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262 paragraphs · 5,312 wordsR. Mala, J.—This appeal has been arising out of the judgment and decree dated 29.06.2006 passed in O.S. No. 359 of 2004 on the file of
the Additional District Court (Fast Track Court No. 4), Coimbatore at Tiruppur.
The averments made in the plaint are as follows:
(i) The Plaintiff and the first Defendant entered into a sale agreement on 24.04.1998. The first Defendant agreed to sell the same to the Plaintiff for
Rs. 6,00,000/-. He received an advance amount of Rs. 5,00,000/-from the Plaintiff. The Plaintiff and the first Defendant have signed the agreement
and have also affixed their Left Thumb Impressions.
(ii) The balance amount of Rs. 1,00,000/-has to be paid within the period of 2 1/2 years and on such payment, the first Defendant has to execute
and register a sale deed for Rs. 6,00,000/-in favour of the Plaintiff/his nominee. The long period of 2 1/2 years was fixed for performance only to
enable the first Defendant to find alternative accommodation and to facilitate delivery of possession to the Plaintiff.
(iii) The Plaintiff was always ready and willing to perform his part of contract. Whenever the Plaintiff approached the first Defendant, he has given
an evasive reply. But he sold the same to the second Defendant on 08.03.2000. The sale deed executed in favour of the second Defendant is void.
So the Plaintiff issued a notice through his counsel on 05.08.2000. The first Defendant sent an interim reply dated 11.08.2000 through his counsel
with a false allegations and he sought for a xerox copy of the sale agreement dated 24.04.1998. So the Plaintiff once again sent the detailed reply
and rejoinder. Since the first Defendant again evaded to execute the sale deed, the Plaintiff has constrained to file a suit for specific performance
and alternatively for recovery of amount he paid as an advance and prayed for a decree.
The gist and essence of the reply statement filed by the Plaintiff is as follows:
The Plaintiff has never issued a notice on 05.02.2000 to the first Defendant through his Advocates Mr. Jayabalan and A. Ranganathan,
Coimbatore demanding repayment of a sum of Rs. 2,10,000/-. He also not aware of the alleged reply notice dated 03.03.2000. The notices are
only handy work of the first Defendant. The Plaintiff lives in Thiruchengode. It is unbelievable that the Plaintiff would have come down to
Coimbatore for issuing notice demanding repayment of money. In order to create a defence for a possible legal action, the first Defendant has
created the notice and reply. Hence, he prayed for a decree as prayed for in the plaint.
The gist and essence of the written statement filed by the 1st Defendant is as follows:
(i) The first Defendant never entered into a sale agreement with the Plaintiff. He sold the property to the second Defendant on 08.03.2000. After
that only, the Plaintiff fabricated the sale agreement. Now the suit property is with the possession and enjoyment of the second Defendant. After
receipt of the notice dated 05.08.2000, this Defendant has given a suitable reply notice on 11.08.2000. In the reply notice, this Defendant
requested the Plaintiff''s counsel to furnish a xerox copy of the sale agreement. But the Plaintiff issued a rejoinder and refused the Defendant''s
request. Even after receipt of the reply notice dated 11.08.2000, the Plaintiff came to know that this Defendant totally denied the execution of the
sale agreement. There was no necessity to issue final notice on 31.01.2001.
(ii) The Defendant was a subscriber in an unregistered chit run by the Plaintiff in the name and style of ""BHOOPATHY"" and he paid all chit
amounts to the Plaintiff and after that the Plaintiff has demanded interest from this Defendant for delayed payment and he refused to pay the interest
as claimed by the Plaintiff. At that time, the Plaintiff openly threatened the Defendant and challenged that he knows how to collect the interest
amount from this Defendant. Hence for illegal gain, after knowing that this Defendant has sold the said property to the second Defendant, the
Plaintiff has fabricated the alleged sale agreement dated 24.04.1998. The Plaintiff also set up one Haripadrinath, Thiruchengode and issued a
vexatious notice alleged that this Defendant has executed a promissory note on 09.10.1998 for Rs. 2,00,000/-and filed a insolvency petition
against this Defendant in I.P. No. 12 of 2000 before this Court. Hence, he prayed for dismissal of the suit.
