G.Sunil Panickar vs Mrs. G.N.Gomathy, & Anr.

S.

No",Exhibits,Date,Description of documents

1.,P-1,04.3.2010,Original Agreement of Sale entered into between the plaintiff and the defendants

2.,P-2,-,"Photo copy of the petition and affidavit filed in I.A.No.10654/2013 in O.S.No.11137 of 2010, City Civil Court,

Chennai

3.,P-3,01.4.2013,Photocopy of the legal notice sent to the plaintiff

4.,P-4,-,Letter with original courier receipt

5,P-5,-,"Photocopy of the interim order order passed in I.A.No.17331 of 2010 in O.S.No.11137 of 2010 by the City Civil

Court, Chennai

6,P-6,,"Certified copy of the judgment passed in OS.No.11137 of 2010, referred to in para 6 of the proof affidavit

,,,

,,,

7,P-7,,Certified copy of the decree granted in the said suit.

aforementioned suit. These facts are not disputed.,,,

It is to be noted that the condition set out in the agreement to obtain Release Deed by the 1 st defendant from one of his son is unenforceable,,,

on the parties to the document. Ex.P1 clearly shows that only the 1 st defendant is the owner of the property. Title and other aspects are admitted,,,

by the parties to the agreement. The plaint pleadings also show that as if at the end of 2010, the plaintiff was ready to purchase the property even",,,

without Release Deed being obtained from one Ravindran, the son of the 1 st defendant. Para 6 of the plaint, clearly shows that the plaintiff has",,,

relinquished the condition set out in the agreement, i.e., obtaining Release Deed from the said Ravindran.",,,

In the above background, now it has to be analysed as to whether the plaintiff was ready and willing to perform his part of the contract from",,,

the very beginning. Though a sum of Rs.20,00,000/- was paid as advance on the date of agreement, the plaintiff has not made any attempt to get",,,

the so called Development Power of Attorney Deed from the 1 st defendant immediately. Though it is contended by the plaintiff that only because,,,

of the interim order passed by the VI Assistant City Civil Court in O.S.No.11137 of 2010, the defendants could not execute the Sale Deed and",,,

they requested further time, it is to be noted that in Ex.P1 even though time limit was not fixed, the condition was imposed on the 1 st defendant to",,,

get the Release Deed from her son within 7 days and thereafter the 1 st defendant has to execute the Development Power of Attorney Deed. The,,,

above conditions clearly indicate that the parties intended to complete the sale transaction within the reasonable time. Admittedly, the suit in",,,

O.S.No.11137 of 2010 was filed before the VI Assistant City Civil Court, at the fag end of 2010 whereas Ex.P1, agreement was entered on",,,

04.3.2010. Till the filling of such suit, the plaintiff has not demanded the defendants to execute the Development Power of Attorney Deed in his",,,

name. No steps whatsoever have been taken in this regard.,,,

It is further to be noted that the Release Deed cannot be normally obtained by any person from the other co-sharer by compulsion, therefore,",,,

the condition imposed by the plaintiff clearly indicate the impossibility of executing such contract. Further, in the suit for specific performance, it is",,,

for the plaintiff to establish that he was always ready and willing to perform his part of the contract. At any event, the plaintiff himself at para 6 has",,,

stated about his willingness to purchase the property without obtaining Release Deed from one Ravindran. The plaintiff has made such a decision,,,

only at the fag end of the year 2010 and till such time, he has not taken any steps to prove his willingness to purchase the property without",,,

obtaining the Release Deed. The plaintiff ought to have shown his readiness and willingness to perform his part of contract from the date of,,,

agreement itself.,,,

Further, the plaintiff having asserted that only the 1 st defendant is the owner of the property, he ought not have waited till the end of 2010, i.e,",,,

till the filing of the suit by the son of the 1st defendant. That apart, the plaintiff having come to know that said Ravindran has no right over the suit",,,

property ought to have filed an impleading application immediately after the filing of the suit by the son of 1st defendant, But, he has filed an",,,

application to implead himself in the said suit only at the fag end of trial, which could be seen in Ex.P2. Ex.P2, affidavit filed by the plaintiff in the",,,

impleading petition clearly indicate that for the first time, he was taking such defence that the said Ravindran has no right over the suit property.",,,

