Mehrunnisa Begum (Died), & Ors. vs M.Rajangam

This appeal suit was preferred by the defendant in the suit in O.S.No.336 of 1989 on the file of the III Additional Sub Court, Madurai. Since the appellant died, during the pendency of this appeal, the appellants 2 to 9 were brought on record as legal representatives of the deceased first appellant.

The respondent herein filed a suit in O.S.No.336 of 1989 for specific performance of agreement of sale dated 19.02.1989 and for consequential relief.

The case of the respondent in the plaint are as follows: 3.1.The suit property namely the house site measuring an extent of 6 cents and 48 square feet belong to the defendant and that she is in possession and enjoyment of the same. The plaintiff and defendant entered into an agreement of sale dated 19.02.1989 in respect of the suit property for a sum of Rs.2,01,633/- and a sum of Rs.50,000/- was paid as advance to the defendant on the date of the agreement on 19.02.1989 which was acknowledged by the defendant. The time fixed for completing the sale was three months from 19.02.1989, however, time is not essence of the contract. Though the plaintiff was duly ready and willing to perform his part of the agreement to get the sale deed registered at his expense on payment of the balance of sale price, the defendant was dodging without valid reasons and was taking time again and again to execute the sale deed. The plaintiff is ready with the money to pay the balance of sale consideration and willing to perform his part of the contractual obligation.

3.2.The plaintiff issued a registered notice dated 15.05.1989 calling upon the defendant to execute the sale deed. The defendant received the said notice on 18.05.1989. Thereafter, the plaintiff sent a telegram on 18.05.1989 expressing his readiness and willingness to perform his part of the contract and requesting the defendant to execute the sale deed on receipt of the balance of sale consideration. After receiving telegram on 18.05.1989, the defendant issued a reply notice admitting the sale agreement dated 19.02.1989 and receipt of advance amount. However, the defendant stated falsely in her reply that the plaintiff wanted to cancel the agreement and to get back the advance amount. Along with the reply, the defendant also had enclosed a bank draft for Rs.50,000/-. The contention of the defendant in the reply notice are false, frivolous and untenable. The plaintiff never asked the defendant either to cancel the agreement or to return the advance amount. There was no necessity for the plaintiff to go for cancellation as the plaintiff was always ready and willing to perform his part of the contract. Hence, the plaintiff also issued a rejoinder notice on 26.05.1989 returning the bank draft and called upon the defendant to execute the sale deed upon receipt of the balance of price. The rejoinder notice was received by the defendant on 05.06.1989. Once again the plaintiff received a reply from the defendant along with the Demand Draft. The defendant has no right to cancel the agreement as contended by the defendant in the reply to the rejoinder notice and the unilateral cancellation is not valid in law. The attitude of the defendant was deliberate and with fraudulent intention to get more money than the agreed amount. Hence, the plaintiff has come forward with the suit for specific performance.

The suit was contested by the first appellant / defendant in the suit. Though the defendant admitted the execution of the sale agreement dated 19.02.1989, it was contended by the defendant that the plaintiff has to complete the sale transaction within three months from 19.02.1989 as time is the essence of the agreement. It was further contended by the defendant that the plaintiff was not ready and willing to complete the sale transaction. It was the case of the defendant that she fell ill soon after the sale agreement and just a week prior to the notice issued by the plaintiff (dated 15.05.1989), the plaintiff came and said that he did not have money to complete the sale and requested the defendant to cancel the agreement. The defendant agreed and prepared to return the advance amount. However, the plaintiff who went away to bring the agreement to get back the advance, later on, sent the notice that he was ready. Just to blackmail the defendant who is a muslim pardha lady the plaintiff has come forward with the suit after abandoning the contract earlier. Since the agreement of sale had already been cancelled, it was contended by the defendant that there is no subsisting contract to seek specific performance. The plaintiff, after knowing that the value of the land has doubled, has come forward with the suit for specific performance. It was further contended by the defendant that the plaintiff is a man without means or wherewithal to complete the transaction within the time stipulated in the agreement of sale. Since the value of the property has gone very high, the defendant contended that the decree for specific performance cannot be granted in equity.