The gist and essence of the additional written statement filed by the first Defendant is as follows:
Even before issuing the notice dated 05.08.2000, the Plaintiff has issued another notice dated 05.02.2000 through his Advocates Mr. Jayabalan
and Mr. A. Ranganathan, Coimbatore alleged that this Defendant has borrowed a sum of Rs. 2,10,000/-from the Plaintiff and for the said notice,
this Defendant has issued a detailed reply notice dated 03.03.2000 through his Advocate Mr. S. Ramamurthy, Tiruppur. These facts will clearly
prove that there was no sale agreement between the Plaintiff and this Defendant on 24.04.1998. Hence, he prayed for dismissal of the suit.
The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, has framed three
issues and considering the oral evidence of P. Ws.1 and 2 and D. Ws.1 and 2 and Exs.A1 to A12 and Ex.B1, decreed the suit as prayed for in the
plaint and granted two months time for execution of the sale deed. Against which, the present appeal has been preferred by the Appellant/first
Defendant.
After hearing the arguments of both sides counsel, the following points for determination are framed:
Whether the trial Court is correct in held that Ex.A1-sale agreement is true and genuine?
Whether the trial Court is correct in granting decree of specific performance instead of granting alternative prayer for recovery of amount
advanced?
Whether the judgment and decree of the trial Court are sustainable?
To what relief, the Appellant is entitled to?
Point No. 1:
(i) The learned Counsel appearing for the Appellant/first Defendant submitted that admittedly the suit property is belonging to the Appellant and he
never executed a sale agreement Ex.A1. So, Ex.A1 is not true and genuine document. The sale price fixed in Ex.A1 is not a prevailing market
value fixed on the alleged date of sale agreement Ex.A1. As per Ex.A1, the sale price has been fixed at Rs. 6,00,000/-and an advance of Rs.
5,00,000/-has been paid by the Plaintiff/first Respondent. But, why should he has taken 2 1/2 years time for payment of balance amount of Rs.
1,00,000/-for execution of the sale deed. The stamp paper in Ex.A1 was issued only in the year 1999, but the sale agreement is executed on
24.04.1998. So it is a fabricated document.
(ii)The Plaintiff/first Respondent has sought for an alternative prayer for recovery of advance amount he paid. In such circumstances, the trial Court
has erred in granting discretionary relief of decree of specific performance instead of decreeing the alternative prayer for recovery of an advance
amount.
(iii) To substantiate his arguments, the learned Counsel for the Appellant/first Defendant relied upon the decisions of Apex Court and this Court.
He also relied upon Ex.B1-a reply notice issued through his Advocate to the Plaintiff/first Respondent''s Advocate. In the said notice, he has not
mentioned the sale agreement and he has mentioned only promissory note. So the trial Court has not considered Ex.B1.
(iv)He culled out some portions of oral evidence of P. Ws.1 and 2 and D. Ws.1 and 2 and submitted that Ex.A1 sale agreement is forged one. He
further submitted that the suit is barred by limitation and hence he prayed for allowing the appeal.
(v)Per contra, refuting the same, the learned Counsel for the first Respondent/Plaintiff submitted that Ex.B1 was concocted for the purpose of this
case. If really Ex.B1 is true and genuine document, why should the original notice received by the Appellant/first Defendant is not produced before
the Court. So, D.W.2-Mr.S. Ramamoorthy, who is the Advocate for appellant/first defendant''s evidence is not trustworthy.
(vi)The first respondent/plaintiff is residing only at Thiruchengode. So there is no money transaction between the appellant/first defendant and first
respondent/plaintiff. Hence, there is no need to issue notice to the appellant/first defendant.
(vii) The additional written statement filed by the Appellant/first Defendant is only to escape from the liability of executing the sale agreement.