That being the case, the plaintiff''s contention before this Court that he was waiting till 2013 due to the pendency of the aforementioned Civil suit",,,

cannot be countenanced at all. Of course, there was an injunction against the defendants for sale of the property in the aforementioned suit. But the",,,

same came into force only at the end of 2010. Therefore, before that, the plaintiff could have taken some steps either to pay the balance sale",,,

consideration or to get the Development Power of Attorney Deed in his name as set out in the agreement. But he was keeping quite till the filing of,,,

the aforementioned suit. Except pleading in his plaint that he was ready and willing to perform his part of the contract, no evidence whatsoever",,,

produced to show that in between 04.3.2010 till the filing of the suit in OS.NO.11137 of 2010 at the end of 2010, the plaintiff had money in his",,,

hand to tender the balance sale consideration.,,,

Admittedly, the suit filed by the 1st defendant''s son was dismissed on 21.3.2013. Even if the plaintiff''s stand is accepted that he was waiting",,,

for the result of the suit as there was an injunction, it is not known why the plaintiff has not taken any steps to execute the sale deed even after the",,,

dismissal of the suit. The conduct of the plaintiff in this regard assumes significance in this case. It is pleaded by the plaintiff that though he has,,,

tendered the balance sale consideration of Rs. 60,00,000/- on 22.03.2010 itself, the defendants refused to accept the same and thereafter on",,,

24.3.2013, as the husband of the 2nd defendant threatened the plaintiff for forcible possession of the suit property, he sent a letter dated",,,

27.3.2013 once again tendering the balance sale consideration of Rs.60,00,000/-.",,,

In this regard, it is useful to refer Ex.P4, the letter said to have been written by the plaintiff on 27.3.2013. The above letter was addressed to",,,

the defendants 1 and 2. In the above letter, nothing is whispered about the alleged threat made by the 2nd defendant''s husband Muthuswamy. The",,,

alleged allegation that Muthuswamy started threatening to take forcible possession of suit property has been introduced in the plaint for the first,,,

time. This fact clearly indicate that the plaintiff in every stage has improved his pleadings only for the purpose of seeking relief for specific,,,

performance. Such improvement is also fortified in view of the other circumstances.,,,

It is the specific pleading of the plaintiff that on 27.3.2013 while sending a letter, he has once again tendered the balance sale consideration of",,,

Rs.60,00,000/- to the defendants. The above pleadings of the plaintiff is nothing but concocted only for the purpose of this case. The said specific",,,

pleading that on 27.3.2013 once again tendered balance sale consideration while sending the letter Ex.P4 itself is falsified by his own document. It,,,

is to be noted that though Ex.P4, letter was dated 27.3.2013, it was despatched through courier only on 05.4.2013. When the letter itself was",,,

despatched on 05.4.2013, the question of tendering Rs.60,00,00/- at the time of sending letter as pleaded in the plaint is highly improbable and the",,,

same clearly shows that the pleadings have been introduced only for the purpose of this case.,,,

That apart, no evidence, whatsoever produced by the plaintiff to show that he had ready cash to pay the balance sale consideration from the",,,

date of agreement. Not even iota of evidence is produced to prove the capacity of the plaintiff to pay the money. The plaintiff has not taken any,,,

steps to deposit the balance sale consideration even after the filing of the the suit in the year 2013 to till now. Of Course deposit of the balance sale,,,

consideration is not a mandatory one, as per section 16 (c) of the Specific Relief Act. But the conduct of the plaintiff in this case, clearly show that",,,

he has taken the plea that he was always ready and willing to perform his part of the contract only for the purpose of getting relief and not,,,

otherwise.,,,

It is further to be noted that the 1 st defendant''s son has also issued a legal notice dated 01.4.2013 claiming 1/5 shares in the suit property.,,,

