K. Ramasami vs Chinnammal and another

J.A.K. Sampathkumar, J.—This Second Appeal is filed against the Judgement and Decree dated dated 20.4.1993 made in A.S. No. 362 of 1992 on the file of the Court of Second Additional District Judge, Trichy in and by which the learned Second Additional District Judge allowed the appeal reversing the Judgment and Decree dated 30.6.1992 in O.S. No. 179 of 1986 on the file of the Subordinate Court, Karur. For the sake of convenience, the parties are referred as arrayed in the suit.

The brief facts of the case are as follows:

The suit property is owned and possessed by the defendants. On 6.8.1983, the plaintiff entered into an agreement with the defendants to purchase the suit property for a valuable consideration of Rs. 30,000/- per acre and paid a sum of Rs. 16,500/- as advance. Further, it was agreed that the suit property has to be measured by the defendants in the presence of the plaintiff and to be sold on the actual extent available in Bhoosthithi. The plaintiff has to pay the balance before the Sub-Registrar and take the sale deed at his cost. The time mentioned in the agreement is three months. But the defendants neglected to execute the sale deed as per the agreement in spite of repeated demand notice from the plaintiff. Hence the suit.

The defendants state as follows:

(i) It is true that the defendants agreed by the written agreement dated 6.8.83 to sell the property belonging to them at Rs. 30,000/- per acre to the plaintiff after receiving an advance of Rs. 16,500/- from the plaintiff either to the plaintiff or his nominee. The sale transaction should be completed within the stipulated time of three months i.e. on or before 6.11.1983. The time stipulated is the essence of the agreement. It is also agreed if the plaintiff fails to get the transaction completed as per the terms of the agreement within the said period, the plaintiff is liable to forfeit the advance paid to the defendants and also his right so get the sale from the defendants.

(ii) It has been specifically stipulated and agreed that time of performance of the agreement is the "essence of contract"

(iii) The defendants had been through out ready and willing to perform their part of agreement as per the terms and had been demanding performance from the plaintiff. But the plaintiff had been postponing his performance of his part of the agreement as he had not been able to secure necessary funds and no prospective persons came forward to purchase the property as there had been a fall in the prices of land in the locality subsequent to the date of agreement till the eve of the suit. Therefore, the suit is liable to be dismissed.

The plaintiff was examined as P.W. 1. Exs. A1 to All were marked on the side of the plaintiff to prove his claim. The second defendant was examined as D.W. 1. No document was marked on the side of the defendants to disprove the claim of the plaintiff.

The trial Court after analysing the evidence found that the plaintiff is entitled to the suit claim and accordingly, decreed the suit. Against which, the defendants filed an appeal in A.S. No. 362 of 1992 on the file of the District Court, Trichy and the same was allowed on 20.4.1993 setting aside the Judgment and Decree dated 30.6.1992 in O.S. No. 179 of 1986 on the file of the Subordinate Court, Karur. The present appeal is filed by the plaintiff against such finding.

Heard Mr. T.R. Rajagopalan, leaned counsel appearing for the appellant and Mr. G. Govindarajan, Learned Counsel appearing for the respondents.

Learned Counsel for the appellant relied on the various rulings cited by him coupled with the recitals of the agreement and submitted that the time is not the essence of the contract. Whereas the Learned Counsel for the respondents opposing the rulings cited by the Learned Counsel for the appellant and also recitals in the agreement coupled with the earlier transaction between the plaintiff and the defendants submitted that the time is the essence of contract.

The decisions cited by the leaned counsel for the appellant are as follows:

(i) N. Saraswathi Ammal v. Jayara Rao and 2 others (1998 (II) CTC 613)

(ii) Ranganatha Gounder v. Sahadeva Gounder and others (2004) 4 M.L.J. 112)

(iii) M/s. P.R. Deb and Associates Vs. Sunanada Roy,

(iv) P. Panneerselvan Vs. A. Baylis,

(v) Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs.,

(vi) P. Purushottam Reddy and Another Vs. Pratap Steels Ltd.,

I have gone through the said rulings. Principles laid down in the rulings are as follows:

(i) If the recitals in the agreement do not specify the actual extent of property, agreement holder is not entitled for the specific performance of the contract.

