Gladys Devavaram vs S. Subbiah and K.S. Sundararajan

T. Mathivanan, J.—Being dissatisfied with the judgment and decree dated12.04.2006 and made in O.S. No. 17 of 2004 on the file of theLearned District Judge Nilgiris at Udhagamandalam, thefirst Defendant has come forward with this appeal afterinvoking the proviso to Section 96 of Code of Civil Procedure.

The facts which are absolutely necessary for the disposal of this appeal may be summarised as under.

The legal character of the parties to the suit need not be changed and may be as it is in the suit.

That on 10.04.1997, the first Defendant who is theAppellant herein had entered into an agreement for sale ofthe suit property with the second Defendant. She hadreceived a sum of Rs. 3 lakhs by cash on the date ofagreement and further a sum of Rs. 3 lakhs by way of a postdated cheque drawn on Canara Bank Aruvankadu bearingNo. 840871 dated 02.05.1997 towards advance of saleconsideration. The time for execution of the sale deed andpayment of balance of sale consideration was fixed on25.08.1997. The sale shall be in favour of the purchaseror his nominee.

At the time of agreement the Plaintiff was thetenant in the suit property under the first Defendant. Inthe meanwhile, the second Defendant had received a sum ofRs. 6 lakhs from the Plaintiff and assigned his rights underthe suit agreement in his favour. The Plaintiff hadtherefore, stepped into the shoes of the second Defendantunder the same terms and the first Defendant is aware ofthis fact and she had also consented to the assignment.The nominee clause comes fairly and squarely into operationin any event and therefore the first Defendant is bound tosell the suit property to the Plaintiff. The Plaintiff hadalways been ready and willing to pay the balance of saleprice and to perform his part of contract.

The assignment was reduced into writing in October1996 and the second Defendant had addressed to the firstDefendant about the assignment and he had No. objection tothe sale being made over in favour of the Plaintiff. Inthe second week of June 1997, the first Defendant hadattempted to forcibly evict the Plaintiff and the Plaintiffhad also sent a notice on 18.06.1997 calling upon her notto alienate the property to anyone else. In view of theagreement there is No. question of payment of any rent.

The Plaintiff had also filed a suit for injunctionon the file of the Learned District Munsif of Coonoor,against the first Defendant in O.S. No. 141 of 1997restraining eviction except by due process of law. Thefirst Defendant had filed a petition for eviction againstthe Plaintiff in RCOP. No. 33 of 1997 on the file of the RentController of Coonoor and along with that petition she hadalso filed a petition in I.A. No. 116 of 1998 under Section11(1), 11(3) and 11(4) of the Tamil Nadu Buildings Leaseand Rent Control Act for payment of rent and that petitionwas dismissed by the Rent Controller. The first Defendanthad also not appealed against the said order.

The suit agreement is in force and the time is notthe essence of contract. In an event, the development ofassignments in the proceedings of the court clearly showthat the time is not the essence of contract. Since theagreement mentions 25th August 1997, for the payment ofbalance and since the legal proceedings had intervened, thePlaintiff had issued a legal notice dated 10.08.2000 to theDefendant calling for the performance of the suitagreement. Since the agreement stipulates that the date ofpayment of balance is 25.08.1997, the Plaintiff had filed the suit before 25th August, 2000 and hence the suit is wellwithin the time and not barred by the Law of Limitation.The Plaintiff is ready to pay the balance of sale price ofRs. 11 lakhs and to perform his part of contract and tofinalise the sale deed in his name. He has also prayed forthe alternative relief as per the Specific Relief Act.

The first Defendant has contended in her writtenstatement that the suit is speculative and it is an abuseof process of the Court. As per the terms and conditionsof the sale agreement the second Defendant had agreed topay a sum of Rs. 5 lakhs towards sale consideration on30.06.1997 and to pay the balance of sale price within25.08.1997. At the request of the second Defendant thisDefendant had presented the cheque dated 02.05.1997 forcollection through her banker viz., Indian Overseas Bank,Coimbatore. But it was bounced back with an endorsementsaying that No. sufficient fund is available in the accountof the second Defendant to honour the cheque. The secondDefendant was not having fund to purchase the property. Asagreed, the second Defendant did not pay the sum of Rs. 5lakhs on or before 30.06.1997, which itself would go toshow that he had failed to perform his part of contract bynot paying the sale consideration as agreed and got the sale deed executed in his name at his expenses. Though thefirst Defendant had expressed her readiness and willingnessto perform her part of contract by executing the sale deed,the second Defendant was not able to pay the balance ofsale consideration and perform his part of the contract.Despite several communications and personal requests, thesecond Defendant had not chosen to pay the balance of saleconsideration. Ultimately, the first Defendant had sent atelegram and also a legal notice dated 01.08.1997 to thesecond Defendant cancelling the sale agreement dated10.04.1997 and forfeiting the advance amount paid.

