K. Majeed vs Pappa @ Madurambal and Natarajan

N.V. Balasubramanian, J.—This appeal is preferred against the judgment and decree rendered in a suit filed for specific performance which

was dismissed and the plaintiff who lost his case before the trial Court is the appellant herein.

The brief facts necessary for the disposal of the appeal are that on 9.7.1983 the plaintiff entered into an agreement of sale (Ex.A-1) with the first

defendant, who is the first respondent herein, for the purchase of suit property for a total consideration of Rs. 66,500/- and on the date of

agreement, the plaintiff has paid a sum of Rs. 10,000/- towards advance of the sale consideration. Under the terms of the agreement, the deed of

sale has to be executed within a period of 30 days. On 16.7.1983 the plaintiff has paid a further advance amount of Rs. 5,000/- and it is his case

that on the same date, namely, 16.7.1983, the period of agreement was extended for a further period of two months. The plaintiff has stated that

after 16.7.1983 he requested the first defendant to complete the deed of sale, but the first defendant was postponing the execution of the deed of

sale and hence, he filed the suit for specific performance. The second defendant was impleaded as a party on the basis that the first defendant was

trying to dispose of the property in favour of the second defendant, but the second defendant has taken a stand that there was no such proposal for

the purchase of the suit property from the first defendant.

The first defendant in her written statement has taken a stand that the time was the essence of the contract and the sale should be completed

within a period of thirty days from the date of agreement. Her case was that even though on 16.7.1983, a sum of Rs. 5,000/- was received by the

first defendant and an endorsement of acknowledgment (Ex.A-2) for the receipt of Rs. 5,000/- was made on the agreement of sale dated

9.7.1983, the extension of time for a period of two months from the date of payment of Rs. 5,000/- found in the endorsement was subsequently

inserted and it would amount to material alteration in the agreement as there was no such agreement between the parties for the extension of time

for completion of the contract by two months. The first defendant has also raised a plea that the plaintiff was not ready and willing to perform his

part of the contract. The trial Court on the basis of evidence dismissed the suit and against the judgment and decree, the present appeal has been

preferred.

Mr. V. Raghavachari, learned counsel for the appellant submitted that the learned Subordinate Judge was not correct in holding that the period

of agreement was not extended by two months in Ex.A-2. He referred to Ex.A-2 and submitted that it is clear from Ex.A-2 that time was

extended by two months and the first respondent has signed below the endorsement and when the document itself has been produced, there is no

necessity of further proof to substantiate the recitals in Ex.A-2. Learned counsel also submitted that the contents of the endorsement have been

written in the same ink and there are no suspicious circumstances to show that the last line of the said endorsement providing for the extension of

time by two months was inserted later. We are unable to accept the submission of Mr. V. Raghavachari, learned counsel as the first defendant in

her written statement has taken a definite stand that the words in Ex.A-2 extending the period of agreement by two months were inserted

subsequently and there was no agreement between the parties for the extension of time by two months. We are of the view that when there is a

specific denial by the first defendant, the plaintiff should establish that the time for performance was extended by two months. However, the plaintiff

has not chosen to examine any one of the witnesses of the agreement or even the scribe who wrote the endorsement. Another aspect of the matter

is that in the notice issued by the plaintiff dated 8.8.1983 (Ex.B-1), which was subsequent to the endorsement dated 16.7.1983 in Ex.A-2, there

was no reference to the extension of time for performance of the contract by two months, though there was a reference to the payment of Rs.

5,000/- made on 16.7.1983. In the notice the plaintiff has stated other details, but there was a conscious omission that the time mentioned in the

original agreement was extended by two months. We are therefore of the view that the plaintiff has failed to establish that there was no addition in

Ex.A-2 for the extension of time for the performance of the agreement by two months.

The next submission of Mr. V. Raghavachari, learned counsel is that the first defendant has failed to prove that reply, Ex.B-2 was sent by the

first defendant and there is no postal seal found on the acknowledgment card. However, we are unable to accept the submission of the learned

counsel for the appellant for the reason that the document Ex.B-2 itself shows that a reply notice was sent to the plaintiff by registered post and

further, the endorsement in Ex.B-2 shows that it was refused to be received by the plaintiff. The plaintiff has admitted that the address given in

Ex.B-2 was his own and from the fact that the plaintiff had refused to receive the same, it must be taken that the reply notice was properly served.

