the Plaintiff''s side that the sale deed emerged in the name of D10 as nominee of D9 and the subsequent sale deeds emerged in favour of D11 to D14 are all invalid, cannot be held as. valid for the reason that the doctrine of lis pendens cannot be pressed into service by the Plaintiff, who has got no locus standi to get specifically enforced Ex. Al.

The learned senior counsel for the Appellants/Defendants would correctly and convincingly, appropriately and legally submit that if at all the Plaintiff can establish his right to get the specific performance of Ex. Al enforced, then the question of his right to get the compromise decree emerged in O.S. No. 3007 of 1987 set aside would arise.

The contention on the side of the Plaintiff that the certified copy of the order in I.A. No. 17787 of 1989 in the O.S. No. 3007 of 1987 dated 02.02.1990 could not be obtained is totally untenable as Ex.A62 marked before the lower court would show that the Plaintiff obtained the certified copy from the court concerned. The order was passed by the court on 02.02.1990 in the said I.A. and the copy application was made only on 13.11.2003 and the copy was made ready on 10.12.2003.

In such a case, the contention of the Plaintiff that the certified copy was not given and hence he could not agitate before the higher forum is neither here nor there.

I would like to observe that if a litigant could not get the certified copy from the court, which passed the order within a reasonable time, then it is for the party to approach the higher forum in the judicial heirarchy and see that the court concerned issues the said order and such an excuse on the part of the Plaintiff is found to be a lame excuse. As such, the excuses as put forth on the side of the Plaintiff fails to carry conviction with this Court.

Simply because, the previous suit O.S. No. 3007 of 1987 ended in compromise between one of the co-owners of the suit property and the purchaser, the ninth Defendant herein, who was the Plaintiff therein along with other co-owners of the suit property ex facie such a judgment cannot be treated as void at the instance of the Plaintiff herein, who admittedly held to be a person whose conduct falls foul of Section 16 of the Specific Relief Act.

As such, the findings of both the courts below on that count also cannot be found fault with and I could see no perversity or illegality in the orders passed by both the courts below.

(i) Accordingly, the substantial question of law No. 1 is decided to the effect that both the courts below properly held that the suit for specific performance was barred by limitation.

(ii) The substantial question of law No. 2 is decided to the effect that there is no perversity or illegality on the part of both the courts below in rejecting the prayer of the Plaintiff for getting set aside the judgment and decree dated 26.03.1990 passed by the learned XI Additional Judge, City Civil Court, Chennai.

(iii) The substantial question of law No. 3 is decided to the effect that the Plaintiff was guilty of fraud as held by both the courts below and he is not entitled for specific performance.

S.A. No. 1009 of 2009:

The substantial questions of law 1 to 5 formulated in the aforesaid second appeal are taken up together for discussion as they are inter-twined and entwined with one Anr..

At the outset itself, I would like to refer to the following decisions cited on both sides relating to these points are concerned.

1997 1 LW 200 (DB judgment of this Court T. Periasamy Nadar and 5 Ors. v. T.D. Ramasubramaniam.

Though no plea was raised in the plaints based upon Section 22 of the Specific Relief Act, 1963 for refund of the advance amount in the event of refusal to grant a decree for specific performance, we specifically adjourned these appeals, after they were heard fully, to enable the Plaintiffs to amend the plaints to seek relief for refund of advance amount with interest. A specific order was also passed on 19.3.1996 in the following terms:

Though these appeals were herd and posted for judgment to be dictated in open court, it was at this stage noticed that there was no alternative prayer made for refund of the advance amount in the light of the provisions contained in Section 22 of the Specific Relief Act. In the event, this Court were to come to the conclusion that the Appellants are not entitled to specific relief, the decree for refund of the earnest money has to be passed as in these cases, admittedly, a sum of Rs. 16,000/- was paid in respect of each agreement as earnest money. As per Sub-section (2) of Section 22 of the Act of the Act in the event no such prayer is made in the plaint, the court shall at any stage of the proceedings, allow the Plaintiff to amend the plaint on such terms as may be just for including a claim for such relief. Therefore, without prejudice to the contentions of the Appellants/Plaintiffs and without expressing any view on the merits of me contentions advanced before us by both sides, we only adjourn these appeals to enable the Appellants to avail the alternative remedy by amending the plaint as contemplated in Sub-section (2) of Section 22 of the Specific Relief Act. Call on 2.4.1996." Again on 2.4.1996, the following order was passed and the matter was adjourned to 8.4.1996.