It is true that at the time of the execution ofthe sale agreement the Plaintiff was a tenant in the suitproperty. The second Defendant had agreed to takepossession of the suit property from the Plaintiff andtherefore, the delivery of possession of the suit propertydoes not arise. The second Defendant himself had No. rightin the suit property, as the sale agreement dated10.04.1997 was cancelled and the advance amount wasforfeited. When there is No. such agreement in force, thesecond Defendant cannot assign the right which was not inexistence. The first Defendant is not aware of the allegedassignment and she had not consented to the assignment.The second Defendant ought to have sent a notice and informthe first Defendant about the alleged assignment. Theirconduct would go to establish that the Plaintiff incollusion with the second Defendant had created andfabricated the alleged assignment. The alleged factum ofassignment and alleged payment of Rs. 6 lakhs by thePlaintiff to the second Defendant is not known to the firstDefendant.

The first Defendant is not a party to theassignment and hence, the alleged assignment will not bindher. The sale agreement dated 10.04.1997, was cancelled on01.08.1997 and hence, the suit is hopelessly barred bylimitation. There is No. cause of action for the Plaintiffto file the suit against the first Defendant. Since thePlaintiff had not made payment to the first Defendant he isnot entitled to ask for alternate relief against thisDefendant. The relief sought for is defective and equallythe Plaintiff cannot enforce the agreement which wascanceled on 01.08.1997 against the first Defendant.

The second Defendant had not chosen to contest thesuit as he remained ex parte. Based on the pleadings ofthe parties viz., Plaintiff and the first Defendant, the trial Court had formulated as nearly as seven issues as detailed hereunder,

Whether the cheque dated 02.05.1997 issued by thesecond Defendant for Rs. 3 lakhs in favour of the firstDefendant was dishonoured by the bank when it was presentedfor collection;

Whether the contention that the second Defendantdid not comply with the terms and conditions of theagreement and committed breach of the same is correct ?

Whether the allegation of the first Defendant thatthe second Defendant was not ready and willing to performhis part of the contract is true ?

Whether the Plaintiff paid Rs. 6 lakhs to the second Defendant for getting the assignment of the agreement ?

Whether the contention of the first Defendant thatthe second Defendant''s right in the suit agreement isrescinded and such the Plaintiff is not entitled for anysuit claim is true ?

Whether the Plaintiff is entitled for specific performance as prayed for

To what relief ?

In order to substantiate their respective casesboth the Plaintiff and the first Defendant were put ontrial. The Plaintiff was examined as PW 1 and during thecourse of his examination Exs.A1 to A18 were marked. Onthe other hand the first Defendant was examined as DW 1 andduring the course of her examination Ex.B1 to B5 weremarked. On evaluating the evidences both oral anddocumentary the trial court had found the issues 1 to 3 asagainst the Plaintiff. Issue No. 4 and 5 were found infavour of the Plaintiff. While deciding the issue No. 6 and7 the trial Court had concluded that since the Plaintiffhad paid Rs. 6 lakhs to the second Defendant towards theassignment under Ex.A2 and the first Defendant had receivedRs. 3 lakhs only from the second Defendant on the date ofsuit agreement Ex.A1, the Plaintiff is entitled for therelief of payment of Rs. 3 lakhs from the first Defendantand the remaining balance of Rs. 3 lakhs from the secondDefendant with interest at the rate of 7.5% per annum fromthe date of suit till the date of realization with coststowards the alternative relief. The trial Court had alsofound that the Plaintiff is not entitled for the relief ofcharge over the suit property towards the alternativerelief as he had paid the court fee only u/s 42of the Tamil Nadu Court Fees and Suits Valuation Act 1955. Ultimately the trial court had dismissed the suit inrespect of the relief of specific performance and decreedthe suit in respect of the alternative relief asaforestated. Impugning the judgment and decree dated12.04.2006, the first Defendant stands before this Court byway of this first appeal.

Heard both sides.

From the grounds of memorandum of appeal and thesubmissions made by the learned Counsel for theAppellant/first Defendant and the learned Counsel for thefirst Respondent/Plaintiff, this Court regards that thisappeal could be disposed of on the following point.

Will the alleged assignation of suit sale agreementmade by the second Defendant in favour of the Plaintiff notbind the first Defendant as she had No. knowledge and notconsented for the same ?

Whether the second Defendant had No. right in thesuit property, to assign the suit sale agreement in favourof the Plaintiff ?

Is it correct to say that the suit itself is barred by the time ?

