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Judgment
M.Venugopal, J.—The Appellants/Defendants have filed this instant Appeal before this Court as against the judgment and Decree dated
29.07.2003 in O.S. No. 492 of 1999 passed by the Learned Additional District and Sessions Judge, Fast Track Court No. IV, Chennai.
Plaint Facts:
The Respondent/Plaintiff and the Appellants/Defendants had entered into a Lease Agreement on 24.03.1998. As per the Lease Agreement, the
Respondent/Plaintiff agreed to take on lease Plot No. 13, Copper Beach Avenue, East Coast Road, Gudumiandithoppu, Akkarai, Sholinganallur
Village, together with Beach House, furniture and fittings, generator, swimming pool and appurtenant garden described in ''A'' and ''B'' schedule of
the Agreement for 11 months period. An option was given to renew the lease for a further period of 11 months on the same terms and conditions.
The Appellants/ Defendants had agreed to complete the construction and hand over the premises in a tenantable condition on or before
15.06.1998.
The Respondent/Plaintiff paid a sum of Rs. 2,75,000/-(Rupees two lakhs seventy five thousand only) as per Cheque No. 171997, dated
24.03.1998 drawn on Bank of India towards part payment of the total interest free refundable security deposit payable of Rs. 5,75,000/-(Rupees
five lakhs seventy five thousand only) and agreed to pay the remaining sum of Rs. 3,00,000/-(Rupees three lakhs only) at the time of handing over
possession of the premises after completion in a tenantable condition.
The Appellants/Defendants by their letter dated 08.06.1998 had requested the Respondent/Plaintiff to pay the balance security deposit amount
mentioning that the Respondent/Plaintiff had assured the same based on the progress of work. Also, the Appellants/Defendants stated that they
had exhausted all the resources in trying to complete the house and doing the landscaping. The Respondent/Plaintiff by its letter dated 20.06.1998
while denying the allegations had stated that it was the policy of the Company that Security Deposit was payable only at the time of taking
possession of the property. However, in the instant case, the Respondent/Company paid a part advance of Rs. 2,75,000/-(by making a
concession) in respect of the refundable security deposit.
According to the Respondent/Plaintiff, no further amounts would be paid till the house was completed in all respects. Further, the house was
made ready by 15.06.1998 for occupation by its Technical Director Mr. Dietor Grimm from abroad of the Respondent/Plaintiff Company.
The Appellants/Defendants wrote a letter dated 25.06.1998 requesting for the payment of balance amount of Rs. 3,00,000/-(Rupees three
lakhs only). Also, they requested the Respondent/Plaintiff to immediately take delivery of possession by paying the balance amount of Rs.
3,00,000/- by 01.07.1998. The Respondent/Plaintiff by a reply dated 01.07.1998 had informed the Appellants/Defendants to the effect that even
as on 28.06.1998 the house was not in a position to be occupied, with many works yet to be completed. Added further, the Respondent/Plaintiff
had informed the Appellants/Defendants that they would take possession of the house only when the internal and external works were completed.
The Respondent/Plaintiff requested the Appellants/Defendants to inform that if there was any further delay in regard to the completion of the
works they could decide whether to proceed further or cancel the same. There was no response from the Appellants/Defendants and the
Respondent/Plaintiff on 15.07.1998 called upon the Appellants/Defendants to refund the part advance amount of Rs. 2,75,000/- immediately. The
Respondent/Plaintiff was not given occupation of the premises even for a single day in a tenantable condition. The Technical Director of the
Respondent/ Plaintiff Company, who came from abroad, was forced to find out an alternate accommodation, since the Appellants/Defendants
failed to make the premises ready for his occupation. The Appellants/ Defendants were liable to pay interest on the amount of Rs. 2,75,000/- at
24% per annum from 24.03.1998 to the date of filing of the suit and thereafter at the same rate till the date of payment. Thus, the
Appellants/Defendants were jointly and severally liable to pay the suit amount of Rs. 3,30,000/-(Security part advance Deposit of Rs. 2,75,000/-+
interest of Rs. 55,000/- for the period from 24.03.1998 till date of filing of the suit at 24% per annum) together with costs.