Even though an opportunity was given by the order dated 14.3.96 to me Plaintiffs Appellants to seek an amendment of the plaint in terms of the aforesaid order, no such applications are filed. Therefore, we proceed to deliver the judgment. Accordingly, post these appeals for judgment on 8.4.96.

Even on 8.4.1996, for this purpose, the matter was adjourned by passing the following order: "One of the Appellants T. Periaswami has appeared in person and also has sent a telegram. He has been told that if he wants to file an application seeking relief alternatively, without prejudice to the right already sought in the suit, u/s 22 of the Act, he can do so by filing an application on 3.4.1996. Finally call on 23.4.96 at 2.15 p.m.

Accordingly, these appeals have come up today for judgment. Even to this day also, the Plaintiffs have not filed applications seeking amendment to the plaints. No doubt, we could not have hesitated to grant a decree for refund of the advance amount in favour of the Plaintiff''s with interest, for which the Defendant had also no objection. In fact, he furnished the computation of the amount on the basis of the interest at the rate of 12% and 15%. But, in the absence of the amendment to the plaints, it is not possible to grant such a decree in the light of the provisions contained in Sub-section (2) of Section 22 of the Specific Relief Act, which specifically states that no relief under Clause (a) or Clause (b) of Sub-section (1) shall be granted by the court, unless it has been specifically claimed. The proviso thereto specifically provides that if the Plaintiffs has not claimed any such relief in the plaint, the court shall at any stage of the proceedings allow him to amend the plaint on such terms as may be just for including a claim for such relief. It is in the light of this provision contained in the proviso to Sub-section (2) of Section 22 of the Act, we adjourned these appeals more than once. It is unfortunate that the Plaintiffs have not taken advantage of it. In view of this, we only regret that we cannot pass a decree, even though the Defendant is ready and willing for such a decree being passed.

2010 (4) CTC 546 (SC) : 2010 5 L.W. 124 Vinod Seth v. Devinder Bajaj and Anr..

8.1) It is doubtful whether the collaboration agreement, as alleged by the Appellant, is specifically enforceable, having regard to the prohibition contained in Section 14(1)(b) and (d) of the Specific Relief Act, 1963. The agreement propounded by the Appellant is not an usual agreement for sale/transfer, where the contract is enforceable and if the Defendant fails to comply with the decree for specific performance, the court can have the contract performed by appointing a person to execute the deed of sale/transfer under Order XXI Rule 32(5) of the CPC (''Code'' for short). The agreement alleged by the Appellant is termed by him as a commercial collaboration agreement for development of a residential property of the Respondents. Under the alleged agreement, the obligations of the Respondents are limited, that is, to apply to DDA for conversion of the property from leasehold to freehold, to submit the construction plan to the concerned authority for sanction, and to deliver vacant possession of the suit property to the Appellant for development. But the Appellant/Plaintiff has several obligations to perform when the property is delivered, that is, to demolish the existing building, to construct a three- storeyed building within one year in accordance with the agreed plan, deliver the first and second floors to the Respondents and also pay a token cash consideration of Rs. 3,71,000/-. The performance of these obligations by Appellant is dependant upon his personal qualifications and volition. If the court should decree the suit as prayed by the Appellant (the detailed prayer is extracted in para 3 above) and direct specific performance of the "collaboration agreement" by Respondents, it will not be practical or possible for the court to ensure that the Appellant will perform his part of the obligations, that is demolish the existing structure, construct a three-storeyed building as per the agreed specifications within one year, and deliver free of cost, the two upper floors to the Respondents. Certain other questions also will arise for consideration. What will happen if DDA refuses to convert the property from leasehold to freehold? What will happen if the construction plan is not sanctioned in the manner said to have been agreed between the parties and the Respondents are not agreeable for any other plans of construction? Who will decide the specifications and who will ensure the quality of the construction by the Appellant? The alleged agreement being vague and incomplete, require consensus, decisions or further agreement on several minute details. It would also involve performance of a continuous duty by the Appellant which the court will not be able to supervise. The performance of the obligations of a developer/builder under a collaboration agreement cannot be compared to the statutory liability of a landlord to reconstruct and deliver a shop premises to a tenant under a rent control legislation, which is enforceable under the statutory provisions of the special law. A collaboration agreement of the nature alleged by the Appellant is not one that could be specifically enforced. Further, as the Appellant has not made an alternative prayer for compensation for breach, there is also a bar in regard to award of any compensation u/s 21 of the Specific Relief Act.