Point No. 1-In so far as the first point is concernedEx.A2 is the relevant document. It has been self styled asthe agreement dated 21.03.2000 appears to have beenexecuted between the second Defendant, Mr. K.S.Sundar Rajanand the Plaintiff, Mr. Subbiah. It refers the suit saleagreement Ex.A1 dated 10.04.1997. It recites that thesecond Defendant after consultation and discussion with thefirst Defendant Mrs. Gladys Devaram decided to assign,attorn and relinquish his claim in and over the schedulementioned property under the said Sale Agreement in favourof the Plaintiff, Mr. Subbiah. It also recites that thePlaintiff has paid a sum of Rs. 6 lakhs to the secondDefendant with the consent of the first Defendant,Mrs. Gladys Devaram, being the amount paid as advance by thesecond Defendant in respect of the schedule mentionedproperty. It also reads that in consideration of the saidsum of Rs. 6 lakhs paid by the Plaintiff to the secondDefendant, the second Defendant had issued a letter of noobjection addressed to the first Defendant Mrs. GladysDevaram for executing proper and valid sale deed in favourof the Plaintiff on receipt of the balance of sale price.

In the last paragraph it stipulates that thesecond Defendant undertakes and agrees to do all such acts and deeds as may be required to get a proper and valid saledeed executed to and in favour of the Plaintiff by thefirst Defendant Mrs. Gladys Devaram. From the averments ofthe document under Ex.A2, it creates a little confusion asto whether it is an agreement or assignation. It is seenfrom this document that prior to the making of assignation,the second Defendant had a consultation with the firstDefendant. It is also seen that the second Defendant hadissued a letter of No. objection and addressed to the firstDefendant Mrs. Gladys Devaram for executing a proper andvalid sale deed in favour of the Plaintiff on receipt ofbalance of sale consideration.

But this has been vehemently disputed by the firstDefendant. She has contended that the second Defendant hadno right in the suit property since he failed to performhis part of the contract by paying the balance of saleprice and get the sale deed executed at his expenses. Itis also her contention that the alleged assignment wasfabricated and brought about by the Plaintiff in collusionof the second Defendant; she has also contended that shehad not agreed nor even consented for the allegedassignment and payment of Rs. 6 lakhs by the Plaintiff infavour of second Defendant. It is pertinent to note here that the second Defendant remained ex parte even before thetrial Court. He did not opt to contest the suit. It isalso significant to note here that the execution of Ex.A2,the alleged agreement or assignment is left unproved as itis hanging on the question mark as to whether it is a validagreement or assignation ?

It is imperative on the part of this Court to makea mention here that on scrutinizing the document underEx.A2, it appears to this Court that the very averments ofthe documents itself would go to characterize that this isan incomplete document. In the second page at paragraphNo. 3 it is stated that the first party i.e., the secondDefendant after consultation and discussion with Mrs. GladysDevaram (D1) decided to assign, attorn or relinquish hisclaim in and over the scheduled mentioned property underthe said sale agreement in favour of his nominee the secondparty herein, (Plaintiff).

From the above context it could easily be inferredthat the second Defendant had decided to assign his claimover the suit property in favour of the Plaintiff, whom thesecond Defendant has described as his nominee. The words"decided to assign" will not convey the definite meaning that the agreement of sale under Ex.A1 was assigned infavour of the Plaintiff. If the suit sale agreement wasreally assigned in favour of the Plaintiff, then thePlaintiff would not have been called himself as nominee,instead, he should have been described as an "assignee".Obviously, Ex.A1 suit sale agreement is a bilateralagreement. Both the first Defendant being the owner of thesuit property and the second Defendant being the proposedpurchaser have signed in it. If any party to the saleagreement wants to assign her or his right or interestunder the sale agreement in favour of others, it shall notbe done or cannot be done without the knowledge and consentof the other party. If it is done so that it would becalled as an unilateral one. No. doubt the Plaintiff wasthe tenant under the first Defendant in respect of the suitproperty. This has not been denied by the first Defendant.It is apparent that the Plaintiff is not a party to thesuit sale agreement (A1). In so far as the Plaintiff isconcerned, he is an alien or a third party to the suit saleagreement.

The claim of the Plaintiff is that the secondDefendant had assigned his interest or his right accrued inpursuant to the suit sale agreement in his favour for the consideration of Rs. 6 lakhs towards the advance of saleprice. Though the document under Ex.A2 recites that thefirst Defendant was aware of the alleged agreement orassignment what ever may be the case, it has not beensubstantiated by any legal evidence. As discussed earlier,the Plaintiff ought to have summoned the second Defendantto establish this factum, or the first Defendant shouldhave been effectively cross-examined when she was standingin the box.

