K. Vasanthakumari vs K. Nagappan

G. Rajasuria, J.—This Second appeal is focussed animadverting upon the judgment and decree passed in A.S. No. 68 of 2011 dated

23.12.2011, on the file of the IV Additional Subordinate Judge, Coimbatore, confirming the judgment and decree passed in O.S. No. 1363 of

2007 dated 28.04.2011 on the file of the II Additional District Munsif Court, Coimbatore. The parties are referred to hereunder according to their

litigative status and ranking before the trial Court.

The epitome, and the long and the short of the relevant facts absolutely necessary for the disposal of this Second Appeal, would run thus:

(a) The respondent/plaintiff filed the suit for specific performance of the agreement to sell in respect of an immovable property mainly on the ground

that an agreement to sell dated 11.12.2005 emerged between the plaintiff and the defendant; whereupon the latter agreed to sell in favour of the

former the immovable property described in the schedule of the plaint for a sale consideration of Rs. 45,000/- (Rupees forty five thousand only)

and out of that, a sum of Rs. 10,000/- (Rupees ten thousand only) was paid as advance stipulating three months'' time for payment of the remaining

sale consideration. However, things did not get fructified; whereupon another agreement emerged on 17.11.2006 more or less on the same terms

and conditions as in the earlier agreement stipulating three months'' period. No fresh advance was paid; the earlier advance of Rs. 10,000/- paid

itself was treated as the advance. It so happened that according to the plaintiff the defendant did not come forward to discharge the encumbrance

created by the defendant, the owner of the property in favour of the Co-operative Housing Society. Whereupon, the plaintiff issued the notice.

After exchange of notices, the plaintiff filed the suit.

(b) The defendant resisted the suit on various grounds contending that time was the essence of the contract; the plaintiff committed default in

performing his part of the contract; he should have been diligent enough in noting the encumbrance; and the principle of caveator emptor would be

applicable. Accordingly, he would pray for the dismissal of the suit.

The trial Court framed the relevant issues.

Up went the trial, during which the plaintiff/Nagappan examined himself as P.W.1 along with P.W.2/Ponnusamy and Exs. A1 to A10 were

marked; and the defendant/Vasanthakumari examined herself as D.W.1 and Exs. B1 to B3 were marked.

Ultimately the trial Court decreed the suit, whereupon the trial Court mandated the plaintiff to deposit the remaining sale consideration of Rs.

35,000/- (Rupees thirty five thousand only) in Court and directed the defendant to execute the sale deed.

Being aggrieved by and dissatisfied with the said judgment and decree of the trial Court, the defendant preferred the appeal, for nothing but to

be dismissed confirming the judgment and decree of the trial Court.

Challenging and impugning the judgments and decrees of both the fora below, this second appeal has been focussed on various grounds and

also suggesting the following substantial questions of law.

(a) Whether the respondent/plaintiff has established in evidence that he had been ready and willing to perform his part of the contract in the suit

praying for specific performance?

(b) Whether the prayer as made in the suit appreciates for specific performance without substantiating the agreement in respect of which the relief

is sought for is legally sustainable?

(c) Whether the respondent/plaintiff by reason of his conduct is disentitled to the discretionary and equitable relief of specific performance?

(d) Whether the Courts below are right in holding that the respondent was entitled to specific performance when the respondent has propounded

two agreements of sale dated 11.12.2005 and 17.11.2006 without giving any satisfactory explanation as to why there were two agreements of

sale, especially when the agreement of sale dated 17.11.2006 was not supported by any consideration?

(e) Whether the courts below are right in decreeing the suit for specific performance when it is the specific contention of the appellant that time was

the essence of the contract and there had been failure on the part of the respondent to complete the transaction within the time stipulated?

(f) Whether the courts below were right in granting the relief of specific performance when there had been unexplained delay on the part of the

respondent in even issuing communications or seeking for specific performance?

(g) Whether the respondent is entitled to the discretionary relief of injunction?

(Extracted as such)

The learned counsel for the defendant would pyramid his argument, which could succinctly and precisely be set out thus:

Within the period of three months, no notice was sent by the plaintiff to the defendant and the understanding was that within the said three months''

period, the plaintiff ought to have parted with the remaining sale consideration of Rs. 35,000/- (Rupees thirty five thousand only), so as to enable

the defendant to discharge the mortgage created by him in favour of the Co-operative Housing society, but the plaintiff failed to do so. As such, the

plaintiff committed default in performing his part of the contract and both the fora below failed to take note of the same.

At this juncture, I would like to call up the decision of the Hon''ble Apex Court reported in Union of India (UOI) Vs. Ibrahim Uddin and

Another, an excerpt from it would run thus:

Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of

facts or of law. In State Bank of India and Others Vs. S.N. Goyal, this Court explained the terms ""substantial question of law"" and observed as

under: (SCC p. 103, para 13)

13.... The word ""substantial"" prefixed to ''question of law'' does not refer to the stakes involved in the case, nor intended to refer only to questions

of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ''Substantial

questions of law'' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as

between the parties...... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A

question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law...... There

cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.

(Emphasis added)

A mere running of the eye over the above precedent would connote and denote, exemplify and demonstrate that unless there is any substantial

question of law is involved, the question of upsetting the finding of the court below would not arise. It has to be seen as to whether there was any

failure on the part of the plaintiff in performing his part of the contract. Both the fora below adverted to the factual scenario as stood uncontained

and unveiled by the oral and documentary evidence that the plaintiff was astute in pursuing the case; whereas, the defendant was not at all diligent

in discharging the mortgage. The question of pressing into service the principle, caveator emptor does not arise. In the second agreement to sale,

itself there is a clause found specified to the effect that the owner of the property, namely the defendant should discharge the mortgage and free

from encumbrance he should sell the property. Even in the reply notice, the versions were not to the effect that he was expecting the plaintiff to pay

money for discharging the loan. However, he would take a plea quite antithetical to his own commitment in the agreement. The trial Court also au

fait with law and au courante with facts referred to the factum of the plaintiff having had enough money in his Bank account during the relevant

period, so to say, between 15.02.2007 and 03.04.2007 and as such adhering to the mandates as contained in Sections 16 and 20 of the Specific

Relief Act, the trial Court decided the lis and the appellate Court also correctly confirmed it, warranting no interference in the Second Appeal. As

such, I am of the view that there is no perversity or illegality in the judgments and decrees of both the Courts below. Accordingly, this Second

Appeal is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.