(ii) Nature and character of the transaction should be taken note of in each case to find out whether the time is the essence of contract or otherwise.

(iii) The relief of specific performance of the contract is discretionary relief and the agreement holder is not entitled for the relief before the Court as a matter of right.

(iv) When the terms of the agreement is ambiguous, the agreement holder is not entitled to the specific performance of the contract.

Bearing the principles referred above, in my mind, let me scan the evidence on record to find out whether the time is the essence of contract.

The main recital in the agreement, which was marked as Ex. A1 reads as follows:

On perusal of the recital, it is apparent that it is the duty of the agreement holder to take necessary steps to find out whether there was any encumbrance on the property or otherwise and also to take necessary steps for measuring the actual extent of land for sale to complete the sale transaction. In this case, the plaintiff has not discharged his burden as per the recitals of the agreement. He has not placed any record to show that he had obtained necessary encumbrance certificate for the completion of the transaction. Further, there is no evidence on record to show that the plaintiff called upon the defendants to measure the suit land to find out the actual extent of the land available for sale within three months from the date of the said agreement.

In this context, let me also look into the evidence of PW.1 to find out whether the time is the essence of the contract or otherwise.

The narration of the evidence would show that the plaintiff had two previous transactions with the defendants. In fact, the plaintiff made an application before the competent authority to measure the land referred under Exs. A5 and A6 before the completion of the transaction.

It is admitted by the plaintiff that he has not taken any steps by giving any petition to the concerned authority to measure the land for the completion of the sale transaction. There is no averment in the plaint that the plaintiff requested the defendants to measure the land within three months from the date of agreement whereas at the time of evidence, he has stated that he has requested the defendants to measure the land for the completion of the transaction before three months as contemplated in the said agreement. Any cart load of evidence without pleading is not admissible in law.

The evidence of PW.1 with regard to this aspect reads as follows:

It is admitted that the plaintiff did not issue any lawyer''s notice calling upon the defendants to measure the land for the completion of the sale within three months stipulated in the said agreement.

So, I am of the view that the evidence of the plaintiff in this regard has no bearing to sustain his claim in the absence of specific pleadings to that effect.

It is admitted by P.W. 1 that in case of default on his part in execution of contract, the defendants are entitled to forfeit the advance amount in their hands. Even as per the recitals in the agreement of sale, there is no specific area referred for sale. Though boundary for 90 cents of land referred in the agreement of sale, the said area was not curved out of the total area referred in the agreement of sale. Whether the sale is for 80 cents of land or for 90 cents of land is also not specified in the agreement clearly. It is evident that the lands already purchased by the plaintiff are not sold by him in entirety because of want of purchasers. That is the reason why the plaintiff has been postponing the present sale transaction. Though the said agreement was entered into on 6.8.1983, the present suit was filed only on 5.8.1986 i.e. on the last date of the period of limitation.

This attitude itself would show that the plaintiff was not prepared to purchase the suit property from the defendants. The conditions stipulated in the agreement were also not complied by the plaintiff. The sale transaction was failed only on the part of the plaintiff. Considering the nature of transaction and the conditions of contract between the parties and the earlier transaction between the plaintiff and the defendant would show that the time is the essence of the contract. So, I am of the view that the plaintiff is not entitled to the suit claim.

The lower appellate Court has also taken note of this point and rightly held that the plaintiff is not entitled for the suit claim and accordingly, dismissed the suit. I do not find any error, irregularity or impropriety in the order of the lower appellate Court. The finding of the lower appellate Court does not require any interference. Accordingly, the present appeal is dismissed. Parties have to bear their respective costs.