Written Statement Pleas of 1st Appellant/1st Defendant (Adopted by the 2nd Appellant/2nd Defendant):
The Respondent/Plaintiff and the Appellants/ Defendants entered into an agreement to lease out the Appellants/Defendants building and
premises for the use of the Respondent/Plaintiff''s foreign Officer on a monthly rent of Rs. 57,500/-. The premises was to be given in ''a tenantable
condition'' with a garden and swimming pool, etc.'' As per agreement dated 24.03.1998, the premises was to be handed over by 15.06.1998. An
advance amount of Rs. 2,75,000/- was paid by the Respondent/Plaintiff to the Defendant at the time of agreement and Rs. 3,00,000/- was to be
paid before occupation.
The Respondent/Plaintiff made the Defendants spent nearly Rs. 5,00,000/- for furnishing an accommodation for stay of the
Respondent/Plaintiff''s Foreign Officer, including unnecessary expenses on swimming pool, Carpets, Furniture etc. Inasmuch as the
Respondent/Plaintiff failed to occupy the premises they were not entitled to refund of advance amount paid. In fact, the Respondent/Plaintiff should
pay the Defendant a monthly rent of Rs. 57,500/- from 01.07.1998. As per Clause-5 of the Agreement, the advance amount was refundable at
the time of vacating and handing over the possession of the premises back to the Appellants/Defendants. In the present case, the
Respondent/Plaintiff failed to take possession of the premises. Therefore, the Appellants/Defendants were not liable to pay any amount to the
Respondent/Plaintiff.
Though in the Lease Agreement dated 24.03.1998, it was mentioned that the premises would be made ready for occupation of the
Respondent/Plaintiff''s Foreign Officer by 15.06.1998, time was not a deciding factor. Moreover, as per Clause-8 of the Agreement, the
Respondent/Plaintiff would be paid a compensation if there was any delay in handing over the premises. As per Clause 5 of the Lease Agreement
dated 24.03.1998 the advance amount would not carry any interest.
Before the trial Court in the suit, four Issues were framed for adjudication. On the side of the Respondent/Plaintiff witness PW1 was examined
and Ex.A.1 to Ex.A.10 were marked. On the side of the Appellants/Defendant witness DW1 was examined and no documents were marked.
After contest, the trial Court on an appreciation of oral and documentary evidence available on record, came to the resultant conclusion that
the Appellants/Defendants were liable to pay the advance amount of Rs. 2,75,000/- to the Respondent/Plaintiff and accordingly, partly decreed
the suit with proportionate costs. Further, the trial Court negatived the claim of the compensation and interest @ 24% per annum claimed by the
Respondent/Plaintiff.
Being dissatisfied with the judgment and Decree passed by the trial Court in the main suit, the Appellants/Defendants have filed the present
Appeal as aggrieved persons.
The point that arises for rumination in this Appeal is:
Whether the Respondent/Plaintiff was entitled to claim a refund of advance sum of Rs. 2,75,000/- from the Appellants/Defendants as per Ex.A.2
Lease Agreement dated 24.03.1998 together with interest @ 24% per annum from the date of Plaint till date of realisation
The Contentions, Discussions and Findings on Point:
According to the Learned Counsel for the Appellants/Defendants, the trial Court failed to appreciate that the premises was to be handed over
by 15.06.1998 in a tenantable condition for which an interest free advance of Rs. 5,75,000/- was agreed to be paid by the Respondent/Plaintiff.
The Learned Counsel for the Appellants urges before this Court that the Respondent/Plaintiff paid advance of Rs. 2,75,000/- at the time of
entering into an agreement and another sum of Rs. 3,00,000/- was agreed to be paid before occupation of the house and although the house was
made ready at on additional cost of over Rs. 5,75,000/-, the further advance demanded by the Appellants as per Ex.A.4 letter dated 08.08.1998
was not paid by the Respondent/Plaintiff.