2005 1 LW 653 (SC) Shamsu Suhara Beevi v.G. Alex and Anr.

Counsel for the Appellant strenuously contended that the High Court has misunderstood the scope of Section 21 of the Act According to him, compensation for breach of agreement of sale either in addition to or in substitution of the performance of the agreement cannot be granted unless the Plaintiff claims such compensation in his plaint. Since the Respondents had failed to claim the compensation either in the original plaint or by amending the plaint at a subsequent stage during the pendency of the said proceedings as provided u/s 21(5) the Respondents were not entitled to any compensation for breach of agreement of sale even if there was such a breach. It was further contended that the learned Single Judge committed a factual error in observing that in Purushothaman (supra) the plaint had not been amended in terms of Section 21(5) of the Act. According to him, in Purushothaman (supra) the plaint had been amended to claim the relief of compensation. That the sum of Rs. 3,09,093/- towards the cost in the suit could not be included while working the amount of compensation under Sub-section (5) of Section 21. Such costs could be recovered by the Respondents by filing an execution application for recovery of the cost and the same could not be recovered as a part of compensation payable in addition or in substitution of the relief of specific performance. Counsel appearing for the Respondents controverted the submission made by the counsel for the Appellant and supported the findings recorded by the High Court.

Section 21 of the Act reads:

Power to award compensation in certain cases.- (1) In a suit for specific performance of a contract, the Plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.

(2) If, in any such suit, the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the Defendant, and that the Plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

(3) If, in any such suit, the Court, decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the Plaintiff it shall award him such compensation accordingly.

(4) In determining the amount of any compensation awarded under the section, the Court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872 (9 of 1872).

(5) No compensation shall be awarded under this section unless the Plaintiff has claimed such compensation in his plaint:

Provided that where the Plaintiff has not claimed any such compensation in the plaint the Court shall, at any stage of the proceeding, allow him to amend the plaint, on such terms as may be just, for including a claim for such compensation.

Explanation: The circumstance that the contract has become incapable of specific performance docs not preclude the Court from exercising the jurisdiction conferred by this section.

This Section corresponds to Section 19 of the Specific Relief Act, 1877. Sub-section (1) reenacts the law as contained in Clause (1) of the repealed Section 19 with suitable variations. The words "any person suing" have been substituted by the words "in a suit". The word "claim" has been substituted for the words "ask for" and the word "Plaintiff has been inserted before the words "performance of a contract". Sub-clause (2) reproduces verbatim the language of Clause 2 of the repealed Section 19 with the alteration that the word "such" has been prefixed before the word "compensation". Sub-section (3) corresponds to Clause (3) of the Section 19 of the repealed Act. There is no modification in this Sub-section. Clause (4) of Section 19 of repealed Act has been substituted by the new Sub-section (4) of Section 21. It provides the mode and manner of determining the amount of compensation under this Section. It lays down the principle which would govern the determination of the award of compensation and provides that the Court shall be guided by the principles specified in Section 73 of the Contract Act, 1872 while determining the amount of compensation. Sub-section (5) of this Section is new. It provides that the compensation under this Section shall not be awarded unless the Plaintiff has claimed it in the plaint. An important rider has been attached to this sub-clause which is to the effect that the Court shall, at any stage of the proceedings, permit the amendment of the plaint to enable the Plaintiff to include his claim for compensation on such terms, as the Court may deem fit. Explanation to this Sub-section re-enacts the language of the old explanation without any change. Illustrations u/s 19 have been deleted.

Reasons for recommending the changes have been given by the Law Commission of India in its Ninth Report on the Specific Relief Act, 1877. Since in the present case, we are considering whether the compensation could be awarded in a suit for specific performance without making a claim of compensation either in the original plaint or by amending the plaint during the course of the proceedings, we would refer to the suggestions made by the Law Commission for the enactment of such Clause (5) only.

