R. Velammal vs R. Daivasigamani and others

Thanikkachalam, J.

The defendant is the appellant herein. The first plaintiff is the brother-in-law of the second plaintiff. The third plaintiff is the co-brother of the first

plaintiff. The plaintiffs filed O.S. 118 of 1983 for specific performance of the sale agreement dated 13-7-1980. The case of the plaintiffs is as

under:-- The defendant agreed to sell her property to the plaintiffs under a sale agreement dated 13-7-1980 for a sum of Rs. 2,35,000/-. On the

date of the execution of the sale agreement a sum of Rs. 1 lakh was paid by way of advance by the plaintiffs to the defendant. Among the plaintiffs

the first plaintiff agreed to purchase half of the suit properly and plaintiffs 2 and 3 agreed to purchase 1/4th share each in the suit property. In

pursuance of the above said agreement possession of the property was handed over to the plaintiffs. According to the sale agreement dated 13-7-

1980 the sale transaction should be completed within one year from the date of the agreement. Since a suit filed by one Mehaboob Bivi against the

defendant was pending, the sale transaction could not be completed within the period stipulated in the agreement. Hence, the parties agreed to

extend the period by another six months for completing the transaction. An endorsement was made to that effect on 11-7-1981, on the sale

agreement. The defendant also received another sum of Rs. 10,000/- for the purpose of discharging a prior mortgage. An endorsement was made

in the sale agreement on 15-12-1981 to the effect that the defendant received Rs. 10,000/- from the plaintiffs. In the sale agreement dated 13-7-

1980 there is a clause staling that if the defendant was unable to execute the sale deed with regard to the A-Schedule properly, she agreed to

execute the sale deed with regard to the B-Schedule property by treating the advance amount of Rs. 1 lakh as sale consideration. The plaintiffs

were ready and willing to perform their part of the contract, but the defendant refused to execute the sale deed on the ground that the suit filed by

the said Mahaboob Bivi is still pending. Thereafter, the plaintiffs sent a notice dated 10-1-1982 calling upon the defendant to execute the sale deed

after receiving the balance of sale consideration, since the defendant refused to execute the sale deed, the plaintiffs came forward with this suit.

The case of the defendant is as under:--The defendant executed the sale agreement in favour of the plaintiffs for the purpose of obtaining money

to perform the marriage of her daughter. The fact that Mehaboob Bivi filed the suit O. S. No. 20 of 1981 against the defendant was already

known to the plaintiffs. The possession was not handed over to the plaintiffs as alleged. Since the said Mehaboob Bivi filed the above suit with

regard to the A-Schedule property, the defendant was not in a position to execute the sale deed in favour of the plaintiffs. The said Mehaboob Bivi

filed an appeal before the High Court and obtained an order of interim injunction restraining the defendant from interfering with her possession and

enjoyment of the suit property. Therefore, according to the defendant she was unable to perform her part of the contract. There was a Panchayat

in which the plaintiffs agreed to take back their advance amount paid to the defendant. The B-Schedule property was not agreed to be sold to the

plaintiffs. It was shown only as security for the advance amount received by the defendant. The defendant obtained the amount from the plaintiff

only as a loan and the amount was not received as advance for the sale of the suit properties. Since the defendant was unable to execute the sale

deed without encumbrance, the sale agreement has become infructuous. Therefore, the suit is liable to be dismissed.

The plaintiffs filed seven documents. The defendant filed four documents. The first plaintiff examined himself as PW 1. The husband of the

defendant examined himself as DW 1. One Govindasamy was examined as DW2. Considering the facts arising in this case, the trial Court decreed

the suit as prayed for with costs, directing the defendants to execute the sale deed after receiving the balance of sale consideration. The plaintiffs

were directed to deposit the balance of sale consideration within three months from the date of the judgment. It is against this judgment and decree,

the present appeal has been preferred by the defendant.

The learned counsel appearing for the appellant/defendant submitted as under:--As per the sale agreement dated 13-7-1980, the defendant

agreed to sell the A-Schedule property to the plaintiffs for a sum of Rs. 2,35,000/-. A sum of Rs. 1 lakh was received by way of advance, on the

date of execution of the sale agreement. One Mehaboob Bivi filed a suit against the defendant with regard to the A-Schedule property. She also

obtained an interim order against the defendant restraining her from interfering with the possession and enjoyment of the A-Schedule property.