The plea of the Appellants/Defendants is that the necessary renovations and additions were made at the instance of the Respondent/Plaintiff. It
is also the contention of the Learned Counsel for the Appellants/Defendants that the house was made ready to be handed over to the
Respondent/Plaintiff on 15.06.1998, but the Respondent/Plaintiff neither approached nor enquired about the premises, which was not taken into
account by the trial Court.
The categorical stand of the Appellants/Defendants is that they informed the Respondent/Plaintiff as per Ex.A.6 letter dated 26.06.1998 that
the work and furnishings were completed and to pay the balance amount by 01.07.1998.
The Learned Counsel for the Appellants/Defendants submits that the Respondent/Plaintiff had not rescinded the contract or terminated the
agreement dated 15.06.1998.
The Learned Counsel for the Appellants/Defendants projects an argument that the agreement dated 15.06.1998 was hit by Section 29 of the
Indian Contract Act and in fact, the said agreement was void due to uncertainty.
The Learned Counsel for the Appellants/Defendants contends that PW1 in his evidence had categorically admitted that the
Respondent/Plaintiff Company was ready to take possession and therefore, time was not the essence of contract as per Section 63 of the Indian
Contract Act.
Lastly, it is the submission of the Learned Counsel for the Appellants/Defendants that the Appellants could not be made liable in law for the
breach committed by the Respondent/Plaintiff and to make an unlawful gain.
Conversely, the Learned Counsel for the Respondent/Plaintiff contends that the trial Court after carefully taking into consideration the pleadings
of the parties, oral and documentary evidence on record came to the right conclusion that the Appellants/Defendants were liable to pay a sum of
Rs. 2,75,000/- being the advance amount to the Respondent/Plaintiff together with costs and the same need not be disturbed by this Court at this
distance of time.
The evidence of PW1 and DW1 play a vital role for better appreciation of the subject matter of the suit between the parties.
25.PW1 (Senior Manager (Accounts)) in his evidence had deposed that it was correct to state that in Clause 6 of the Ex.A.2 Lease Deed dated
24.03.1998, it was mentioned that in the event of Lessor failure to hand over the demised premises in the tenantable condition within the stipulated
date, the Lessor shall pay to the Lessee a compensation amount of Rs. 2,000/- per day and further, that, in Ex.A.4 letter dated 08.06.1998, the
1st Appellant/1st Defendant had informed the Respondent/Plaintiff that if the balance of Rs. 3,00,000/- advance was paid for the stay of Mr.
Grimm, the building would be handed over for readiness and as mentioned in the said letter, the Appellants/Defendants were not paid the sum of
Rs. 3,00,000/-.
It is the further evidence of PW1 that as per Ex.A.6 letter dated 25.06.1998 of the 1st Appellant/1st Defendant, the Respondent/Plaintiff had
not taken possession of the building because of the reason during the inspection, the building was found to be not ready and it was correct to state
that in Ex.A.2 Lease Deed dated 24.03.1998, if the demised premises was not handed over within the stipulated date, a compensation was to be
awarded. Also, as per Ex.A.7 letter dated 15.09.1998, the Respondent/Plaintiff had demanded the refund of deposit of Rs. 2,75,000/- from the
1st Appellant/1st Defendant and further a compensation of Rs. 2,000/- was also demanded and moreover, they had cancelled the Ex.A.2 Lease
Deed 24.03.1998, but they had not filed the same.
DW1 (the 1st Appellant/1st Defendant) in his evidence had stated that he had signed the Ex.A.2 Lease Deed dated 24.03.1998 after
understanding the details of the same and further only after reading the B schedule portion in Ex.A.2 Lease Deed, he had affixed his signature.
Continuing further, it is the evidence of DW1 that in the Swimming Pool, facility of draining the water outside, water cleaning facility, generator
facility, for the entire building were made available on the day. But, he did not produce the receipts relating to generator, water cleaning plant and
that they had brought the generator to the suit building from the different place and he had not filed the receipts for the purchase of chlorine etc.