(viii) He further submitted that reason for giving a long period of 2 1/2 years for payment of balance amount of Rs. 1,00,000/-and for execution of
sale deed has also been pleaded in the plaint itself and the Plaintiff/first Respondent was always ready and willing to perform his part of contract.
(ix) As per the evidence, the value of the property has been accepted by him. So the trial Court has considered all the aspects in proper
perspective and decreed the suit. There is no illegality or infirmity in the judgment and decree passed by the trial Court and there is no delay in filing
the suit. Hence he prayed for dismissal of the appeal.
(x) To substantiate his arguments, he has relied upon the decisions of Apex Court and this Court.
The admitted facts are as follows:
(i) The suit property is absolutely belonging to the Appellant/first Defendant, which is a residential house property at Tiruppur. The Plaintiff/first
Respondent is doing vessel business. He is having Aluminium factory at Thiruchengode and residing at Thiruchengode.
(ii) The Appellant/first Defendant herein has raised a plea that the Plaintiff/first Respondent was running a chit transaction in the name and style of
Bhoopathi"", which was denied by him. In his cross, he has deposed that he knows the Appellant/first Defendant just 15 days prior to the
execution of the sale agreement Ex.A1 and he was introduced by one Palanisamy, who was examined as P.W.2. So this Court has to decide
whether the sale agreement Ex.A1 is true and genuine?
(iii) On perusal of Ex.A1, the stamp paper was purchased on the date of execution of the sale agreement (i.e.) 24.04.1998 and the stamp paper
was issued by the Treasury in the year 1998. So the arguments advanced by the learned Counsel for the Appellant/first Defendant that the stamp
paper was released by the Treasury only in the year 1999, does not merit acceptance.
(iv) Now this Court has to consider Ex.B1. Ex.B1 is an alleged reply notice given by the Appellant/first Defendant on 03.03.2000. Since the reply
notice was sent by him for the original notice dated 05.02.2000, which was allegedly issued by the Plaintiff/first Respondent, was not produced
before the Court. Furthermore, there is no document to show that the original of Ex.B1 has been served to the Plaintiff/first Respondent herein or
his counsel. The Appellant/first Defendant has not taken any steps to send for the original of Ex.B1 and copy of the notice mentioned in Ex.B1. He
has not given any notice to the first Respondent/Plaintiff to produce the document and he has not taken steps to issue summon to Mr.
Ramamoorthy, Advocate to produce the notice mentioned in Ex.B1 and original of Ex.B1. So I am of the view that Ex.B1 is not true and genuine
document and it was concocted for the purpose of the case.
(v) The learned Counsel for the Appellant/first Defendant submitted that he issued a detailed reply notice through his Advocate Mr. Ramamoorthy,
who was examined as D.W.2 before the Court. But he has not produced the original notice dated 05.02.2000 issued by the Plaintiff/first
Respondent through his Advocate Mr. Ranganathan and he has not taken any steps to examine Mr. Ranganathan to prove that he had issued a
notice mentioned in Ex.B1 dated 05.02.2000 on behalf of the first Respondent/Plaintiff herein. He has also not filed the acknowledgement card for
reception of the original of Ex.B1 by Mr. Ranganathan, Advocate.
(vi) D.W.2 is the Advocate Ramamoorthy, who stated in his deposition that he has issued a reply notice dated 03.03.2000 to the Advocate of the
Plaintiff/first Respondent. In his cross-examination, D.W.2 has fairly conceded that he does not know whether the original notice dated
05.02.2000 was issued by the Plaintiff/first Respondent. He further stated that he does not possess any document relating to the reply notice, since
notice has been issued five years before on the basis of the instruction given by the Appellant/first Defendant.
(vii) At this juncture, it is appropriate to consider the arguments advanced by the learned Counsel for the first Respondent/Plaintiff that in para-3 of
Ex.B1, he has stated that the present Respondent is stranger to the Appellant. Para-3 of reply notice Ex.B1 is stated as follows:
Our client says that your client is a stranger to him. He further says that he was not knowing anybody by name S. Murugadas in
Thiruchengode.