Nowhere in Ex.A2, it is stated that the secondDefendant had assigned his claim over the suit propertyunder Ex.A1 sale agreement in favour of the Plaintiff.When such being the case how it could be understood thatthe right or claim over the suit property under the saleagreement was assigned in favour of the Plaintiff - Meretaking a decision to assign does not mean that it was dulyassigned

Ex.B1 is the notice sent by the Plaintiff to thefirst Defendant through his counsel stating as if the firstDefendant had promised to sell the suit property for atotal sum of Rs. 17 lakhs in favour of the Plaintiff in themonth of December 1986. He had also stated that he was willing to purchase the suit property owned by the firstDefendant and that he was waiting for her promise topurchase the house property. He had also stated that if atall the first Defendant was willing to sell the property hemust be given first preference as he was the tenant in thesuit property. This notice has been admitted by PW1 in hisevidence. It shows that he expressed his willingness topurchase the suit property as he was the tenant in respectof the same.

Ex.A2 is the reply issued by the first Defendant''scounsel in which she had stated that at No. point of timeshe had agreed to sell the property to anyone as she waskeen on occupying the property herself. PW 1 has alsoadmitted that he had also entered into an agreement underEx.A2 with the second Defendant. of the agreements Ex.A1and Ex.A2, the suit has been instituted only on the basisof Ex.A1 suit sale agreement. Plaintiff has also fairlyadmitted that No. undertaking was given in Ex.A1 that thesuit property should be sold in his favour. Similarly, hehas also admitted in his cross-examination that noundertaking was given in Ex.A2 that the sale deed must beexecuted in his favour. It is pertinent to note here thatPW 1 has specifically admitted that the first Defendant had never agreed in Ex.A2 that she would execute the sale deedin respect of the suit property in his favour. He has alsoadmitted that in Ex.A1 it had been specifically stipulated,the mode of payments towards the balance of sale price, andthat he did not know anything about the communication whichwere exchanged between the first and the second Defendant.

In Ex.B5, letter dated 16.08.1999, addressed tothe first Defendant by the second Defendant D2 has statedthat as per the agreement, though he could not honour hiscommitment due to various reasons beyond his control, hewas ready to complete the deal as early as possible. Hehad also asked D1 to get the income tax clearancecertificate so as to enable him to effect the payment andget the property registered. The contents of the letter,Ex.B5 goes to establish that after entering into the saleagreement under Ex.A1, he was not ready to pay theremaining sale price and got the sale deed registered inhis favour. When questioned about Ex.B5, PW 1 has deposedthat he did not know about this letter. PW 1 has alsoanswered that he did not know about the details ofcancellation of Ex.A1 sale agreement by the first Defendantafter forfeiting the advance amount of Rs. 3 lakhs. Thecancellation of suit sale agreement under Ex.A1 and forfeiting of the advance amount of Rs. 3 lakhs will be discussed in detail in point No. 2.

It is pertinent to note here that PW 1 hascategorically admitted that, it is correct to state thatsince the second Defendant had failed to act in accordancewith the norms and conditions stipulated under Ex.A1, itwas cancelled duly by the first Defendant. Surprisingly,the Plaintiff has stated in his cross-examination that onlyon the instruction given by the first Defendant, he hadparted with a sum of Rs. 6 lakhs to the second Defendant.But he has miserably failed to establish this fact.Neither in the advocates notice under Ex.A9, nor in theplaint or in his chief examination, PW 1 has stated thisfact. For the first time he has come forward to say thatonly on the instruction given by the first Defendant he hadparted with Rs. 6 lakhs to the second Defendant for the suitsale agreement assigned in his favour.

Admittedly, the second Defendant was not called tosubstantiate this fact by the Plaintiff. On a cursoryperusal of Ex.A9, Advocates Notice, dated 10.08.2000, ithas been stated that the sale agreement was assigned in favour of the Plaintiff by common consent.

