Madhina Begum vs Pichayammal and 2 others

S.S. Subramani, J.—Plaintiff in O.S.No.62 of 1981, on the file of sub Court, Chidambaram, is the appellant. Suit filed by him is one for

specific performance of a agreement of sale dated 28.3.1981.

Plaint schedule property belonged to the first defendant, Plaintiff agreed to purchase the same for a total, consideration of Rs. 62,100. On the

date of agreement, a sum of Rs 12,100 was paid and the balance payable was Rs.50, 000 out of the said amount, it was agreed that Rs.8,000 will

have to be paid to one of the tenants occupying the building since the vendor has received advance from him. Another sum of Rs.15,000 was to be

paid to discharge a mortgage debt. Interest till that date was paid by the vendor. Three months period was also provided to settle the transaction

and the balance amount of Rs.27,000 was directed to be paid, and plaintiff was asked to take the sale deed on payment of such amount. The

agreement further provided that on payment of balance of sale consideration and discharge of the above debts, the sale deed will be executed and

on execution thereof, plaintiff will be put in possession.

Even before the term had expired, plaintiff filed the suit for specific performance of the agreement of sale on the allegation-that first defendant

was attempting to alienate the properly to others. He also averred that he is ready and continues to be ready to take the sale deed in terms of the

agreement. Even though there was such a statement in the plaint, he only said that he has discharged the debt of Rs.8,000 by paying the amount to

the tenant. Nothing was stated about the mortgage debt which was directed to be discharged. He deposited Rs.27,000 and wanted the sale deed

to be executed.

Defendant denied execution of the agreement and also took a contention that plaintiff was never ready and willing to take a sale deed, and

equitable remedy should not be found in his favour.

A replication was filed by plaint if reiterating the averments made in the plaint.

On the above pleadings, trial Court took oral and documentary evidence. On a discussion of the same, it held that the agreement was genuine

and it was executed by defendants, and plaintiff was also ready and willing to take the sale deed in terms of the contract. The suit was decreed.

Aggrieved by the judgment, appeal was filed by defendants as A.S.No.87 of 1998, on the file of District Judge, Cuddalore. Lower Appellate

Court reappreciated the entire evidence and held that plaintiff is not entitled to the relief of specific performance. The conduct of plaintiff was taken

into consideration for the said purpose. The lower appellate Court was of the view that plaintiff is playing a sharp practice to defeat the rights of

defendant and equitable remedy should not be granted in his favour, and he has not come to Court with clean hands.

The main reason for taking such a view was that even though the suit was filed in the year 1981, and before the expiry of the term plaintiff never

expressed his willingness to discharge the mortgage debt, but at the same time offered only Rs. 27,000. After institution of the suit, defendant had

to discharge the entire mortgage debt by paying Rs. 15,000 and the accrued interest and this fact was also informed to the trial court in 1983. In

spite of the fact that plaintiff did not volunteer himself to pay that amount and to get the sale deed, this Conduct on the part of plaintiff was taken

note of by the trial Court as a sharp practice and, therefore, specific performance was refused.

The correctness of the finding is challenged in this second appeal on the following substantial questions of laws-

(1) whether the discharge of mortgage by the defendants themselves sub-sequent to suit did not make it impossible to perform it in the manner as

referred to in the agreement and absolved the plaintiff of its performance in the manner referred to in the agreement, as set out in section 16 Clause

C of the Specific Relief Act? and

(2) whether the requirement of proof of readiness and willingness to perform the part of the contract is not established by a tender to pay by means

of the notice? -

Since caveat was entered by respondents, I heard the second appeal itself at the admission stage itself.

After hearing the learned Counsel on both sides, find that the decision of the lower appellate Court is only to be confirmed.

The settled law is that even if the agreement is lawful, that does not follow that plaintiff is entitled to specific performance. The Court is entitled

to consider various circumstances, and the conduct of the party is one of the most relevant factors to be taken into consideration one more factor

which was placed before the Court by respondents was the t p plaintiff was entitled to take possession of the property only after execution of the

sale deed. The agreement provided that on registration of the document, he will be given possession. But, what the plaintiff did was, on paying the

amount of Rs.8,000 to the tenant who was then occupying the building, he occupied the building and detained possession of the property When

plaintiff is not entitled to possession before registration and has not obtained permission from defendants, to take possession, it cannot be said that

his conduct is beyond suspicion. Along with the same, when he did not discharge the debt of Rs 15,000 to the mortgagee as promised, and

wanted to get the sale deed only for Rs.27,000 only, that shows that he is not willing to pay that sum of Rs.15,000.

Learned Counsel for appellant submitted that first defendant himself volunteered to say that amount to the mortgagee, and plaintiff was not

given an opportunity to discharge that debt. As stated earlier, the suit was filed before the time expired. Like paying the amount of Rs.8,000 to the

tenant, plaintiff could have paid a sum of Rs.15,000 also to the mortgagee. Even the pendency of the suit never prohibited the discharge of

mortgage debt. Interest till the date of the agreement was paid by defendant-, and that is why plaintiff was asked to pay the sum of Rs.15,000,

viz.., the principal amount borrowed. By non-payment of the amount, interest also accrued, and defendants have to pay more amount to the

mortgagee for discharging the same in the year 1983. This fact was also informed to the trial Court, and even at that time, plaintiff did not come

forward with the case that he is prepared to pay that amount to defendants. The total consideration is Rs.62,100 i.e Rs.15,000 also formed part of

the sale consideration. Equally, it has to be paid to the mortgagee or the defendants, which Is not the concerned of the plaintiff If plaintiff could not

pay the amount to the mortgagee, he should have paid the amount to the defendants. Till the suit was disposed of, no effort was made by plaintiff

to pay that amount. In the plaint also, there is no statement whether he is prepared to discharge the mortgage debt or that he is prepared to pay the

sum of Rs.15,000 in accordance with the agreement. After the suit was decreed, and when the matter was pending in appeal, application was filed

by plaintiff, praying that he may be permitted to pay that amount. The lower appellate Court refused to accept the request of the plaintiff, enabling

him to pay that amount. Before the lower appellate court, plaintiff filed I.A. No.102 of 1999 to receive a document, namely, a notice dated 29- 9-

1998 wherein he has expressed his willingness to discharge the mortgage or deposit the amount after calculation. Plaintiff had taken more than 17

years to move such an application, and that too when the defect was pointed out to him before the lower appellate court. From the above conduct,

it is clear that plaintiff did not come to Court with clean hands. By exercising sharp practice, he wanted to defeat the genuine claim of defendants

and get the property somehow or other. His possession of the property was also not by legal means. Taking into consideration these facts, I feel

that the lower appellate Court was justified in not exercising the discretion in his favour.

Learned counsel for appellant argued that since defendants have already redeemed the mortgage, the plaintiffs task of performing his part of

the contract was made impossible. As stated earlier, the total consideration is Rs.62,100. If the defendants had discharged that debt, since she was

made liable to pay interest also, plaintiff would have volunteered to pay that amount to the defendants. There is no impossibility as alleged by

plaintiff/appellant. From the conduct of plaintiff, I find that she did not want to pay the amount to defendants ,unless she was compelled to do so.

I find that the plaintiff was not ready and willing to perform her part of the contract, in terms thereof, and that she has not come to Court with

clean hands. The judgment of the lower appellate Court is only to be confirmed. Both the questions of law, extracted above, are found against the

appellant.

In the result, the second appeal is dismissed. No costs. CMP for injuction is also dismissed.