S. Shanmughanathan vs Elangovan and another

This second appeal is filed against the decree and judgment for specific performance as confirmed by the first appellate Court.

The plaintiff entered into an agreement on 20.8.1980 and purchased a property for a sum, of Rs.15,000 and paid a sum of Rs.1,200 on the

same day. The sale shall be completed within nine months from the date of agreement. On 25.6.1981, the plaintiff issued a notice to the first

defendant intimating his readiness and willingness to purchase the property and demanding to execute the sale deed. To that, the first defendant

replied through advocate on 2.7.1981. In that it is stated that the first defendant wanted to have consultation with the second defendant regarding

this. Subsequently, on 3.7.1981, the second defendant purchased the said property for Rs.15,000. Thereafter, the plaintiff filed the suit on

8.7.1981 against the vendor as well as the subsequent purchaser for the relief of specific performance. The lower Court accepted the claim of the

plaintiff and decreed the suit and the first Appellate Court also has confirmed the judgment and dismissed the appeal filed by the second defendant.

Aggrieved by that judgment, the second defendant has filed the present second appeal.

The learned counsel for the appellant argued that the suit for specific performance is a discretionary relief and that should not be granted lightly,

merely because it is asked for. Further, he argued that the plaintiff had not proved that he was ready and willing throughout. He pointed out that

even during the examination before Court, the plaintiff had not stated that he was ready and willing even on that date. As per the decision reported

in Krishnasamy Naidu v. Ambrose, 1996 (1) LW 566, this Court held that it is a condition precedent to prove that the plaintiff was always ready

and willing to perform his part of the contract in a case of specific performance.

The learned counsel for the respondent argued that the plaintiff was not ready and willing throughout cannot be raised by the subsequent

purchaser; it can be raised only by the vendor. In support of that he cited a decision reported in K.R. Manickam Vs. P. Kumaravel and 4 others,

The learned counsel for the appellant pointed out that this decision of the Madras High Court has been overruled by the Supreme Court. This

principle has been negatived by the Supreme Court by the decision reported in Ram Awadh (Dead) by Lrs. and Others Vs. Achhaibar Dubey and

Another, , wherein the Supreme Court has held that even the subsequent purchaser can raise the plea that the plaintiff was not ready and willing

throughout. In this case, the very fact that the plaintiff issued a notice on 25.6.1981 proves that he was ready and willing on that date.

Subsequently, he filed the suit on 8.7.1981-He has also deposed before the Court that he wanted to purchase the property. This evidence is

sufficient to prove that the plaintiff was ready throughout to perform his part of the contract. On the other hand, even in the notice, Ex.A.3, the first

defendant specifically stated that he intended to consult about the demand for specific performance with the second defendant. This was intimated

by notice dated 2.7.1981. Surprisingly, on the very next day, viz., on 3.7.1981, the property had been purchased by second defendant. All these

evidence taken together, goes a long way to prove that the second defendant had purchased the property knowing full well about the agreement.

Therefore, he is not a bonafide purchaser. Since the sale is subsequent to the agreement, it is only subject to this agreement. Therefore, the tower

Court rightly granted the decree for specific performance and appellate Court rightly confirmed the same. There is nothing to interfere with the

findings of the impugned judgment. This second appeal is dismissed. No costs.