The evidence of DW1 was to the effect that the suit building was not let out on monthly rent for a sum of Rs. 57,500/- and for the past four
years, it was let out for Rs. 60,000/- and that he had written a letter stating that on 25.06.1998, the building was ready and further that, he had not
filed a case claiming compensation nor no such relief was claimed in the present suit against the Respondent/Plaintiff.
DW1 in his cross examination had categorically admitted that on 08.06.1998, as per Ex.A.3 letter dated 24.03.1998, the building work more
or less was completed and he demanded the balance payment to be given to him. Further, he had stated in his evidence that the meaning of ''more
or less complete'' means ''some works alone remained to be completed''.
The Appellants/Defendants (Lessors) had entered into a Lease Deed dated 24.03.1998 with the Respondent/Plaintiff Company (Lessee)
represented by its Chairman. A perusal of the Ex.A.2 Lease Deed dated 24.03.1998 shows that the Appellants/Defendants as Lessors had
offered to let out on lease the demised premises described in A and B schedule namely the Beach House situated in 50 cents of lands in Survey
No. 6 and 702/B part along with a right of way over 30 feet wide common pathway bearing in Unit No. 13, Sholinganallur Village, Saidapet
Taluk, Chengalpattu - MGR District, with the built up area of 4000 sq.ft. etc., to the Respondent/Plaintiff for a period of 11 months with effect
from 15th June 1998, with an option to renew the lease for further period of 11 months, on the same terms and conditions.
As per Clause 3 of Ex.A.2 Lease Deed dated 24.03.1998, the Respondent/Plaintiff had agreed to pay the Appellants/Defendants (Lessors) a
monthly rent of Rs. 30,000/- for the demised premises mentioned in A schedule and Rs. 27,500/- towards amenities such as generator, swimming
pool, use of appurtenant garden and other amenities mentioned in B schedule aggregating in all a sum of Rs. 57,500/-. Clause 5 of the Lease Deed
speaks of the payment of Rs. 2,75,000/- made by the Respondent/Plaintiff to the Appellants/Defendants through Cheque No. 171997 dated
24.03.1998 drawn on Bank of India. Also, the Appellants/Defendants (Lessors) had agreed to pay the balance of Rs. 3,00,000/- at the time of
handing over the demised premises after due completion in a tenantable condition.
It transpired from the contents of Clause 5 of the Ex.A.2 Lease Deed that the sum of Rs. 2,75,000/- payment made by the
Respondent/Plaintiff to the Appellants/Defendants was towards the part payment of total interest free refundable security deposit payable of Rs.
5,75,000/-. In fact, Clause-6 of the Lease Deed refers to the Appellants/Defendants undertaking to complete the construction and hand over the
demised premises in a tenantable condition on or before 15.06.1998 and in the event of failure to hand over the demised premises in a tenantable
condition with all amenities, the Appellants/Defendants shall pay to the Respondent/Plaintiff a compensation amounting to Rs. 2,000/- per day till
the handing over of demised premises.
In Ex.A.3 letter dated 24.03.1998, the Company Chairman had informed the 1st Appellant/1st Defendant that a Cheque No. 171997 for Rs.
2,75,000/- was enclosed drawn in his favour on Bank of India, Adyar, towards part payment of interest free refundable Security Deposit. In
Ex.A.4 letter dated 08.06.1998, the 1st Appellant/1st Defendant had informed the Managing Director of the Respondent/Plaintiff Company that
''an amount of Rs. 2.75 Lakhs was received by him as part advance as against the 10 months advance of Rs. 5.75 lakhs, the balance being
assured to be given on progress of work at the place''. Further, it was mentioned that though not stated in the agreement, it was mentioned orally at
the time of going into agreement, that the amount was much needed as he had to provide the required amenities and complete the work on time.
At this juncture, it is useful for this Court to make a mention that in Ex.A.4 letter, dated 08.06.98, the 1st Appellant/1st Defendant addressed
to the Respondent/Plaintiff had stated that he contacted the Managing Director of the Plaintiff during the last week of May 1998 who informed that
he was going abroad and Mr. Grimm would take care of the release of the amount etc.