It is pertinent to note here that in so far thiscase is concerned, the Plaintiff, first Defendant and thesecond Defendant are placed in triangular points. In thefirst point i.e., On the top D1 is placed, and on the leftpoint D2 is placed whereas, the Plaintiff is placed on theright point. From the case of the Plaintiff, this Courtunderstands that the Plaintiff was already in occupation ofthe suit property under the first Defendant, in thecapacity of tenant. He had been demanding the firstDefendant to sell the property to him for which the firstDefendant was not willing. But any how, the Plaintiffwanted to achieve his goal. The second Defendant hadapproached the first Defendant and got her acceptance tosell the property in his favour and therefore, he alongwith the first Defendant entered into the suit saleagreement. As seen from Ex.A1, Rs. 6 lakhs was giventowards the advance for the total sale consideration ofRs. 17 lakhs of which Rs. 3 lakhs was given in cash and theother Rs. 3 lakhs was given by way of a post dated chequedated 02.05.1997 and when the cheque was presented it wasdishonoured. But there is No. reference to show that thecheque amount was paid back to the first Defendant.Therefore, as per the case of the Plaintiff, a sum of Rs. 3lakhs alone was given in cash to the first Defendant asadvance. The Plaintiff in order to achieve his goal hadapproached the second Defendant and it is alleged that hehad parted with Rs. 6 lakhs to the second Defendant and gotthe suit sale agreement assigned in his favour. Though thePlaintiff had stated in his notice, that the suit saleagreement was assigned in his favour by a common consent,there is No. legal proof available to establish that thefirst Defendant had given consent to the second Defendantto assign his right under the suit sale agreement in favourof the Plaintiff.

In so far as the civil proceeding is concerned,the proof a fact which is said to be in existence is verymuch essential. Ex.A3, is the letter dated 19.05.2000,which appears to have been addressed to the first DefendantMrs. Gladys Devaram by the Plaintiff Mr. Subbiah, in which itis stated that he had sent his co-brother and his nephew toCoimbatore, to pay the balance of sale price of Rs. 7 lakhsto the first Defendant and to call upon her to execute thesale deed in respect of the house, and that he was put tounderstand that the first Defendant had refused to acceptthe balance of sale price. When this letter, was confronted with the Plaintiff by the learned Counsel forthe first Defendant, in his cross-examination he has statedthat it was wrong to say that he had written the letter tothe first Defendant and even he went to the extent ofdenying his signature find a place in Ex.A3. In thisconnection, a question has arisen as to what acceleratedthe Plaintiff to mark this letter under Ex.A3 on hisbehalf. If this letter is against his case then why he hadopted to produce this letter. This would go to show hisdemeanour towards his case, and de-mean himself for havingdenied his own document.

Another document has been marked under Ex.A13, bythe Plaintiff, stating that the second Defendant hadaddressed another letter dated 02.05.1999 to the firstDefendant. In this letter it is stated that:

as discussed by Shri Subbiah, the tenant of yourhouse situated at No. 16, Applebe Road, Coonoor, Irelinquish my claim in the above property as Ihave received the entire payment advance to youfrom Shri Subbiah. I have No. objection at all inmaking the deal directly to Shri Subbiah and haveit registered in his name. The original saleagreement to this effect has been handed over to Shri Subbiah.

When this letter under Ex.A13, was confronted withPW1 he would state that he did not know any thing about thedetails of this letter which was said to have beenaddressed by the first Defendant by the second Defendant.

On the other hand, the first Defendant in herevidence(PW 1) has stated that without her knowledge andconsent, the second Defendant had assigned his claim underthe suit sale agreement over the suit property in favour ofthe second Defendant. Her evidence in Chief had withstoodthe test of cross-examination.

With regard to the subject matter of this casethis Court desire to refer Section 15(b) of The SpecificRelief Act 1963. It enacts as follows;

Section 15. Who may obtain specific performance - Except as other wise provided by this Chapter,the specific performance of a contract may beobtained by -(b) the representative-in-interest or theprincipal, of any party thereto: Provided thatwhere the learning, skill, solvency or any personal quality of such party is a materialingredient in the contract, or where the contractprovides that his interest shall not be assigned,his representative in interest of his principalshall not be entitled to specific performance ofthe contract, unless such party has alreadyperformed his part of the contract, or theperformance thereof by his representative-in-interest, or his principal, has been accepted bythe other party;

The scope of Section 15(b) is that the parties,besides, the actual contractors can sue for specificperformance of a contract. It lays down No. principlepeculiar to the remedy of specific performance. In generalit could be stated that the proper person to bring anaction is the person whose rights have been violated. Theremedy is either between the parties who stipulated what isto be done, or those who stand in their place. It may besaid that those (a) who entered into the contract, (b) whostand in their place, (c) who are interested in thesubject-matter, are, as a rule, the only proper parties tothe suit.

It is significant to note here that the proviso toClause (b) to Section 15 of the Specific Relief Act, 1963,contemplates that the specific performance of the contractmay be obtained by (1) their representative in interest or (2) the member of any party thereto. Similarly, theparties to a contract are primarily bound to perform theirrespective promises. No. doubt the expression "respectivein interest" or "any party thereto" as contemplated underSection 15(b) clearly includes the transferees andassignees from the contracting party in whose favour theright exists.

As rightly observed in Shyam Singh Vs. Daryao Singh (dead) by Lrs. and Others, "Such right of seekingspecific performance would, however, be not available interms of proviso below Clause (b) where the contractprovides that the ''interest shall not be assigned''."