The trial Court decreed the suit after holding that the plaintiff is always ready and willing to perform his part of the contract. The trial Court also found that the case of the defendant that the plaintiff had agreed to cancel the sale agreement is false and therefore, held that the plaintiff is entitled to the decree for specific performance upon payment of the balance of sale consideration. Aggrieved by the judgment and decree of the trial Court, the defendant preferred the above appeal.

The appellants 2 to 9 are the legal representatives of the deceased first appellant who died during the pendency of this appeal.

The execution of the sale agreement which was marked as Ex.A3, is not in dispute. It is true that there was a stipulation in the agreement to complete the sale transaction within three months from the date of the sale agreement. The fact that the plaintiff issued a registered sale notice dated 15.05.1989, calling upon the defendant to execute the sale deed is not in dispute. The issuance of the telegram by the plaintiff on 18.05.1989 calling upon the defendant once again to execute the sale deed upon receipt of the balance of sale consideration is also not in dispute. However, the defendant issued a reply on 18.05.1989 under Ex.A2. In the said reply, the defendant would say that the plaintiff came to her just a week ago and told her that he had no money to complete the sale transaction and insisted, the advance to be returned to him. It was further stated in the reply that the defendant also agreed to put an end to the sale agreement and to give back the advance amount which had been paid by the plaintiff to the defendant. It was the defendant''s further case in the reply that the defendant had cancelled the agreement at the request of the plaintiff and that therefore, she is returning the advance amount by way of a bank draft. Once again the plaintiff sent another notice dated 26.05.1989 calling upon the defendant to execute the sale deed expressing his readiness and willingness. To the second notice dated 26.05.1989, which was issued under Ex.A5, the defendant also sent a reply dated 05.06.1989 which is marked as Ex.A6. The demand draft which was earlier returned to the defendant along with Ex.A5 notice was once again enclosed along with the reply notice which was marked as Ex.A6. After this, the plaintiff once again issued a legal notice on 10.06.1989 and filed the present suit for specific performance on 12.06.1989.

From the facts narrated above, it would be seen that the suit agreement is dated 19.02.1989. Since three months time is given for performance, even if time is the essence of the contract, the plaintiff''s notice under Ex.A1, dated 15.05.1989 would demonstrate that the plaintiff was ready to perform his part of the contract, within the period of three months and in terms of the agreement of sale. The case of the defendant is that the plaintiff himself, about one week prior to Ex.A1, came to the defendant and requested for cancellation of the sale agreement and to get back the advance amount paid at the time of sale agreement. Having regard to the subsequent conduct of the parties and that the suit has been filed immediately after the receipt of the second reply under Ex.A6, the burden lies on the defendant to prove her case that the plaintiff himself had agreed to cancel the sale agreement dated 19.02.1989 just a week prior to Ex.A1, the first notice issued on behalf of the plaintiff, calling upon the defendant to execute the sale deed upon receipt of balance of sale consideration. The defendant was examined one Hameed Basha, one of the sons of defendant as D.W.1. Contrary to the case of the defendant in the written statement and in the chief examination, D.W.1 admits that the plaintiff did not come to the defendant''s house to inform the cancellation of the sale agreement and that it was one Rajendran who acted as broker came to the defendant''s house to convey the message that the agreement has been cancelled. Having regard to the sequence of events and the evidence of D.W.1, the case of the defendant that the plaintiff had agreed to cancel the sale agreement and requested the plaintiff to return the advance amount just one week prior to the suit notice cannot be believed unless there is positive and acceptable evidence which is independent. In the present case, as pointed earlier, the evidence of D.W.1 does not corroborate the case of the defendant in the written statement. Even if there is a clause in the agreement stipulating time for performance of the contract of sale, it cannot be said that time is the essence of the contract, if the agreement is in connection with the sale of immovable property. In the present case, time for performance is specified in the sale agreement. However, even before the expiry of three months stipulated in the agreement, the plaintiff has issued the notice under Ex.A1 dated 15.05.1989. It was only under the pretext of cancellation of agreement by the plaintiff himself, the defendant refused to execute the sale deed. Immediately after the reply notice issued by the defendant on 18.05.1989, the plaintiff sent a further notice on 26.05.1989 and filed the suit on 12.06.1989 without giving any room for delay. Since the case of the defendant that the agreement was cancelled by by the plaintiff himself, is not proved by any independent evidence and the evidence of D.W.1 in this regard does not impress this Court to be accepted. The evidence of D.W.1 is contrary to the stand in the written statement. This Court has no reason to interfere with the findings of the trial Court and the discretionary relief granted by the trial Court. I find that there is no compelling reason or circumstances to interfere with the judgment and decree of the trial Court. This Court after considering the pleadings and the evidence both oral and documentary, is of the firm opinion that the plaintiff is always ready and willing to perform his part of the sale agreement, Ex.A3 dated 19.02.1989 and that the plaintiff is entitled to the equitable relief of specific performance.