But whereas in para-6 of reply notice Ex.B1, it was stated as follows:
Our client was a subscriber in the auction chit conducted by one Mr. Ravi of Tiruchengode in the name and style of M/S. Bhoopathi. At the time
of bitting the chit, the said Ravi had obtained our client''s signatures in the blank promissory notes. Our client think that, your client is only lending
his name to the said Ravi to recover the balance chit amount from our client. If that being the case, kindly instruct your client suitably and further
instruct him to refrain from doing such acts.
But in para-8 of the written statement filed by the Appellant/first Defendant, which stated as follows:
This Defendant submits the truth that this Defendant was a subscriber in an unregistered chit run by the Plaintiff in the name and style of
BHOOPATHY"" and this Defendant paid all chit amounts to the Plaintiff and after that the Plaintiff has demanded interest from this Defendant for
delayed payment and he refused to pay the interest as claimed by the Plaintiff. At that time, the Plaintiff openly threatened this Defendant and
challenged that he knows how to collect the interest amount from this Defendant. Hence for illegal gain, after knowing that this Defendant has sold
the said property to the second Defendant, the Plaintiff has fabricated the alleged sale agreement dated 24.04.1998. The Plaintiff also set up one
Haripadrinath, Thiruchengode and issued a vexatious notice alleged that this Defendant has executed a promissory note on 09.10.1998 for Rs.
2,00,000/-and filed a Insolvency petition against this Defendant in I.P. No. 12 of 2000 before this Hon''ble Court and the same is pending.
So the above para-8 shows that the Appellant/first Defendant herein has made a contradictory statement one in the written statement and another
in the reply notice to escape from the clutches of law. So no reliance can be placed upon Ex.B1. So the arguments advanced by the learned
Counsel for the Appellant/first Defendant that Ex.B1 is genuine document is unacceptable one.
(viii) Furthermore, It is pertinent to note that Ex.A1 has not only contained the signatures, it has also contained Left Thumb Impressions of both the
parties to the agreement. If really the Appellant/first Defendant herein has not executed Ex.A1 and put his Left Thumb Impression, he could have
taken steps for sending the document to Forensic Department to find out whether Ex.A1 contained his Left Thumb Impression. But he kept quiet
all along.
(ix) Per contra, he raised inconsistent defence one in the reply notice and another in the written statement. In such circumstances, the arguments
advanced by the learned Counsel for the Appellant/first Defendant that Ex.A1 was never executed by him, does not merit acceptance.
(x) At this juncture, it is appropriate to consider the oral evidence of both the parties. In the cross-examination of P.W.1-the Plaintiff/first
Respondent, he has fairly deposed that P.W.2-one Palanisamy alone acted as broker and he introduced the Appellant/first Defendant to him.
Further he has stated that before entering sale agreement, the extent of the property was measured as 2,100 sq.ft. and its value was Rs. 7,00,000/-
. They fixed the sale price at Rs. 6,00,000/-and he paid Rs. 5,00,000/-as an advance. He has also given an explanation that why 2 1/2 years time
was given for payment of balance amount of Rs. 1,00,000/-for execution of the sale deed, after paying the major portion of Rs. 5,00,000/-. Since
the Appellant/first Defendant has intended to sell the house property, he wants to purchase another property and for vacating the building, he seeks
2 1/2 years time and the same was granted. P.W.2 has also corroborated the evidence of P.W.1.
(xi) Considering the cross-examination of P.W.2, there is no reason for discarding the evidence of P.W.2. While considering the oral evidence of
D.W.1-the Appellant/first Defendant in his cross-examination has fairly conceded that in the year 1998, the value of the house was only Rs.
3,00,000/-. In the year 2000 also, the value of the house was only Rs. 3,00,000/-.
(xii) Considering the evidence of P. Ws.1 and 2 and D.W.1, it is clearly proved that Ex.A1 is true and genuine document. The sale consideration
mentioned in Ex.A1 is correct and it is not an under valuation. D.W.1 himself admitted that in the year 1998, the value of the house was Rs.