Further, the advocate who had issued the reply notice Ex.B-2 was examined as D.W.2 and he also deposed that the reply notice in Ex.B-2 was

despatched to the appellant/plaintiff. In other words, there is evidence to show that the notice in Ex.B-2 was properly addressed; necessary

stamps were paid; and it was sent by registered post. Hence, it can be safely drawn that notice in Ex.B-2 was duly delivered and served when the

endorsement shows that it was refused to be received. The first defendant in the reply notice Ex.B-2 has taken a definite stand that the appellant

failed to comply with the terms of the agreement of sale and hence, he was cancelling the agreement. The reply notice was issued on 12.8.1983.

Therefore the submission of the learned counsel for the appellant that there is no evidence for the despatch of reply notice dated 12.8.1983 (Ex.B-

2) is not acceptable and it is rejected.

The next question that arises is whether the appellant has proved that he was ready and willing to perform his part of contract under the

agreement. We have already seen that the first respondent/first defendant in her notice dated 12.8.1983 in Ex.B-2, which is a reply to the notice

dated 8.8.1983 (Ex.B-1) has taken a stand that the agreement of sale was cancelled by him. The suit was filed on 4.8.1986 and there is no

evidence at all from the plaintiff/appellant to show that he was ready and willing to perform his part of the contract even after the cancellation of the

agreement by the first respondent/first defendant. We find that there is a complete inaction on the part of the appellant from the date of notice,

namely, 12.8.1983 till the suit was filed on 4.8.1986 and he has not taken any steps in furtherance of or to perform his part of the agreement.

There is also one another significant factor, namely, the conduct of the appellant himself. The appellant has taken the stand in the plaint that he

was ready and willing to perform his part of the contract. The plaintiff has stated that he has enclosed stamp papers purchased by him for the

execution of the deed of sale, but on perusal it is seen that stamp papers have not been enclosed along with the plaint. The appellant has taken a

stand that he was ready and willing to perform his part of the contract and was willing to deposit the balance of sale consideration. However, the

plaintiff was unable to deposit the balance of sale consideration and he filed an application before the trial Court in I.A.No.659 of 1986 for the

extension of time to pay the balance of sale consideration and the said application was dismissed. If really the appellant had the requisite money to

deposit the balance of sale consideration, there would have been no necessity for him to take out an application for extension of time to deposit the

balance of sale consideration. One another aspect urged by the learned counsel for the first respondent is that the appellant had entered into an

agreement of sale with one Seenivasa Sharma for the sale of a portion of the suit property on 10.7.1983, that is, next day after he entered into the

agreement of sale with the first respondent and received a sum of Rs. 7,000/- from the said Seenivasa Sharma as advance consideration. If the

appellant really had the money for the purchase of the entire property, he would not have entered into an agreement of sale with Seenivasa Sharma

even before the conclusion of sale in his favour. The appellant was not able to convey the property to Seenivasa Sharma which forced him to

institute a suit for the recovery of money which shows that the appellant did not have the money to pay to Seenivasa Sharma when the return of

money was demanded from him. Further, the plaintiff has not proved by any evidence that he had financial resources to discharge his obligations

under the agreement. It is no doubt true that the plaintiff need not produce the actual cash before the Court, but he should establish his means to

perform his part of the contract. As we have pointed out earlier, even after the reply notice dated 12.8.1983 (Ex.B-2) till the filing of the suit, there

is a complete inaction on the part of the plaintiff and there is no evidence at all to show his readiness and willingness to perform his part of the

contract. We hold that all the above factors would establish that the plaintiff has not proved that he was ready and willing to perform his part of the

contract.

Mr. V. Raghavachari, learned counsel for the appellant submitted that at least there may be a direction for the return of the advance money of

Rs. 15,000/- paid by the plaintiff. It is seen that there is no such prayer in the plaint for the return of advance money paid by the plaintiff. The

appellant has not taken steps for amendment of the plaint. Further, we find that there is a specific clause in the agreement of sale, Ex.A-1 that if the

plaintiff fails to perform his part of the contract within the time stipulated in the agreement, the advance amount would be forfeited and the

agreement would stand cancelled. In view of the specific clause found in the agreement of sale, we are not inclined to order for the return of the

amount of Rs. 15,000/- to the appellant.

Consequently, we hold that there is no error in the judgment and decree of the trial Court in refusing to grant the relief of specific performance to

the plaintiff which warrants interference by this Court. Accordingly, the appeal stands dismissed. No costs.