That apart, in Ex.A.4 letter, dated 08.06.98, the 1st Appellant/1st Defendant had stated that he had exhausted all his resources in trying to
complete the house and do the landscaping, the balance advance amount was critical in completing the place on time as the Labourers were to be
paid every week, to keep the continuity.
Secondly, it was also mentioned that all the works at the place were more or less completed and the same could be handed over to Mr.
Grimm in a tenantable condition within 10 days on receipt of balance of Rs. 3,00,000/- advance.
As per Ex.A.2 Lease Deed, dated 24.03.98, the Appellants/Defendants as Lessors were to complete the construction and hand over the
demised premises in a tenantable condition on or before 15.06.1998 to the Respondent/Plaintiff. A reading of Ex.A.2 Lease Deed specifically
Clause 5 says that a sum Rs. 2,75,000/- was paid as advance on 24.03.1998 through Cheque towards part payment of the total interest free
refundable security deposit payable of Rs. 5,75,000/-. The balance of Rs. 3,00,000/- was agreed to be paid at the time of handing over the
possession of the demised property after the due completion in a tenantable condition. When Ex.A.2 Lease Deed dated 24.03.1998, clearly refers
to the terms of contract or agreement made between the parties, then, it is not known as to how the Appellants/Defendants project the plea
contrary to the Clauses of the agreement that the balance amount was assured to be given on progress of work at the place.
Section 91 of the Indian Evidence Act mentions that when the terms of any transactions were reduced to the form of the document they ought
to be proved by the production of the documents itself. It was to be seen how far the extrinsic evidence was admissible to contradict, vary, add to
or subtract from the terms of a document. When the parties had deliberately put their mutual agreements into right, it was only reasonable to
presume that they introduce into the written document namely the Lease Deed every material terms and circumstances. Resultantly, extrinsic
evidence would be rejected because such evidence, while deserving for less credit than the writing itself, would in many cases to substitute a
different or new contract for the one really agreed upon and this will work mischief.
What Section 91 of the Indian Evidence Act restrains is the admission of oral evidence to prove the contents of the document whether or not
the said terms could be modified or varied by proof of an oral agreement is a matter not covered by Section 91 of the Indian Evidence Act.
However, that is a subject matter of the Section 92 of the Indian Evidence Act, Section 91 of the Indian Evidence Act is concerned with the
exclusiveness of the documentary evidence, but Section 92 of the Indian Evidence act deals with the conclusiveness as well as the inclusiveness of
such an evidence.
In a case where a lease provided for the payment of rent in advance and the Lessee was not allowed to adduce evidence of a prior parol
undertaking to accept rent in arrears as per decision Henderson v. Arther (1907) 1 KB 10.
In the instant case, the plea of the Appellants/Defendants that a payment of Rs. 2.75 lakhs was made by the Respondent/Plaintiff towards part
advance and for the balance of Rs. 3,00,000/-, the same was assured to be given on progress of work at the place was really an extrinsic one,
which was not found in Ex.A.2 Lease Deed dated 24.03.1998. Nowhere, Ex.A.2 Lease Deed refers to the assurance given to the 1st
Appellant/1st Defendant on progress of work at the place the balance sum of Rs. 3,00,000/- would be paid. Therefore, the stand of the
Appellants is that this assurance was not mentioned in the agreement, but it was mentioned orally at the time of entering into the agreement, was not
accepted by this Court, contrary to the tenor and contents of Clause 5 of Ex.A.2 Lease Deed dated 24.03.98.
As a matter of fact, in Ex.A.4 Letter dated 08.06.1998 addressed to the Respondent/Plaintiff''s Managing Director, the 1st Appellant/1st
Defendant had categorically stated that he had exhausted all his resources in trying to complete the house etc. and that for handing over of the
house in a tenantable condition to Mr. Grimm he was to be paid the balance sum of Rs. 3,00,000/- advance. As such, as on 08.06.1998 in the
demised premises the works were not completed in entirety. For Ex.A.4 letter of the 1st Appellant dated 08.06.98 addressed to the
Respondent/Plaintiff, the Manager of the Respondent/Plaintiff Company had sent with Ex.A.5 reply dated 20.06.1998 stating that they would not
be in a position to pay any further advance till he completed his house in all response and it was ready for occupation by Dieter Grimm.