3,00,000/-, but it was fixed at Rs. 6,00,000/-. He has received Rs. 5,00,000/-. The reason for giving 2 1/2 years time also mentioned. In such
circumstances, I am of the view that the trial Court has considered all the aspects in proper perspective and came to the correct conclusion that
Ex.A1 is true and genuine document.
(xiii) In Ex.B1, the Appellant/first Defendant has stated that one Ravi has conducted Bhoopathi chit fund and he is one of the subscriber. But
whereas in the written statement, he has stated that Bhoopathi chit fund has been conducted by the Plaintiff/first Respondent and the Appellant/first
Defendant is one of the subscriber. Since he has not paid the interest, Ex.A1 is concocted for the purpose of this case. Since there is contradictory
statement in the reply notice and written statement, the defence raised by the Appellant/first Defendant is unacceptable.
(xiv) Furthermore the learned Counsel for the Appellant/first Defendant has not filed any scrap of paper before this Court to show that he is the
subscriber of that unregistered chit fund by name and style ""Bhoopathi"", which was alleged to be run by the Plaintiff/first Respondent herein.
(xv) Furthermore, considering the evidence of P. Ws.1 and 2, there is no reason has been assigned by the Appellant/first Defendant to discard the
evidence of P.W.2. In such circumstances, the evidence of P.W.2 is reliable. P.W.2 has corroborating and fortifying the evidence of P.W.1, which
has clearly proved that Ex.A1 is true and genuine document.
(xvi) It is true that before filing the suit, the Plaintiff/first Respondent herein has issued a notice, directing the Appellant/first Defendant to execute
the sale deed after receiving balance sale consideration of Rs. 1,00,000/-. The Appellant/first Defendant sent a reply that he denied the execution
of the sale agreement and he sought for xerox copy of the sale agreement. Admittedly the Plaintiff/first Respondent herein has never sent any xerox
copy of the sale agreement to the Appellant/first Defendant. As already stated that Ex.A1 has not only contained his signature and it has also
contained the Left Thumb Impression of both the parties to the sale agreement Ex.A1. Even though the second Respondent/second Defendant has
impleaded, he never filed any written statement. Even though the decree of specific performance has been passed against him, he never preferred
any appeal. So it has clearly proved that the Appellant/first Defendant has concocted the document in favour of the second Respondent/second
Defendant to escape from civil liability for execution of the sale deed on the basis of Ex.A1 sale agreement. If really the second
Respondent/second Defendant had purchased the property without knowledge of the sale agreement, he may very well appeared before the trial
Court and put forth his defence. But he remained ex-parte. The sale deed executed in favour of the second Respondent/second Defendant was
only a sham and nominal document and it has been created by the Appellant/first Defendant for defrauding the Plaintiff/first Respondent''s legitimate
claim. So the cumulative facts discussed above have proved that the sale agreement Ex.A1 is true and genuine document. The trial Court is correct
in held that Ex.A1 is true and genuine document. Point No. 1 is answered accordingly.
Points No. 2 to 4:
(i) The learned Counsel appearing for the Appellant/first Defendant submitted that since the Plaintiff/first Respondent is claiming for alternative
prayer for recovery of money, the trial Court has committed an error in granting discretionary relief of specific performance.
(ii) He further submitted that the conduct of the Plaintiff/first Respondent would show that he has not entitled specific performance and he also
relied upon some citations to substantiate his arguments.
(iii) Considering the arguments as well as the citations, Ex.A1-sale agreement is true and genuine document. The reason for granting 2 1/2 years for
execution of sale deed has been properly explained. Since the Appellant/first Defendant herein has not executed the sale deed, the Plaintiff/first
Respondent issued the notice. Then only he came to know that the Appellant/first Defendant has executed the sale deed in favour of the second
Respondent/second Defendant. He issued another notice to both the Appellant/first Defendant and second Respondent/second Defendant for the
execution of the sale deed.
Hence he prayed for specific performance and alternatively for recovery of amount advanced in the suit.
