P. Arumugam vs M. Shunmugam Pillai

A. Selvam, J.—Challenge in this Second Appeal is to the concurrent Judgments and decrees passed in Original Suit No. 301 of 2003 by the

Sub Court, Thoothukudi and in Appeal Suit No. 16 of 2008 by the Additional District Court/Fast Track Court No. I, Thoothukudi. The

respondent herein as plaintiff has instituted Original Suit No. 301 of 2003 on the file of the trial Court praying to pass a decree of specific

performance in his favour on the basis of the sale agreement dated 24.09.2000, wherein the present appellant has been shown as sole defendant.

In the plaint it is averred that the defendant is the absolute owner of the suit property and he got the same by virtue of the will dated 19.10.1994

executed by his father Pachia Pillai. The defendant has agreed to sell the suit property in favour of the plaintiff and to that extent the suit sale

agreement has come into existence on 24.09.2000. On the date of execution of sale agreement, the plaintiff has paid a sum of Rs. 2,00,000/- by

way of an advance. The total sale consideration has been fixed at Rs. 3,50,000/- and the balance amount is Rs. 1,50,000/-. The defendant has

agreed to execute a sale deed in favour of the plaintiff within a period of six months after receipt of balance of sale consideration. The plaintiff has

orally demanded the defendant on various occasions to receive balance of sale consideration and execute a sale deed in his favour. The defendant

has given evasive reasons for the reasons best known to him. The plaintiff has always been ready and willing to perform his part of the contract.

Since the defendant has failed to perform his part of the contract, a legal notice dated 26.07.2003 has been issued to the defendant and thereby

called upon to execute a sale deed in favour of the plaintiff. After receipt of the said legal notice, the defendant has given a false reply notice dated

31.07.2003. Under the said circumstances, the present Suit has been instituted for the relief sought for in the plaint.

In the written statement filed on the side of the defendant it is averred that on 24.09.2000 the defendant has not agreed to sell the suit property

in favour of the plaintiff for a sum of Rs. 3,50,000/- and received a sum of Rs. 2,00,000/- by way of an advance. It is also equally false to contend

that the defendant has agreed to execute a sale deed in favour of the plaintiff within a period of six months after receipt of balance of sale

consideration of Rs. 1,50,000/-. On 06.04.2002, the defendant has suffered from illness and he asked his brother Jeevanantham to get money

from the plaintiff and accordingly the plaintiff has given a sum of Rs. 35,000/-. At the time of advancing loan, the plaintiff has obtained signature of

the defendant on various blank papers and blank non-judicial stamps. The plaintiff has also received house tax receipt, will etc. from the defendant.

After six months the defendant has paid the entire principal amount and demanded the documents which have been handed over to the plaintiff. But

the plaintiff has demanded a sum of Rs. 80,000/- so as to return the documents which have been received from the defendant and due to that a

police complaint dated 04.08.2003 has been preferred and there is no merit in the Suit and the same deserves to be dismissed.

On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and

documentary evidence has decreed the Suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant

has preferred Appeal Suit No. 16 of 2008 on the file of the first appellate Court.

The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the Appeal, whereby

and whereunder confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the

Courts below, the present second appeal has been preferred at the instance of the defendant as appellant.

At the time of admitting the present Second Appeal, the following substantial questions of law have been settled for consideration:

(a) Whether the Courts below are correct in law in holding that the plaintiff is always ready and willing to perform his obligation in view of absence

of pleading and proof as to the efforts taken by the plaintiff for about 3 years from the date of agreement till the date he sent the notice as provided

u/s 16(c) of the Specific Relief Act?

(b) Whether the Courts below are correct in law in exercising the discretion in favour of the plaintiff u/s 20 of the Specific Relief Act overlooking

the equity in favour of the plaintiff?

Before pondering the rival submissions made on either side, it would be apropos to look into the rival pleadings put forth on the side of the

plaintiff as well as on the side of the defendant.

The specific contention put forth on the side of the plaintiff is that the defendant is the absolute owner of the suit property and he agreed to sell

the same in favour of the plaintiff for a sum of Rs. 3,50,000/- and to that extent the suit sale agreement has come into existence on 24.09.2000 and

on the date of its execution, the defendant has received a sum of Rs. 2,00,000/- and he also agreed to execute a sale deed in favour of the plaintiff

within a period of six months, after receipt of balance of sale consideration of Rs. 1,50,000/- and despite of repeated demands made from the

plaintiff, the defendant has given evasive reply so as to execute a sale deed in favour of the plaintiff after receipt of balance of sale consideration

and finally the plaintiff has chosen to issue a legal notice dated 26.07.2003 to the defendant and thereby called upon him to execute a sale deed in

favour of the plaintiff after receipt of balance of sale consideration and after receipt of the said legal notice, the defendant has chosen to issue a

false reply notice dated 31.07.2003. Under the said circumstances, the present Suit has been instituted for the relief sought for in the plaint.