Hence, the sale transaction could not be completed within the time stipulated in the sale agreement and time was extended by six months to

complete the sale transaction. The extension of time was endorsed in the sale agreement on 11-7-1981. Again on 15-12-1981 the defendant

received a further advance of Rs. 10,000/- to discharge a prior mortgage. That was endorsed on the sale agreement on 15-12-1981. Since there

is a cloud on the title over the A-Schedule property, the defendant was unable to execute the sale deed free from encumbrance. Therefore, she

was unable to perform her part of the contract. According to the sale agreement, the defendant agreed to execute the sale deed only after the

cloud over the title is removed. Therefore, it is a contingent contract. Since the suit is pending, the cloud over the title to the A-Schedule property is

not yet cleared. Therefore since the contingency as stipulated in the sale agreement has not taken place, the contract fell threw. The defendant is

always ready to execute the sale deed, conveying the title to the plaintiff over the B-Schedule properties, but the plaintiffs are not willing to accept

the same. The defendant sent a reply notice to the plaintiffs on 15-1-1982, but the plaintiffs sent a rejoinder after a lapse of 9 months. Therefore,

the plaintiffs abandoned the contract. According to the sale agreement three persons agreed to purchase the A-Schedule property. But except one

person, other two persons did not come to the box to prove their case. It was therefore submitted that the trial Court was not correct in decreeing

the suit as prayed for.

On the other hand, the learned counsel appearing for the respondents/plaintiffs submitted as under:-- All these arguments now advanced by the

learned counsel appearing for the appellant with regard to the contingent contract was not pleaded in the written statement. There is also no

mention about the alleged contingent contract in the sale agreement. The plaintiffs are willing to purchase the A-Schedule property along with the

encumbrance. Even PW 1 in the witness box admitted that the defendant did not refuse to execute the sale deed along with the encumbrance.

There is no alternative contract to purchase the B-Schedule properties as alleged by the plaintiffs. The contract is to sell the A-Schedule (property)

for a sum of Rs. 2,35,000/- and a sum of Rs. 1,00,000/- was paid by way of advance. The defendant also received another sum of Rs. 10,000/-

towards advance. Thus, in all the defendant received a sum of Rs. 1,10,000/- towards the advance. In the sale agreement, it is stated that if the

purchasers come to the conclusion that the A-Schedule property could not be sold, then the defendant agreed to execute the sale deed in respect

of B-Schedule property, treating the advancement of the Rs. 1 lakh as sale consideration. The fact that the defendant received by way of advance

more than Rs. 1 lakh would go to show that the intention of the purchasers is to purchase the A-Schedule property. In the suit filed by Mehaboob

Bivi, there was no order of injunction restraining the defendant from alienating the A-Schedule property to the plaintiffs. Therefore, the said suit

cannot be considered as an impediment in the matter of executing the sale deed. In the written statement, there was no pleading to the effect that

the plaintiffs are not willing to purchase the A-Schedule property. It was therefore pleaded that the trial Court was correct in decreeing the suit as

prayed for.

We have heard the rival submissions.

The fact remains that the sale agreement dated 13-7-1980 was executed between the plaintiffs and the defendant. According to the sale

agreement, the defendant agreed to sell the A-Schedule property to the plaintiffs for a consideration of Rs. 2,35,000/-. On the date of execution of

the said agreement, the defendant received Rs. 1 lakh by way of advance. The defendant also agreed to convey the A-Schedule property free

from encumbrance. The defendant agreed to sell the A-Schedule property to plaintiffs either by way of separate sale deeds or by a consolidated

sale deed in favour of all the plaintiffs. Since there was a suit pending filed by one Mehaboob Bivi, one year time was originally granted and then

the time was extended by another six months. Endorsement was made to that effect on the sale agreement on 11-7-1981. In order to discharge a

prior mortgage, the defendant also received a further advance of Rs. 10,000/- on 21-9-1984. Endorsement to that effect was also made on the

sale agreement on 21-9-1984. Thus the defendant in all received a sum of Rs. 1,10,000/- by way of advance. In the sale agreement it is further

stated that even though the defendant and the plaintiffs are ready to complete the sale transaction, if due to some unforeseen event and in

accordance with the result filed by Mehaboob Bivi, when the purchasers come to the conclusion that the sale deed cannot be executed, with

regard to the A-Schedule property then the defendant agreed to execute the sale deed conveying the B-Schedule property in favour of the

plaintiffs by treating the advance of Rs. 1 lakh already paid by the plaintiffs as sale consideration. The relevant portion in Exhibit A-2 dated 13-7-

1980 on this aspect runs as under:--

(Vernacular matter is omitted - Ed.)