(iv) It is pertinent to note that even though the second Respondent/second Defendant was alleged to be the purchaser of the suit property, the
second Respondent/second Defendant has entered his appearance neither in the trial Court nor in the appellate Court by way of filing appeal
before this Court. The sale deed in favour of him was not filed. In such circumstances, the trial Court has considered these aspects in proper
perspective and granted a discretionary relief of decree of specific performance.
(v) Now it is appropriate to consider the decisions relied upon by both sides. The learned Counsel appearing for the Plaintiff/first Respondent
relied upon the decision reported in Rathinam Chettiar Vs. Embar Naidu and another, , in para-11, it is held as follows:
.. .. it is not essential for the Plaintiff to actually tender to the Defendant or to deposit in Court any money except when so directed by the
Court. .. ..
(vi) He also relied upon the decision reported in K.M. Rajendran Vs. Arul Prakasam and another, in para-17, it is held as follows:
By relying on K. Appa Rao and Another Vs. P. Balasubramania Gramani and Others, , it is contended that if the amount is grossly
inadequate, specific performance cannot be granted. I have already demonstrated that there is no material to hold that amount mentioned in Ex.A-
1 is inadequate. By relying on a decision of this Court reported in Nallaya Gounder and another Vs. P. Ramaswami Gounder and another, , it is
submitted that the relief of specific performance cannot be granted since the Plaintiff has not come forward with clean hands. In the light of the
factual position discussed above. I am unable to accept his contention. For the very same reasons, the decisions cited by the learned Counsel for
the Appellant, namely, Amirtham Vs. Subbian and Others, is also distinguishable. The learned Counsel for the Appellant has also submitted that on
the ground of delay, the Plaintiff has to be non-suited for which he relied on a decision reported in Sriram Cotton Pressing Factory (P) Ltd. Vs.
K.E. Narayanaswami Naidu, . For this, relying on a decision of this Court reported in Namazi v. Central Chinmaya Mission Trust 100 LW 582,
learned Counsel for the first Respondent contended that mere delay is not sufficient to deny specific performance unless there is a waiver or
abandonment. Here, as rightly contended by Mr. G. Viswanathan, there is no plea of abandonment or waiver in the written statement of the first
Defendant. As rightly observed by Their Lordships in the Division Bench decision, mere delay may not be sufficient to deny specific performance
unless there is a waiver or abandonment. In this case, there is no waiver at all at any point of time, nor had the Plaintiff abandoned his rights. If
there was nothing to suggest in the conduct of the Plaintiff implying an abandonment, the contract will have to be enforced.
(vii) The learned Counsel appearing for the Plaintiff/first Respondent submitted that there is no evidence to show that sale consideration mentioned
in Ex.A1 is inadequate. So the Plaintiff/first Respondent is entitled the specific performance. There is no quarrel over the proposition.
(viii) But it is not the case of the Appellant/first Defendant that the Plaintiff/first Respondent is never ready and willing to perform his part of
contract. But he totally denied the genuinity of the sale agreement Ex.A1. Therefore, those citations are not relevant for the facts of the present
case.
(ix) The learned Counsel for the Appellant/first Defendant relied upon the decision reported in Parakunnan Veetill Joseph''s Vs. Nedumbara
Kuruvila''s and Ors, in para-14, it is held as follows:
Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should
meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do
so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument
of oppression to have an unfair advantage to the Plaintiff.
There is no quarrel over the proposition laid down in the above decision. This Court has to consider each and every facts and circumstances of the
case, while granting a decree of specific performance. The trial Court has considered all these aspects in proper perspective and considered each
and every facts and circumstances of the case, granted a decree of specific performance.
(x) He further relied upon the decision reported in 2008(5)CTC 428 in (M. Ranganathan V.M. Thulasi Naicker (Deceased) and eight Ors.