Ex.P1 also clearly show that other legal heirs of the 1st defendant are also having right over the suit property. Merely because the property was,,,

registered in the name of the 1 st defendant, at the request of other legal heirs, cannot take away the rights of the co-owners. Even assuming that",,,

the same is not germane, for consideration in this suit, it is well settled that burden always lies on the purchaser/ plaintiff, who seek specific",,,

performance relief, to prove ready and willingness from the very beginning. As discussed above, even assuming that the suit filed by the 1 st",,,

defendant''s son restrained the defendants from selling the property, from the date of the contract till filing of the suit, the plaintiff has not shown any",,,

readiness and willingness to perform his part of the contract as agreed. Even after the dismissal of the suit in the year 2013, the plaintiff has not",,,

shown any readiness and willingness to perform the contract. The pleading of the plaintiff that he has tendered the balance sale consideration on,,,

two occasions is also found to be false. Further, to substantiate that he was ready and willing and he had the capacity to raise balance",,,

consideration at the relevant time, no scrap of paper is filed.",,,

It is also the contention of the plaintiff that he has taken possession of the suit property on the basis of the agreement Ex.P1. In this regard,",,,

when his evidence is carefully perused, he has admitted in the cross examination that even before entering Ex.P1 agreement, the defendants had",,,

handed over the possession. The inconsistent plea set up by the plaintiff with regard to handing over possession also clearly show that he has set up,,,

a false case, only in order to get the relief in his favour.",,,

The plaintiff in his evidence admitted that he is doing real estate business. P.W.2 is his wife. She has also stated in her evidence that the plaintiff,,,

is doing real estate business. Though it is the case of the plaintiff that since the defendants are neighbours, he often requested them to sell the",,,

property, in his cross examination, he has stated that the defendants are residing in the plaint address i.e. Apartment. He has also admitted that he",,,

was not aware when the defendant moved to the said address. That being so, the plaintiff''s contention that as he was a neighbour to the",,,

defendants, he frequently requested them to sell the property is also highly unbelievable.",,,

More over, Ex.P4, courier receipt, clearly show that the same has been prepared only for the purpose of the case. The specific pleadings that",,,

he has tendered the balance sale consideration of Rs.60,00,000/- on 27.3.2010 and the allegation with regard to the handing over possession on",,,

the date of the agreement are also found to be false. The plaintiff being real estate developers have waited all these years to grab the property by,,,

taking advantage of the litigation between the family members of the defendants. Suddenly, the plaintiff has filed the suit by contending that he is",,,

ready and willing to pay the remaining sale consideration. Even to infer that he was always ready and willing to perform his part of the contract, no",,,

documents, whatsoever filed to show that he had ready money at the relevant time. Further, no evidence available on record to show that he has",,,

the capacity to mobilise the remaining sale consideration. Therefore, taking advantage of the litigation between the defendants, without taking any",,,

steps to perform his part of his obligation, now the plaintiff cannot contend that he is ready and willing to perform his part of the contract. Besides,",,,

he has also pleaded a false case about the conduct of plaintiff forces this court to infer that he has not come to the court with clean hands to seek,,,

equitable relief. The particular pleading that he has tendered the amount of Rs.60,00,000/- on 27.3.2013 itself is fond to be false. The above",,,

conduct clearly show that he has not come to Court with clean hands and he has set up a false case. Therefore, this Court hold that ready and",,,

willingness on the art of plaintiff is not at all been established. Possession pursuant to the agreement is also not been established. Further, the",,,

question of limitation does not arise as the suit has been filed within three years and that there is no period fixed in the agreement. Since the plaintiff,,,

has not established the plea of readiness and willingness, the equitable relief cannot be granted. The issues are answered accordingly.",,,

Insofar as the judgments cited by the learned counsel for the plaintiffs are concerned, there is no dispute with regard to the proposition laid",,,

down in different contexts. In all the judgments principles are one and the same. But in the instant case, the readiness and willingness has not been",,,

established by the plaintiff. Therefore, the judgments cited by the learned counsel for the plaintiff are not applicable to the facts of the present case.",,,

In the result, the suit is dismissed. However, there shall be no order as to cost.",,,