Soosai Michael Peter vs Balathasar

R.S. Ramanathan, J.—The unsuccessful Defendant, who lost in both the courts below is the Appellant.

The suit was filed by the Respondent/Plaintiff for specific performance of an agreement of sale executed by the Appellant/Defendant.

The case of the Respondent/Plaintiff was that on 1.3.1996, an agreement of sale was executed between the Appellant and the Respondent whereby, the Appellant agreed to sell 12-1/2 cents of property to the Respondent/Plaintiff at the rate of Rs. 40,000/- per cent and it was represented by the Appellant that in the oral partition between him and his brothers, the property mentioned in the agreement of sale was allotted to his share and after getting concurrence from his brothers, he would execute and register the sale deed. On the date of agreement, a sum of Rs. 81,000/- was paid as advance and on 19.10.1996, another sum of Rs. 5000/- was paid and endorsement was also made on the reverse of the agreement of sale wherein the Appellant admitted that his brother filed a suit in O.S. No. 450 of 1996 for partition in respect of the suit property and also obtained an order of injunction and therefore, he cannot execute the sale deed and as soon as final decree is passed in the said suit, he would execute the sale deed. It is the further case of the Respondent that the Appellant/Defendant did not inform about the final decree passed in that suit and was informing that the suit was not disposed and later the Respondent/Plaintiff came to know that final decree was passed even in the year 2002 and immediately, he sent a notice demanding execution of the sale deed and the Appellant/Defendant sent a reply stating that the agreement cannot be executed as the Respondent/Plaintiff did not come forward to pay the balance sale consideration within two months from the date of passing of the final decree and time was the essence of the contract and final decree was passed on 23.7.2002 and it was informed to the Respondent/Plaintiff and even thereafter, the Respondent did not come forward and he only wanted his money back and therefore, the agreement cannot be relied upon by the Respondent and the Appellant is also not bound to execute the sale deed. Therefore, the Respondent filed a suit for specific performance.

The Appellant/Defendant admitted the execution of the agreement of sale, receipt of advance and also the endorsement made on the reverse of the agreement and marked as Ex.A2 but, contended that as per the endorsement made in Ex.A2, the Respondent has to pay the balance sale consideration and get the document executed after the passing of final decree in O.S. No. 450 of 1996 and final decree was passed on 23.7.2002 and that was also made known to the Respondent/Plaintiff, but, within two months time, the Respondent/Plaintiff did not pay the balance sale consideration and only wanted his money back with interest and after a period of ten years, the Respondent/Plaintiff cannot file the suit to enforce the agreement of sale and the Respondent/Plaintiff was not having money with him and State Bank of India has filed a suit against the Respondent/Plaintiff and brought his property for sale and the Respondent/Plaintiff was not able to clear the loan amount and has also filed counter in the execution application stating that he has no money to pay and therefore, the Respondent was not ready and willing to pay the balance sale consideration and therefore, he is not entitled to the relief prayed for.

Both the courts below accepted the case of the Plaintiff and held that the final decree was not informed to the Respondent by the Appellant and on coming to know of the same, the Respondent issued notice followed by filing a suit and therefore, the Respondent was ever ready and willing to perform his part of the contract and it is the Appellant, who did not inform the Respondent about the passing of final decree and demanded payment of balance sale consideration and decreed the suit as prayed for. Hence, the second appeal.

The following substantial questions of law were framed and arguments were made on the above substantial questions of law:

1) Whether the courts below are correct in finding that the Plaintiff was ready and willing to get the sale deed executed without any reasons.

2) Whether the courts below are correct in finding that time is not essence of contract.

3) Whether the courts below are correct in brushing aside the documents filed by the Appellant which clearly prove that the Plaintiff has no means to purchase the property.