2008(5)CTC 428), in which, it is held as follows:
Held: Though, increase in price may not be a ground for refusing decree for specific performance, escalation of price of the land will have to be
necessarily kept in view. Referring to K.S. Vidyanadam and Others Vs. Vairavan, , Lower Appellate Court has held that Courts cannot be
oblivious to spiralling prices of immovable properties and inflation. Having regard to the location of the property near Wallajah in national highway,
the Lower Appellate Court has rightly taken note of the fact of escalation of price of immovable property and on that score holding Plaintiff would
not be entitled to the equitable relief of specific performance.
The above decision is only in favour of the Plaintiff/first Respondent and not the Appellant/first Defendant herein.
(xi) Further he relied upon the decision reported in Aniglase Yohannan Vs. Ramlatha and Others, , in para-12, it is held as follows:
The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract
must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court
is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the Plaintiff entitles him to get
the relief on perusal of the plaint he should not be denied the relief.
The above decision was relied on in decision reported in Sita Ram and Others Vs. Radhey Shyam, in para-10.
(xii) Further he relied upon the decision reported in V.S. Palanichamy Chettiar Firm Vs. C. Alagappan and Another, , in para-16, it is held as
follows:
The agreement of sale was entered into as far back on February 16, 1980, about 19 years ago. No explanation is forthcoming as to why the
balance amount of consideration could not be deposited within time granted by the court and why no application was made u/s 28 of the Act
seeking extension of time of this period. Under Article 54 of the Limitation Act, 3 years period is prescribed for filing the suit for specific
performance of contract of sale from the date of the agreement or when the cause of action arises. Merely because a suit is filed within the
prescribed period of limitation does not absolve the vendee-Plaintiff from showing as to whether he was ready and willing to perform his part of
agreement and if there was non-performance was that on account of any obstacle put by the vendor or otherwise. Provisions to grant specific
performance of an agreement are quite stringent. Equitable consideration come into play. Court has to see all the attendant circumstances including
if the vendee has conducted himself in a reasonable manner under the contract of sale. That being the position of law for filing the suit for specific
performance, can the court as a matter of course allow extension of time for making payment of balance amount of consideration in terms of a
decree after 5 years of passing of the decree by the trial court and 3 years of its confirmation by the appellate court? It is not the case of the
Respondent-decree holder that on account of any fault on the part of the vendor-judgment-debtor, the amount could not be deposited as per the
decree. That being the position, if new time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for
specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be
considered by the Court. That apart, no explanation whatsoever is coming from the decree-holder-Respondents as to why they did not pay the
balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from
the record. Equity demands that discretion be not exercised in favour of the decree holder-Respondents and no extension of time be granted to
them to comply with the decree.
(xiii) Considering the above citations as well as the facts of the case on hand, the Plaintiff/first Respondent herein has proved the genuinity of the
Ex.A1-sale agreement. He pleaded that he was always ready and willing to perform his part of contract. Now considering the rise in price, the
Appellant/first Defendant herein has totally denied the due execution of the Ex.A1, even though he affixed Left Thumb Impression, besides
signatures in Ex.A1. The reason for granting 2 1/2 years time for payment of balance amount of Rs. 1,00,000/-and execution of sale deed has also
properly pleaded and proved by the Plaintiff/first Respondent.
(xiv) In such circumstances, the facts and circumstances of the case clearly proved that the Plaintiff/first Respondent was always ready and willing
to perform his part of contract. So the trial Court has considered all these aspects in proper perspective and granted a decree of discretionary
relief of specific performance. So the trial Court is correct in dismissing the alternative prayer and granted a relief of specific performance and the
judgment and decree passed by the trial Court is sustainable, it does not warrant any interference. So the Appellant/first Defendant is not entitled
any relief. Points No. 2 to 4 are answered accordingly.
In fine,
� The appeal suit is dismissed.
� The judgment and decree dated 29.06.2006 passed in O.S. No. 359 of 2004 on the file of the Additional District Court (Fast Track Court
No. 4), Coimbatore at Tiruppur, is hereby confirmed.
� Two months'' time is granted for execution of the sale deed.
� No costs. The connected miscellaneous petition is closed.