On coming to the instant case on hand at page No. 2of Ex.A1, suit sale agreement the last paragraph recites asunder;

"The sale shall be executed in favour of the purchaser or his nominee."

The above expression will reflect the object andintention of the vendor i.e., the first Defendant that thesale deed shall be executed only in favour of the secondDefendant or his nominee. In this regard a question isarisen as to whether the second Defendant who is thepurchaser had acted against the intention of the vendori.e., the first Defendant by assigning his right orinterest what ever may be the case under the suit saleagreement in favour of the Plaintiff - The above wordingsi.e., the sale shall be executed in favour of the purchaseror his nominee would clearly show that the vendor (firstDefendant) was intending to sell the property only infavour of the second Defendant who is the purchaser or hisnominee and not in favour of the Plaintiff who is theassignee. Otherwise, these words would not have beenincorporated in the suit sale agreement.

It is pertinent to note here that the Plaintiffwas the tenant in respect of the schedule mentionedproperty under the first Defendant. This fact has beenadmitted by the Plaintiff. First paragraph of the suit saleagreement in page No. 2 recites that;

And whereas the vendor has agreed with thepurchaser to sell the respective property including all the fitting and fixtures more fullydescribed in the scheduled hereunder and to thepurchaser and the purchaser has agreed topurchase the said property free fromencumberances.

At page No. 3 in paragraph No. 4, it has been clearly stipulated that;"The purchaser shall get the possession of thescheduled property from the existing tenant livingat present on or after the sale deed."

These wordings also clearly reflect the intentionof the vendor (D1) that she was originally intending tosell the property in favour of the second Defendant and notin favour of the Plaintiff who was the tenant under D1 inrespect of the suit schedule property, at the time ofexecution of Ex.A1. It is also pertinent to note here thatthe Plaintiff in his evidence has clearly admitted that hehad approached the first Defendant and requested her tosell the property in his favour for which she had refused.The clear admission of PW 1 has also been ratified by Ex.B1dated 18.06.1997, which appears to have been issued to thefirst Defendant as well as the second Defendant by the Plaintiff through his counsel. In this notice thePlaintiff had admitted that he was the tenant under thefirst Defendant in respect of the suit property. It isalso stated that as if the first Defendant had promised tosell the said house property along with the land for a sumof Rs. 17 lakhs during the month of December 1996 to thePlaintiff and that he was also willing to purchase theproperty for the said price. It is also stated that he waswaiting (Plaintiff) for the promise of first Defendant topurchase this house property.

Keeping in view of the above discussions, it isthus clear that the first Defendant was intending to sellthe property only in favour of the secondDefendant(purchaser) or his nominee as stipulated in thelast paragraph of page 2, of the suit sale agreement.

It also requires specific mention that the suitsale agreement under Ex.A1 recites "that the expression''the purchaser'' shall unless excluded by or repugnant tothe context to be deemed to include her heirs, legalrepresentatives, administrators, assignors and executors.If it is left with this, we can understand that theexpression ''purchaser'' includes the meaning of assignee as stated above.

But in the last paragraph, at page 2 of Ex.A1, ithas been specifically stated that "the sale shall be executed in favour of the purchaser or his nominee." Herethe expression ''nominee'' has been carefully employed, byboth the parties to the contract i.e., D1 and D2.

In Black''s Law Dictionary, 6th edition, the expressions "assignee" and "nominee are defined as under;

(1) Assignee - A person to whom an assignment is made;grantee under uniform commercial code, assignee is subjectto all defenses which may be asserted against assignor byaccount debtor. Assignee in fact is one to whom anassignment has been made in fact by the party having theright. The assignee in law is one in whom the law veststhe right; as an executor or administrator. The expression"assignment" has also been defined as under;

The act of transferring to another all or part ofone''s property, interest or rights. A transfer or makingover to another of the whole of any property, real orpersonal, in possession or in action, or of any estate orright therein. It includes transfers of all kinds ofproperty (Higgins v. Monckton, 28 Cal.App.2d 723, 83 P.2d 516, 519), including negotiable instruments. The transferby a party of all of its rights to some kind of property,usually intangible property such as rights in a lease,mortgage, agreement of sale or a partnership. Tangibleproperty is more often transferred by possession and byinstruments conveying title such as a deed or a bill ofsale.

(2) Nominee - One who has been nominated or proposedfor an office. One designated to act for another in his or her place.

A form of securities registration widely used by institutional investors to avoid onerous requirements of establishing the right of registration by a fiduciary.