In the written statement filed on the side of the defendant it is averred that the entire averments made in the plaint with regard to execution of sale

agreement dated 24.09.2000; receipt of advance to the tune of Rs. 2,00,000/- and also the defendant has agreed to execute a sale deed in favour

of the plaintiff after receipt of balance of sale consideration of Rs. 1,50,000/- within a period of six months are nothing but false and on

06.04.2002 the defendant has fallen in illness and he asked his brother by name Jeevanantham to get some money from the plaintiff and

accordingly the plaintiff has given a sum of Rs. 35,000/- and at the time of advancing loan, the plaintiff has obtained signatures of the defendant on

various blank papers as well as non-judicial stamps and after a lapse of six months, the defendant has paid the entire principal amount and

subsequently he asked the plaintiff to return all the documents which have been received from him. But the plaintiff has demanded a sum of Rs.

80,000/- for the purpose of returning all the documents and due to that a police complaint has been given and therefore, the plaintiff is not entitled

to get the relief sought for in the plaint.

The Courts below have concurrently rejected the defence put forth on the side of the defendant.

The learned counsel appearing for the appellant/defendant has not advanced his argument on the basis of the defence mentioned in the written

statement. But his entire argument is based upon the provisions of Section 16(c) of the Specific Relief Act, 1963.

It is a settled principle of law that as per section 16(c) of the said Act, in a suit for specific performance, the plaintiff must plead and prove his

readiness and willingness to get a sale deed from the defendant from the date of execution of sale agreement. Further it is also a settled principle of

law that the concerned defendant need not deny the alleged readiness and willingness on the part of the concerned plaintiff.

The learned counsel appearing for the appellant/defendant has emphatically contended that as per the averments made in the plaint, the suit sale

agreement has come into existence on 24.09.2000, wherein six months time has been fixed for getting a sale deed executed by the defendant after

receipt of balance of sale consideration and for the first time, a legal notice has been given on 26.07.2003 and within the period of six months and

immediately after a lapse of six months, no attempt has been made on the side of the plaintiff to get a sale deed from the defendant and even in the

plaint no satisfactory explanation has been given after a lapse of six months till date of issuance of legal notice dated 26.07.2003 and therefore, the

plaintiff has failed to aver and prove his alleged readiness and willingness from the date of execution of sale agreement dated 24.09.2000 and even

though it is a statutory obligation on the part of the plaintiff, the Courts below have failed to consider the same. Under the said circumstances, the

concurrent Judgments and decrees passed by the Courts below are liable to be interfered with.

In support of the contention raised on the side of the appellant/defendant, the following decisions are relied upon:

(a) The first and foremost decision is reported in K.S. Vidyanadam and Others Vs. Vairavan, wherein at paragraph-11, it is observed as follows:

The rigour of the rule evolved by Courts that time is not of the essence of the contract in the case of immovable properties-evolved in times when

prices and values were stable and inflation was unknown-requires to be relaxed, if the modified, particularly in the case of urban immovable

properties. It is high time, the Court do so. In the instant case may be, the parties knew of the circumstance regarding rising prices but they have

also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the

essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a

rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no

significance or meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the court should also bear

in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the

said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable

properties).

(b) The second decision is reported in Mrs. Saradamani Kandappan Vs. Mrs. S. Rajalakshmi and Others, the Hon''ble Apex Court has culled out

as follows:

(i) Courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking

certain steps or for completion of the transaction, that must have some significance and, therefore, time/period prescribed cannot be ignored.

(ii) Courts will apply greater scrutiny and strictness when considering whether the purchaser was ''ready and willing'' to perform his part of the

contract.

(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time limits

stipulated in the agreement. Court will also ''frown'' upon suits which are not fled immediately after the breach/refusal. The fact that limitation is

three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to

assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been

delivered in part performance, where equity shifts in favour of the purchaser.

From the conjoint reading of the decisions referred to supra, it is easily discernible that in a suit for specific performance, concerned plaintiff

has to aver and prove his alleged readiness and willingness to perform his part of the contract from the date of execution of sale agreement. Further

a suit for specific performance cannot be decreed merely because it has been filed within the period of limitation by ignoring the time limit stipulated

in the sale agreement.

In order to dispel the legal contention put forth on the side of the appellant/defendant, the learned counsel appearing for the respondent/plaintiff

has equally contended that in the plaint it has been specifically averred that the plaintiff has always been ready and willing to perform his part of the

contract from the date of execution of the suit sale agreement dated 24.09.2000 and since the suit property is the residential house, the defendant

has approached the plaintiff and sought time to get alternative accommodation and due to that the delay has occurred and finally a legal notice has

been given on 26.07.2003. But the defendant has given a reply notice containing false allegations and the Courts below after considering the nature

of defence taken on the side of the defendant and also his conduct, have rightly rejected the defence put forth on the side of the defendant. Under

the said circumstances, the concurrent Judgments and decrees passed by the Courts below are not liable to be interfered with.

The suit sale agreement dated 24.09.2000 has been marked as Ex. A1 and a copy of legal notice given by the plaintiff for the first time has

been marked as Ex. A5 and the reply notice given by the defendant on 21.08.2003 has been marked as Ex. A6.