Sub-sections (4) and (5) of Section 21 seem to resolve certain divergence of opinion in the High Courts on some aspects of jurisdiction to the award of compensation. The Law Commission in its 9th Law Commission Report dated 19th July, 1958 (pages 18 and 19) observed that there has beep a difference of judicial opinion as to whether the Court has the power to award compensation in a suit for Specific Performance, where the Plaintiff has not specifically prayed for it in the plaint. The Lahore High Court has taken the view in A.P. Pratinidhi Sabha v. Lahori 1924 (5) Lah. 509, that the Court has the power to award damages whether in substitution for or in addition to specific performance even though the Plaintiff has not specifically claimed it in the plaint. The Madras High Court took a contrary view in Somasundaram Chettiar Vs. Chidambaram Chettiar, and held that the Court cannot award damages in addition to specific performance in the absence of a specific claim for damages and a proper pleading stating why the relief of specific performance would be insufficient to satisfy the justice of the case and the amount which should be awarded. The Law Commission recommended that the view expressed by the High Court of Madras appeared to be based on the principle that there should be a proper pleading in every case. While it is proper that the Court should have full discretion to award damages in any case it thinks fit, one cannot, on the other hand, overlook the question of unfairness and hardship to the Defendant, if a decree is passed against him, without a proper pleading. The Commission accordingly recommended that in no case should compensation be decreed unless it is claimed by a proper pleading. However, It should be open to the Plaintiff to have an amendment, at any stage of the proceeding, in order to introduce a prayer for compensation, whether in lieu of or in addition to specific performance. Legislature accented the suggestions made by the Law Commission of India and accepted the view expressed by the High Court of Madras to the effect that that the Court cannot award compensation in addition to specific performance in the absence of a specific claim for damages and a proper pleading stating why the relief of specific performance would be insufficient to satisfy the justice of me case and the Plaintiff would not be entitled to compensation.

It is admitted position before us mat in the original plaint the Respondents did not claim compensation for the breach of agreement of sale either in addition to or in substitution of the performance of the agreement. Further the Respondents did not amend their plaint and ask for compensation either in addition to or in substitution of the performance of the agreement of sale. Sub-section (5) of Section 21 emphatically provides that no compensation shall be awarded u/s 21(5) unless the relief for compensation has been claimed either in the plaint or included later on by amending the plaint at any stage of the proceedings. The need to tile an execution petition did not arise as the Appellant executed the sale deed on 17.8.1999. We have perused the application filed by the Respondents. It is a simple application filed u/s 28(3) of the Act seeking permission to ascertain the extent of plaint schedule property by measuring the same with the help of Village Officer or by deputing an Advocate Commissioner and directing Defendant/Appellant to obtain ''no objection certificate'' from the Department of Income Tax, in addition the Respondents prayed that they be permitted to recover interest @ 12% towards loss of income on the sale amount of Rs. 45,66,385/- from 23.10.1997, i.e., the date of deposit till delivery of the possession of the property. Permission seeking to amend the plaint to include the relief of compensation for breach of the contract in addition to the specific performance has not been made. The relief was claimed u/s 28 and not u/s 21 of the Act. The High Court came to me conclusion that Section 28 would not be applicable to the facts of the case but granted the relief u/s 21 of the Act In our view, the High Court has clearly erred in granting the compensation u/s 21 in addition to the relief of specific performance in the absence of prayer made to that effect either in the plaint or amending the same at any later stage of the proceedings to include the relief of compensation in addition to the relief of specific performance. Grant of such a relief in the teeth of express provisions of the statute to the contrary is not permissible. On equitable consideration court cannot ignore or overlook the provisions of the statute. Equity must yield to law.

2010 2 LW 13 S.N. DB of Madurai Bench of Madras High Court B. Nemi Chand Jain and Anr. v.G. Ravindran.

Since we are constrained to affirm the decree of the trial Court, refusing to grant specific performance, only on the ground of hardship and the subsequent event, we could have considered the grant of compensation, as an alternative relief.... Damacherla Anjaneyulu and Another Vs. Damcherla Venkata Seshaiah and Another, referred to. u/s 21(5) of the Specific Relief Act, 1963, compensation cannot be awarded unless the Plaintiffs had claimed the same in their plaint. In the case on hand, the Plaintiffs failed to seek compensation either in addition to or in substitution of specific performance, as required by Section 21(1). Therefore, we are unable to grant a decree for compensation in favour of the Plaintiffs, despite our finding in their favour on three major issues viz., (i) that Ex.A-1 is an Agreement of Sale (ii)that they were always ready and willing to perform their part of the obligations and (iii) that the Defendants 4 and 5 were not bonafide purchasers.