One designated to act for another as hisrepresentative in a rather limited sense; e.g., stock heldby brokerage firm in street name to facilitate transactionseven though customer is actual owner of securities. It isused sometimes to signify an agent or trustee. It has noconnotation, however, other than that of acting foranother, in representation of another, or as the grantee ofanother. Schuh Trading Company v. Commissioner of InternalRevenue, C.C.A.III., 95 F.2d 404, 411.

As defined in Black''s Law Dictionary the expression assignee and nominee are distinctively having there own meaning. These expressions cannot be clubbed with each other.

On coming to the present case on hand, D1 and D2who are the parties to the contract of sale under Ex.A1,have carefully put the words, that the sale shall beexecuted in favour of the purchaser or his nominee and notin favour of the "assignee". The very stipulation underEx.A1 has specifically barred the second Defendant who isthe purchaser, from assigning his right or interest underthe suit sale agreement in favour of others.

Since the second Defendant had assigned hisinterest under the suit sale agreement, without the expressconsent of the first Defendant, the first Defendant is notbound to perform her part of the contract.

Further, upon the true construction of thecontract of sale agreement under Ex.A1, it must be read asif it has been expressly agreed to be sold in favour ofsecond Defendant or his nominee and therefore, if at all the contract of sale is to be completed and the firstDefendant is under the obligation to execute the sale deedthat is to be executed in favour of the second Defendant.From the conduct of the second Defendant, by assigning hisinterest under the suit sale agreement in favour of thePlaintiff, he has violated and breached the contract asthe contract of sale is in terms confined to the secondDefendant only.

As has been interpreted u/s 2 of theIndian Contract Act 1872, "a contract is a bilateral transaction between two or more than two parties".

As per Section 2(h) of the Contract Act "Anagreement enforceable by law is a contract;

As per Section 2 (g) "An agreement not enforceable bylaw is said to be void."

In the instant case, the contract of sale effectedbetween the first Defendant and the second Defendant comesunder the amplitude of Section 2(g) as the second Defendanthimself is the reason in making the said contract void byassigning his interest in favour of the Plaintiff withoutthe express consent of the first Defendant.

It is the duty of the Court to see that No. partytakes undue advantage in seeking specific performance.There is also No. convincing evidence available on record toprove that the first Defendant ever consented for theassignment of the suit sale agreement in favour of thePlaintiff by D2. When there is No. express consent from thefirst Defendant, she cannot be forced to execute the saledeed in favour of the Plaintiff. Had she never agreed to,merely because it is very light and No. more ownerous thansomething which she agreed to.

Having regard to the discussions made above thisCourt is of considered view that the alleged assignation ofsuit sale agreement under Ex.A2 made by the secondDefendant in favour of the Plaintiff will not bind thefirst Defendant as she had No. knowledge and not consentedfor the same.

Point No. 2-On the date of sale agreement, i.e.,on 10.04.1997 the second Defendant had paid a sum ofRs. 3lakhs. He had also issued a post dated cheque dated02.05.1997 Bearing No. 840871, for the value of Rs. 3lakhs.In all, the first Defendant had received a sum of Rs. 6lakhs. This fact has also been admitted. But what thefirst Defendant would contend is that when the post datedcheque dated 02.05.1997, was presented for encashment itwas bounced back with an endorsement "insufficient funds"in the account of the first Defendant. She has alsoadmitted in her evidence that she did not proceed againstthe second Defendant with regard to the dishonor of thecheque. As per the claim of the first Defendant, she hadreceived only Rs. 3lakhs only from the second Defendant incash. With regard to the dishonor of cheque for the valueof Rs. 3lakhs, the second Defendant did not come to the boxto rebut the claim of the first Defendant. Even thePlaintiff had not chosen to summon the second Defendant todisprove this factum. Under this circumstance it cansafely be construed that the first Defendant had receivedonly Rs. 3lakhs.

Secondly, under Ex.A1, the following conditionshave been stipulated. The third sale price balanceamounting to Rs. 5lakhs shall be paid on or before 30th dayof June, 1997. The balance amount of Rs. 6lakhs shall bepaid at the time of registration of sale deed before theSub-Registrar of assurance Coonoor, in respect of thescheduled property on or before 25th August 1997. From the averments of Ex.A1, it is thus clear that apart from thepayment of Rs. 3 lakhs in cash and another post dated chequedated 02.05.1997 for the value of Rs. 3 lakhs, the secondDefendant shall have to pay a sum of Rs. 5 lakhs on orbefore 30.06.1997 and thereafter, he shall pay theremaining balance of Rs. 6 lakhs before the Sub-Registrar ofCoonoor at the time of registration of the sale deed.