In Ex. A1, it has been clearly stated that on the date of execution of Ex. A1, the defendant has received a sum of Rs. 2,00,000/- by way of an

advance and agreed to receive balance of sale consideration and execute a sale deed in favour of the plaintiff within a period of six months.

At this juncture, it would be condign to look into paragraph - 4 of the plaint. In paragraph - 4 of the plaint it has been stated that the plaintiff

has orally called upon the defendant to receive balance of sale price and execute a sale deed on various occasions. But the defendant has evaded

for the reasons best known to him.

The plaintiff has been examined as PW1 and his specific evidence is that after execution of Ex. A1 he approached the defendant on so many

occasions and thereby called upon him to execute a sale deed after receipt of balance of sale consideration and only at the request of the

defendant, the delay in question has occurred. But in the plaint the said averments are not found place. Therefore, it is quite clear that the plaintiff

has adduced evidence with regard to the aspect which has not been specifically averred in the plaint. Since the plaintiff has adduced evidence as

stated earlier, which has not been mentioned in the plaint, it is needless to say that the explanation given by the plaintiff cannot be accepted and the

same is of no use.

It has already been pointed out that the suit sale agreement has come into existence on 24.09.2000, wherein time for execution of sale deed

has been fixed at six months. Within the period of six months, the plaintiff has not evinced any interest for the purpose of getting a sale deed from

the defendant. The said six months has become expired on 24.03.2001 and after a lapse of two years, for the first time, the plaintiff has issued the

legal notice dated 26.07.2003. It is not an adulation to say that on the side of the plaintiff no acceptable reason has been given either in the plaint or

in the evidence with regard to inaction on the part of the plaintiff within a period of six months which has been mentioned in Ex. A1 and also with

regard to two years after a lapse of six months period mentioned therein.

The Hon''ble Apex Court has repeatedly held that in a suit for specific performance, the concerned plaintiff has to aver and prove his readiness

and willingness from the date of execution of sale agreement as per the statutory provisions mentioned in Section 16(c) of the Specific Relief Act,

1963 and further, the Hon''ble Apex Court has observed that simply because a suit for specific performance has been instituted within the period

of limitation, discretionary relief of specific performance cannot be granted, unless the concerned plaintiff has averred and proved his readiness and

willingness to perform his part of the contract from the date of execution of sale agreement.

In the instant case, as pointed out earlier, no acceptable reason is found place on the part of the plaintiff as to why he has failed to take action

within the period of six months which has been prescribed in Ex. A1 and likewise, no satisfactory explanation has been given as to why he has not

taken any action within the period of two years from 24.03.2001. Therefore, it is quite clear that in the instant case, the plaintiff has virtually failed

to aver and prove his readiness and willingness to perform his part of the contract from the date of execution of Ex. A1. Since the plaintiff has

failed to discharge his statutory obligation enshrined in Section 16(c) of the Specific Relief Act, 1963, it is needless to say that the plaintiff is not

entitled to get the discretionary relief of specific performance.

The Courts below without considering the nature of averments made in the plaint with regard to the alleged readiness and willingness of the

plaintiff and also without considering that the plaintiff has failed to discharge the statutory obligation mentioned in Section 16(c) of the Specific

Relief Act, 1963 have erroneously accepted the case of the plaintiff.

For the sake of conclusion, the Court has to narrate the nature of defence taken on the side of the appellant/defendant. The only defence taken

on the side of the appellant/defendant is that on 06.04.2002 the defendant has fallen in illness and due to that he asked his brother by name

Jeevanantham to get some money from the plaintiff and accordingly the plaintiff has advanced a sum of Rs. 35,000/- by way of getting the

signatures of the defendant on various blank papers and also blank non-judicial stamps and he also obtained some documents relating to suit

property and after a lapse of six months, the entire principal amount has been discharged. But the plaintiff has refused to return all the documents

by way of demanding Rs. 80,000/-.

It is an admitted fact that the defendant has given reply notice dated 21.08.2003 and the same has been marked as Ex. A5, wherein it has

been stated that the defendant has received a sum of Rs. 20,000/-. Since contra evidence is available with regard to loan transaction, the Court

cannot accept the nature of defence taken on the side of the defendant. However, as pointed out earlier, the defendant is entitled to raise the legal

plea of readiness and willingness on the part of the plaintiff as per Section 16(c) of the Specific Relief Act, 1963.

It has already been expounded to the effect that the plaintiff has not properly averred in the plaint with regard to his alleged readiness and

willingness from the date of execution of Ex. A1 and also failed to give proper reason as to why the delay mentioned supra has occurred.

Therefore, viewing from any angle, the plaintiff is not entitled to get the discretionary relief of specific performance. The substantial questions of law

settled in the present Second Appeal are decided in favour of the appellant/defendant and altogether the present Second Appeal deserves to be

allowed. In fine, this second appeal is allowed without cost. Connected Miscellaneous petition is closed. The concurrent Judgments and decrees

passed in Original Suit No. 301 of 2003 by the Sub Court, Thoothukudi and in Appeal Suit No. 16 of 2008 by the Additional District Court/Fast

Track Court No. I, Thoothukudi are set aside and the Suit filed in Original Suit No. 301 of 2003 is dismissed without cost.