Mr. AR.L. Sundaresan, learned Senior Counsel appearing for the Appellant submitted that admittedly, the agreement of sale was dated 1.3.1996 and as per the endorsement, Ex.A2 dated 19.10.1996, the sale deed has to be completed within two months from the date of passing of final decree and final decree was passed on 23.7.2002 and the Plaintiff was informed orally by the Appellant even in the year 2002 and the Respondent/Plaintiff only wanted his money back and the Respondent was also not having sufficient means to pay the balance sale consideration and that is evident by the suit filed by State Bank of India in O.S. No. 112 of 1992 for recovery of loan amount and the Respondent did not repay the loan amount and also filed a counter in the execution petition which was marked as Ex.B12 wherein he has stated specifically that he has no means to pay the loan amount and that would prove that in the year 2004, he was not having sufficient amount to repay the loan and therefore, it cannot be contended that the Respondent had means to pay the amount and was ready and willing to perform his part of the contract. According to the learned Senior Counsel, the Respondent was not ready as he was not having the means to pay the amount and hence, he is not entitled to get specific performance of the agreement of sale. The learned Senior Counsel further submitted that the conduct of the Respondent would also disentitle him from claiming any right in the suit property and he has instigated various persons to file claim petitions in the execution application filed by the bank in O.S. No. 112 of 1992 as evidenced by Exs.B11 and B15 and he also instigated his brother to file O.S. No. 783 of 1982 to declare the decree passed in O.S. Nos. 84 of 1975 and 74 of 1976 as null and void as evidenced by Ex.B13 and that suit was allowed to be dismissed and all these facts would prove that the Respondent is a person, who is not honest and will go to any extent to prevent the execution of the decree passed against him and therefore, the Respondent is not entitled to the specific performance as the specific performance is purely a discretionary relief. He also relied upon the judgments in Ponnammal v. T. Balasubramaniam (2009) 1 MLJ 379, Ramalingam, G. v. T. Vijayarangam 2007 (1) CTC 243 and S. Maruthai and another Vs. Gokuldoss Dharam Doss and four others, for the proposition that the party seeking specific performance must show his continuous readiness and willingness from the date of execution till the date of filing of the suit. He also relied upon the decision in Ramnath Publications Pvt. Ltd. v. A.R. Madana Gopal (2008) 8 MLJ 873 for the proposition that mere pleading in the plaint and assertion by the Plaintiff that he is ever ready and willing to perform his part of the contract is not enough and the fact that stamp papers were not purchased and balance sale consideration was not tendered would prove that the Plaintiff was not ready to perform his part of the contract. He also relied upon the judgment reported in Vasantha v. M. Senguttuvan 1998 (I) CTC 186 for the proposition that mere possession of money is not sufficient and when the money was not offered, that would go against the interest of the Plaintiff. He also relied upon the judgment reported in Mani Vs. Batcha Sahib and 2 others, for the proposition that when the Plaintiff admitted that he did not have the money to buy stamps for registration, that would prove that he was not ready and willing to perform his part of the contract. The learned Senior Counsel, therefore, submitted that the Respondent/Plaintiff was not entitled to the relief prayed for.

On the other hand, Mr. P. Santiago Rajan, learned Counsel appearing for the Respondent submitted that both the courts below concurrently held that the agreement was genuine, time was not the essence of the contract, the parties agreed to complete the sale within two months from the date of passing of final decree and passing of final decree was not informed to the Respondent/Plaintiff by the Appellant and after coming to know of the same, notice was sent by the Respondent and immediately thereafter, the suit was filed and such concurrent finding of fact cannot be interfered with in the second appeal. The learned Counsel for the Respondent further submitted that both the courts below have further held that the Respondent was ever ready and willing to perform his part of the contract and such findings based on appreciation of evidence and findings of fact cannot be disturbed in the second appeal. He also relied upon the judgment reported in Pandurang Ganpat Tanawade Vs. Ganapat Bhairu Kadam and others, , Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. 1999 SAR (CIVIL) 623, Veerayye Ammal v. Seeni Ammal 2001 SAR (Civil) 923 and The State of U.P. Vs. Ram Chandra Trivedi, . He also submitted that as per the judgment of the Honourable Supreme Court reported in Veerayee Ammal Vs. Seeni Ammal, for the proposition that whether a party was ready and willing to perform his part of the contract cannot be a substantial question of law within the ambit of Section 100 of the CPC when both the courts have concurrently held that the Plaintiff was ready 10 and willing to perform his part of the contract and therefore, the findings of the courts below cannot be interfered with in the second appeal.

Heard both sides. In this second appeal, it is admitted by both the parties that the agreement was executed and Rs. 81,000/- was received as advance and subsequently, a sum of Rs. 5000/- was paid and parties agreed to complete the sale deed within two weeks from the date of passing of final decree in O.S. No. 450 of 1996. It is stated in the plaint as well as found in the agreement of sale, Ex.A1 that at the time of entering into the agreement of sale, the Appellant did not inform about the pending suit filed by his brother in O.S. No. 450 of 1996 and he only informed that the property was allotted to him in the oral partition and he would execute the sale deed after getting concurrence from his brother. Only on 19.12.1996, when the Respondent paid a sum of Rs. 5000/- towards the sale consideration, Ex.A2 was executed wherein the Appellant has mentioned about the suit filed by his brothers in O.S. No. 450 of 1996 and agreed to complete the transaction within two months from the date of passing of final decree. Therefore, though in the agreement of sale, Ex.A1 it was agreed between the parties that the sale has to be completed within six months, having regard to the endorsement made in Ex.A2, the parties agreed to complete the sale transaction within two months from the date of passing of the final decree. Admittedly, the final decree was passed on 23.7.2002 and it is the case of the Respondent that he was not aware of passing of final decree and he was enquiring the Appellant about O.S. No. 450 of 1996 and the Appellant did not give him any proper reply and only in the year 2005, he came to know that final decree was passed in O.S. No. 450 of 1996 and immediately, he sent a notice, Ex.A3 offering the balance sale consideration of Rs. 3,50,600/-. The Respondent also made it clear that though under Ex.A1, the Appellant agreed to sell 12-1/2 cents, in the final decree, the Appellant was allotted 11.14 cents and the Respondent agreed to purchase the same. The Appellant sent a reply, Ex.A6 and in that reply, though he has stated that he passed on the information to the Respondent about the passing of final decree, no action has been taken by the Appellant demanding payment of balance sale consideration or expressing his willingness to execute the sale deed by issuing a notice.