According to the first Defendant, the secondDefendant had not come forward to pay the third sale priceamounting to Rs. 5 lakhs on or before 30.05.1997. In thisconnection the learned Counsel for the Appellant wouldsubmit that the second Defendant had failed to perform hispart of the contract by paying the balance saleconsideration as agreed and get the sale deed executed inhis name at his own expenses. He has also contended thateven in spite of several communications, and personalrequests, the second Defendant had failed to pay thebalance of sale consideration and therefore, the firstDefendant had sent a telegram and also a legal notice dated01.08.1997, to the second Defendant cancelling the saleagreement dated 10.04.1997 and forfeiting the advanceamount paid. The Xerox copy of the telegram, cancelling the suit sale agreement under Ex.A1 has been marked underEx.B4. DW 1 has also deposed in harmony with thesubmissions of her counsel. Even with regard to thecancellation of the suit sale agreement, the secondDefendant had not chosen to come and refute her evidence.

PW 1 has also admitted in his evidence that it istrue that on or before 30.06.1998, the second Defendant hadto pay a sum of Rs. 5 lakhs, towards the balance of saleprice and that the amount was not paid as agreed by D2. Further he has also admitted in his cross-examination thathe did not know as to whether the second Defendant hadacted in accordance with the terms of the sale agreementunder Ex.A1 and it is also correct to say that on28.07.1997, the suit sale agreement was cancelled by theDefendant as the second Defendant had not paid theremaining balance. In this regard the learned Counsel forthe first Defendant would contend that the second Defendantwas not having capacity to pay the balance of saleconsideration to perform his part of contract and got thesale deed executed in his favour. It is the contention ofthe first Defendant that after cancelling the suit saleagreement on 28.07.1997, the second Defendant had nointerest or any semblance of right over the suit property.It is also her contention that when there was No. agreementin force as on 21.03.2000, D2 could not assign the rightwhich was not in existence. The contention of the firstDefendant has also been left uncontested.

Under this circumstance this Court, on taking intoconsideration of the submissions made on behalf of thefirst Defendant and on considering the submissions made onbehalf of the Plaintiff has concluded that the secondDefendant had No. right in the suit property at the time ofassignation of suit sale agreement in favour of thePlaintiff under Ex.A2. This Court has also gone throughthe judgment of the trial Court and found that the trialCourt has failed to see that when the agreement dated10.04.1997 was not in force on 21.03.2000, the secondDefendant could not have assigned his right under the saleagreement in favour of the Plaintiff.

Point - 3 - It is substantiated that the firstDefendant had terminated the suit sale agreement as earlyas on 28.07.1997. Ex.B4, true copy of the telegram wouldratify this factum. This suit appears to have been filedon 24.08.2000. According to the first Defendant the suitis hopelessly barred as it has been filed beyond the period of limitation.

As evident from Ex.B4 true Xerox copy of thetelegram, the sale agreement was terminated on 28.07.1997. Admittedly the suit is filed on 24.08.2000.

Article 54 of the Limitation Act contemplatesthat; for filing a suit for the relief of specificperformance of a contract, the period of limitation isthree years. The period of limitation shall be reckonedfrom the date fixed for the performance, or of No. such dateis fixed, when the Plaintiff has notice that performance isrefused.

Even in spite of receipt of the telegram, thesecond Defendant did not come forward to reply. ThePlaintiff has also not chosen to summon the secondDefendant to disprove the fact that the suit is barred bylimitation.

On a perusal of Ex.A1, suit sale agreement theschedule of payment has been stipulated stage by stage.But this has not been followed by the second Defendant. Asadumbrated supra, the Plaintiff has also admitted the latches on the part of the second Defendant in hisevidence. Further the averments of E.A1 would go to showthe intention of the parties to the contract, that time isthe essence of the contract. Since, the second Defendanthad failed to adhered to the norms and conditionsstipulated in the suit sale agreement, the first Defendanthad proceeded to terminate the contract of sale andtherefore, as rightly observed in M.Mohar Ali v. Md. MamudAli reported in 1998 (3) CCC 328 (Gau) the suit itself isbarred by limitation and this has also not been consideredby the trial Court. Further the second Defendant was neverready and willing to perform his part of the contract. Onthe date of assignation of suit sale agreement i.e., underEx.A2 on 21.03.2000, the second Defendant was not havingany right or interest over the suit property so as toenable him to assign the suit sale agreement in favour ofthe Plaintiff.

Having regard to the findings given above and onanalysing the evidences both oral and documentary adducedon behalf of both sides this Court is of considered viewthat the appeal is liable to be allowed.

In the result the appeal is allowed. The judgment and decree dated 12.04.2006 and made in O.S. No. 17 of 2004 onthe file of the learned District Judge of The Nilgiris atUthagamandalam is set aside and the suit in O.S. No. 17 of2004 is dismissed with costs.