As a matter of fact, even the decree granted by the trial court for refund of money with interest at 15% per annum on yearly rests, is doubtful of sustenance. This is due to the fact that there was no prayer for such an alternative relief in the plaint. u/s 22(1) of the Specific Relief Act, 1963, a person suing for specific performance is entitled to ask for additional and/or alternative reliefs of possession, partition or refund of advance money. But under Sub-section (2) of Section 22, no such additional or alternative relief can be granted by the Court, unless it was specifically claimed. Though the proviso to Sub-section (2) of Section 22 permits a Plaintiff to seek amendment at any stage of the proceedings, so as to include a prayer for such additional or alternative relief, the Plaintiffs in the present case did not choose either to seek such reliefs in the first instance before the trial Court or even before this Court by way of amendment. In the absence of a prayer for refund of the advance money as indicated in Section 22(1)(b), the tiral Court could not have granted a decree for refund of money with interest. But fortunately for the Plaintiffs, none of the Defendants have filed an appeal against the decree of the trial Court, taking advantage of Section 22(2). Even during the pendency of the appeal, no application for amendment was moved either to seek compensation under the proviso to Section 21(5) or to justify the decree for refund of money under the proviso to Section 22(2). Therefore, we are unable to grant any relief to the Plaintiffs, other than what has already been granted by the trial court.

(2010) 7 SCC 717 : 2010 4 L.W. 673 Laxman Tatyaba Kankate and Anr. v. Taramati Harishchandra Dhatrak.

Even though earlier there were some discordant notes here and there in laying down the law relating to the power of the court in ordering return of the advance amount and also in awarding compensation, in the absence of specific prayer as contemplated u/s 21(5) and Section 22(2) of the Specific Relief Act, 1963, now the law is settled in view of the available precedents. The relevant portion of the Specific Relief Act are extracted here under:

Section 21 - Power to award compensation in certain cases -

1.

2.

3.

4.

No compensation shall be awarded under this section unless the Plaintiff has claimed such compensation in his plaint.

Provided that where the Plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend me plaint on such terms as may be just, for including a claim for such compensation.

Section 22. Power to award compensation in certain cases -

1.

If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the Defendant, and that the Plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

-Provided that where the Plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.

Unless there is a specific prayer in the plaint or in the amended plaint, the question of ordering return of the advance amount or awarding compensation would not arise.

Hence, in such a case, ex facie and prima facie, the first appellate court while agreeing with the lower court in rejecting the prayer for specific performance, was not justified in simply ordering refund of the advance amount as well as in awarding compensation.

There is also one other defect, I could notice in the judgment of the first appellate court in passing such an order because the factual findings are against the Plaintiff. Once the court comes to the conclusion that the Plaintiff has not approached the court with clean hands, the question of awarding compensation by no stretch of imagination or even by phantasmagorical thoughts would arise. However, the first appellate court did choose to do so, warranting interference in this second appeal.

The reasoning found set out by the appellate Judge for return of the advance amount and for awarding compensation, as though the Defendants 1 to 8 are also responsible for bringing about a bad situation, in my opinion, was not sound, as in the absence of a prayer for such return of the advance amount and for awarding compensation, the same could not be ordered.

I recollect the following maxim:

ubi jus, ibi remedium and ibi remedium ubi jus, [Where there is a right, there is a remedy. It is said that the rule of primitive law was the reverse: Where there is a remedy, there is a right].

The Plaintiff must be entitled to get certain reliefs and in the absence of such entitlement, the appellate court was not justified in awarding certain reliefs in favour of the Plaintiff by finding fault with the Defendants'' conduct when the Plaintiff''s conduct itself was not above board.

(i) Accordingly, the substantial questions of law 1, 2 and 3 are decided to the effect that in the absence of the specific prayer in the plaint or in the amended plaint, the first appellate court was not justified in awarding compensation as well as ordering return of advance amount.

(ii) The substantial question of law No. 4 is decided to the effect that the first appellate court was not justified in awarding compensation and return of advance amount and after giving a finding mat the Plaintiff was not entitled to specific performance because of the fraud practised on the court by him.

(iii) The substantial question of law No. 5 is decided to the effect that in view of the ratiocination adhered to in deciding the aforesaid questions of law, the question of apportioning the amount by the first appellate court among the Defendants does not arise at all.

As such, I would like to decide the aforesaid questions of law in favour of the Appellants/Defendants and as against the Plaintiff.

In the result, the Second Appeal No. 1125 of 2008 is dismissed in toto and the Second Appeal No. 1009 of 2009 is allowed setting aside partly the judgment and decree of the first appellate court in awarding compensation as well as in ordering return of the advance amount. The judgment and decree of the first appellate court in rejecting the prayer for specific performance of Ex. Al is confirmed. In this factual matrix, there shall be no order of costs.