According to the learned counsel for the appellant the option to come to the conclusion viz., that the sale deed could not be executed with

regard to the A-Schedule property is left to all the parties including the defendant. According to the learned counsel for the appellant, because of

the pendency of the suit filed by Mehaboob Bivi, the sale deed with regard to the A-Schedule property could not be executed free from

encumbrance. Hence, the contingency as stated in the sale agreement could not take place. Therefore it is not possible to execute the sale deed in

respect of A-Schedule property. In such circumstances, the defendant is ready to execute the sale deed in respect of the B-Schedule property. But

the plaintiffs abandoned the contract.

A plain reading of the above portion in the sale agreement Exhibit A-2 would go to show that the option to come to the conclusion that the sale

deed cannot be executed with regard to the A-Schedule property is given to the plaintiffs only and not to the defendant.

In fact, the plaintiffs are ready and willing to purchase the A-Schedule property along with the encumbrance. PW 1 in his deposition has stated

that the defendant is willing to execute the sale deed along with the encumbrance. Therefore when the plaintiffs are willing to purchase the A-

Schedule property even along with encumbrance, the defendant cannot say that she is not in a position to execute the sale deed, since the A-

Schedule property is not free from encumbrance. In the written statement, there is no pleadings with regard to the contingent contract as argued by

the learned counsel for the appellant before this court. In the suit filed by the said Mehaboob Bivi, the injunction was only for restraining the

defendant from interfering with her possession and enjoyment of the suit property. In fact, there is no injunction restraining the defendant from

executing the sale deed in respect of the A-Schedule property. There is no clause in the sale agreement Exhibit A-32 to the effect that if there is

any encumbrance, A-Schedule property cannot be conveyed. Both the plaintiffs and the defendant knew that the suit filed by the said Mehaboob

Bivi was pending during the time when the sale agreement was executed. When the plaintiffs are willing to purchase the A-Schcdule properly with

encumbrance, it is not open to the defendant to say that she cannot sell the A-Schedule property with encumbrance. The B-Schedule property was

agreed to be sold if the purchasers came to the conclusion that ''A'' Schedule property could not be sold on account of some unforeseen result of

the suit filed by the said Mehaboob Bivi. Now it is seen that the pendency of the suit filed by Mehaboob Bivi cannot be an impediment in selling the

A-Schedule property. Further the plaintiffs are willing to purchase the A-Schedule property along with encumbrance. Hence the defendant cannot

refuse to sell the A-Schcdule property.

The learned counsel appearing for the defendant/appellant, submitted that according to the sale agreement, the property is to be sold to the

three plaintiffs, but only the first plaintiff came to the witness box to prove his case and the other two plaintiffs did not come to the witness box to

establish their case. Therefore, the other two plaintiffs are not entitled to a decree for specific performance of the contract, The suit was filed by all

the plain tiffs and one of the plaintiffs got into the box, to establish the case put forward by the plaintiffs. It is not necessary that all the plaintiffs

should come to the witness box to establish their case. In the sale agreement the defendant agreed to execute the sale deeds either separated or

cumulatively in favour of the plaintiffs or their nominees. Therefore, it is not open to the defendant to say that the other two plaintiffs did not come

to the witness box. But in so far as the defendant is concerned, she did not also come to the witness box but only her husband was examined. In

such circumstances, this line of argument advanced by the learned counsel for the appellant cannot be accepted.

The learned counsel for the appellant submitted that the rejoinder was sent by the plaintiffs, nine months after the reply notice was sent by the

defendant. Therefore, according to the learned counsel, the plaintiffs abandoned the contract. In fact, the plaintiffs originally sent their notice

demanding the defendant to perform her part of the contract. Therefore, a claim was already made by the plaintiffs against the defendant. The fact

that the rejoinder was sent after nine months would not by itself go to show that the contract was abandoned. The defendant after having received

Rs. 1,10,000/- from the plaintiffs for the purpose of celebrating the marriage of her daughter and for the purpose of clearing the prior mortgage

cannot now say that she cannot sell the A-Schedule property to the plaintiffs and the plaintiffs abandoned their contract.