The learned counsel appearing for the appellants relied upon the judgment of Hon''ble Supreme Court in the case of Nirmala Anand v. Advent Corporation (P) Ltd., and others reported in 2002 (4) CTC 624 for the proposition that the Court can, in exercise of discretion, impose any reasonable condition directing one of the parties to pay additional amount to the other party while granting or refusing decree of specific performance, depending upon the nature of the case. Paragrapher 6 of the judgment reads as follows:

6.It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the consideration besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the consideration to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing the specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.

Again the Hon''ble Supreme Court in the case of Zarina Siddiqui v. A.Ramalingam alias R.Amarnathan reported in 2014 (6) CTC 319 has held as follows:

"37. As held by this Court time and again, efflux of time and escalation of price of the property by itself cannot be a valid ground to deny the relief of specific performance. But the Court in its discretion may impose reasonable conditions including payment of additional amount to the vendor. It is equally well settled that the plaintiff is not to be denied specific performance only on account of phenomenal increase of price during the pendency of litigation.

Be that as it may, in the facts and circumstances of the case and considering the phenomenal increase in price during the period the matter remained pending in different courts, we are of the considered opinion that impugned order under appeal be set aside but with a condition imposed upon the appellant (plaintiff) to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lacs) in addition to the amount already paid by the appellant to the respondent. On deposit in trial court of aforesaid amount by the appellant, for payment to the respondent, within three months from today, the respondent shall execute and register the sale deed in favour of the plaintiff in respect of the suit property. In the event the aforesaid condition of deposit of Rs.15 lacs is fulfilled within the time stipulated hereinabove but the defendant fails to comply with the direction, then the appellant shall be entitled to execute the decree in accordance with the procedure provided in law."

In the present case, this Court has already given a finding that the plaintiff was always ready and willing to perform his part of the contract and the suit has been filed within the due date fixed for the performance of the agreement. The case of the defendant that the plaintiff had agreed to cancel the agreement just one week prior to the first suit notice is also rejected. In such circumstances, the entitlement of the plaintiff for specific performance cannot be doubted. When it is not possible to refuse the relief of specific performance only on account of the phenomenal increase in price during the pendency of litigation, it is possible for Courts to balance the equities to direct the plaintiff to pay additional sum if it warrants on the assessment of the totality of the circumstances. In this case, the defendant is entitled to the balance of sale consideration, namely, a sum of Rs.1,51,633/- within three months from the date of agreement. No doubt, it is only on account of the conduct of the defendant in refusing to come forward to execute the sale deed, the defendant / appellant was deprived of the balance. Even the balance amount was deposited only in Court and the amount is lying to the credit of the suit. The defendant is therefore directly responsible for the inconvenience and the injustice that is caused to her to part away with the valuable property of the appellants upon receipt of the amount agreed in the year 1989. However, the plaintiff who had one advantage of paying the balance of sale consideration in January, 1994 which he was required to pay in 1989 can be directed to pay some additional amount while balancing equities. In this case, it is stated that the value of the land has increased by 15 times and that the money which was agreed under the sale agreement is very meagre. However, that does not mean that the plaintiff should be asked to make good the loss to the defendant as it was the conduct of the defendant that made her and the appellants herein to suffer. Considering the facts and circumstances of the case, I direct the plaintiff to deposit a further sum of Rs.3,00,000/- in addition to the amount already deposited by the plaintiff / respondent to the credit of the suit. The respondent is given three months time from the date of receipt of a copy of this judgment to deposit the further sum of Rs.3,00,000/- and upon the payment of further amount of Rs.3,00,000/-, the appellants shall execute and register the sale deed in favour of the plaintiff in respect of the suit property. In case of failure by the appellants to execute the sale deed, the respondent is entitled to execute the decree in accordance with the decree of the trial Court.

The appeal is dismissed. However, there is no order as to costs.