As stated supra, as per Ex.A2, the parties agreed to complete the sale consideration within two months from the date of passing of final decree. Therefore, passing of information about the passing of final decree is crucial to decide as to who was at fault. Though the Appellant had stated in the reply notice and written statement that he had informed about passing of final decree to the Respondent, has not issued any notice demanding balance sale consideration informing the Plaintiff about the passing of final decree. As per Ex.A2, it is the duty of the Appellant to inform the Respondent about the passing of final decree and thereafter, the Plaintiff has to pay the balance sale consideration and get the sale deed executed within two months. Therefore, unless the Appellant was able to prove that the Plaintiff was informed about the passing of final decree, the Plaintiff cannot be blamed for not paying the balance sale consideration. Except the assertive statement of the Appellant, no evidence has been produced by the Appellant to the effect that the Plaintiff was informed about the passing of final decree even in the year 2002. Further, in the reply notice, Ex.A6, the Appellant had stated that the Plaintiff had demanded his money back with 36% interest and he was willing to repay the amount with 9% interest and if the allegations were true, the Appellant would have sent a notice to the Respondent/Plaintiff immediately after the passing of final decree. Therefore, the conduct on the part of the Appellant and evidence available on record would lead to the conclusion that the Plaintiff was not informed about the passing of final decree and only in the year 2005, he came to know about the same and immediately he issued the notice. Therefore, the findings of the courts below that the Respondent/Plaintiff was ever ready and willing to pay the balance sale consideration and parties never intended to have the time as essence of the contract are correct and I concur with the findings.

Mr. AR.L. Sundaresan, learned Senior Counsel appearing for the Appellant heavily relied upon the counter filed in E.P in O.S. No. 112 of 1992 wherein the Respondent had admitted in the counter that he had no means to pay. Therefore, the learned Senior Counsel submitted that in the year 2004, the Respondent did not have the means to repay the loan and therefore, it cannot be stated that the Respondent was ready with the money to pay the balance sale consideration. No doubt, in Ex.B12, the Respondent has stated that he did not have the means to repay the loan amount.

According to me, that admission cannot be taken into consideration to arrive at a conclusion that the Respondent did not have the means. The Respondent may have so many reasons for not repaying the loan amount to the bank. That cannot be a reason to arrive at a conclusion that the Respondent did not have the means to pay the balance sale consideration. A person may have the means to repay the loan, nevertheless, he may dodge or delay the repayment of loan and the conduct of a person in respect of his transaction with third parties cannot be taken into consideration to find out whether he was ready and willing to perform his part of the contract with the person against whom, he seeks the relief of specific performance. The conduct of a person must be viewed only in respect of the Appellant and his conduct towards third party cannot be a deciding factor to assess the bona fide of the Respondent. Further, the Respondent herein was also not asked questions about the counter filed in E.P. No. 103 of 2004 in O.S. No. 112 of 1992. If the Respondent was confronted with the counter, Ex.B12, he would have given answer stating the reason for the plea taken in that counter. As stated supra, a person may have ever so many reasons for not repaying the loan and that will not lead to a conclusion that the Respondent was not having money. On the other hand, Exs.B23 and B29 would prove that the Respondent was having means. Under the above two documents, the Respondent purchased properties for Rs. 17,890/- and Rs. 23,675/-. Further, it is not the case of the Appellant that the Respondent was not having any other properties. The fact that various suits were filed against the Respondent and the bank has also advanced loan to the Plaintiff would prove that the Respondent/Plaintiff must be a man of worthiness and merely because he has filed a counter in the execution petition filed by the bank for recovery of loan it cannot be concluded that the Respondent did not have the means to pay the balance sale consideration.

In this case, immediately on coming to know about the final decree passed in favour of the Appellant, the Respondent issued a notice and also filed a suit. Hence, it cannot be stated that the Respondent was not having means. Further, as per the judgments relied upon by the learned Counsel for the Respondent and the Honourable Supreme Court has held that whether a person was ready and willing to perform his part of the contract, cannot be a substantial question of law when both the courts below have held that he was ready and willing and therefore, the substantial questions of law raised by the Appellant and framed in the second appeal are not substantial questions of law and even otherwise, having regard to the findings stated above, the substantial questions of law are also answered against the Appellant. The judgments relied upon by the learned Counsel for the Appellant can be considered in the light of the facts involved in this case and according to me, the principles of law laid down in those judgments cannot be applied to the facts of this case. Hence, the judgments of the courts below are confirmed.

In the result, the second appeal is dismissed. No costs. The connected miscellaneous petitions are also dismissed.