The counsel for the appellant submitted that there is a delay of nine months in sending the rejoinder by the plaintiffs to the reply notice sent by

the defendant. Therefore, according to the learned counsel, the plaintiffs abandoned the contract. In support of this content ion, reliance was

placed upon a decision of this court rendered in Sriram Cotton Pressing Factory (P) Ltd. Vs. K.E. Narayanaswami Naidu, . According to the

facts arising in that case, the plaintiff entered into an agreement on 26-1-1957 to purchase the suit land for constructing a factory. Though originally

a period of two months was fixed for performance of the contract, the time was extended from time to time till 15-7-1958, to enable the parties to

get the area declared as an industrial area. The Government finally refused to approve the suggestion made by the Panchayat to declare the suit

land as an industrial area in December, 1957. Nevertheless, the defendant carried on correspondence with the authorities to gram permission to

install an 100 HP Motor to run a factory, in the suit plot and the sanction was granted on 13-9-1958. The plaintiff kept quiet for a period of 9

months from 15-7-1958 and it was only on 26-4-1959, he gave notice to the defendant calling upon him to complete the transaction according to

the agreement. It is on these facts, this court held that there was palpable delay on the part of the plaintiff to perform its part of the contract and

from the considerable delay and laches on its part, it could easily be inferred that there was a waiver or abandonment of the contract. But

according to the facts arising in the present case, a notice was sent by the plaintiffs calling upon the defendant to perform her part of the contract.

The defendant sent a reply. Thereafter the plaintiffs sent their rejoinder. In the above said circumstances, the first notice itself would constitute the

basis for the suit. In the above cited decision, the first notice itself was sent after nine months. Therefore, this decision will not be applicable to the

facts of the present case and there is no abandonment of the contract by the plaintiffs. Yet another argument advanced by the learned counsel

appearing for the appellant was that the contract is a contingent contract. The contingency being that if all the four parties including the defendant

came to the conclusion that the sale deed cannot be executed with regard to the A-Schedule property, then the defendant should sell the B-

Schedule property by treating the advance Rs. 1 lakh as sale consideration. According to the learned counsel, because of the suit filed by the said

Mehaboob Bivi is still pending, the defendant came to the conclusion that the sale deed with regard to the ''A'' Schedule property cannot be

executed without encumbrance. Therefore the contingency took place and hence the contract fell threw. In support of this line of argument, reliance

was placed upon a decision reported in Dalisukh v. Guarantee Life & Employment Insurance Company Ltd., AIR 1947 PC 182. According to the

facts arising in that case, one of the terms of the contract as proposed by the plaintiff was that earnest money was to be paid to the persons to be

named by the attaching Court at the time of its giving approval to the transaction and to be paid inside the Court. The Court refused to grant such

approval. Therefore, it was held that the contingency did not take place and hence the contract felt threw. But according to the facts arising in the

present case, the contingent contract was not pleaded by the defendant in the written statement. This point was also not argued before the trial

Court. Therefore, it is not now open to the appellant to plead this contingent contract before this Court. Further, the option to come to the

conclusion that the sale deed with regard to the A-Schedule property cannot be executed was left to the discretion of the plaintiffs. The plaintiffs

did not exercise this option. They are willing to purchase the A-Schedule property along with encumbrance and therefore the contingency as

alleged by the defendant did not take place in this case. Accordingly, the above said decision will not render any assistance to the defendant to put

forward her case.

Yet another decision relied upon by the learned counsel appearing for the defendant was that reported in Rajendrakumar Bhandari Vs.

Poosammal and Others, . In that case, this Court pointed out that in view of S. 20 of the Specific Relief Act, 1963 the exercise of discretion either

in the matter of grant or refusal of decrees for specific performance ought to be made judiciously and judicially, ought not to be arbitrary or

unreasonable exercise.

Thus, on a careful consideration of the facts arising in this case, in the light of the Judicial pronouncements cited supra, we hold that the trial

Court was correct in dismissing the suit. Hence we are not inclined to interfere with the same.

In the result, the judgment and decree of the trial Court are confirmed and the appeal is dismissed with costs.

Appeal dismissed.