Also, the agreement provided that further advance payment would be made only at the time of taking possession of the property. Ex.A.5 reply
of the Respondent/Plaintiff, was in lie with the Clause 5 of the Lease Deed. In deed, the Clause 5 of the Lease Deed spoke of payment of balance
of Rs. 3,00,000/- at the time of handing over the possession of the demised property after due completion in a tenantable condition. As such, the
contra plea taken by the Appellants/Defendants was outrightly rejected by this Court.
In Ex.A.6 letter dated 25.06.1998, the 1st Appellant/1st Defendant had informed the Chairman of the Respondent/Plaintiff Company with
great difficulties that he arranged funds from outside and he working round the clock had completed the house and requested him to immediately
take delivery of the possession by paying the balance advance of Rs. 3,00,000/- latest by 01.07.1998. In Ex.A.8 reply letter dated 01.10.1998,
the Appellant had informed that Clause 6 of Ex.A.2 Lease Deed was not applicable in the Respondent/Plaintiff''s Lawyer Notice dated
24.10.1998 addressed to the Appellants/Defendants in and by which they were called upon to refund a sum of Rs. 2,75,000/- to the
Respondent/Plaintiff together with compensation from 15.06.1998 till the refund of the deposit at Rs. 2,000/- per day as per Clause 6 of the
Agreement entered into between them.
Ex.A.10 is the Appellants/Defendants Lawyer''s reply notice, dated 18.11.1998 addressed to the Respondent/Plaintiff''s Advocate wherein the
Respondent/Plaintiff was called upon either to occupy the premises got ready for the occupation of their Foreign Officer at enormous cost by their
clients after paying the agreed rent for Rs. 57,500/- per month with effect from 15.07.1998 to to date along with the balance amount of Rs.
3,00,000/- on interest thereon and forgo meagre amount Rs. 2,75,000/- paid.
Nowhere in Ex.A.2 Lease Deed dated 24.03.1998, there was a forfeiture clause in regard to the advance sum of Rs. 2,75,000/- paid on
24.03.1998 by the Respondent/Plaintiff.
In law, when a Lessor fails to deliver possession in spite of Lessee request to put it in possession, the Lessee may in the absence of a contract
to the contrary (1) repudiate or rescind the contract on the ground of failure of the Lessor to deliver possession as per decision AIR 1928 328
(Nagpur) . If the Lessee rescinds the whole contract he can recover the consideration, if any paid by him to the Lessors as per decision Ahmadar
Rahman v. Jami Niranjan AIR 1930 Cal 384. He may for sue for damages violating the obligations as per decision Secretary of State v. Venkayya
ILR 40 Mad 910.
Also, he may sue for Specific Performance as per decision AIR 1943 24 (Privy Council) . He may issue for the possession of the premises
demised, even though he has failed to pay the specified consideration as per decision Kandasami v. Ramasami AIR 1919 Mad 168.
Continuing further, he may also sue the third party in possession as per decision Zamindar of Vizianagaram v. Behara Surya Narayanana ILR
25 Mad 587.
It is to be borne in mind that the burden is on the Lessors to show that they discharged their obligations to put the Lessee in possession as per
decision Jogesh Chandra Roy v. Emdad Meah AIR 1932 PC 28.
Likewise, the burden is on the Lessee to prove that he has not got possession, if he has paid the rent under the Lease or he claims that he has
not received possession of a part of the property demised. The important question as to when the possession is to be delivered depends upon
contract entered into between the parties as per decision Obedur Rahman and Ors. v. Darbari Lal and Ors. AIR 1927 Lah 1.
The Respondent/Plaintiff through legal notice Ex.A.9 dated 24.10.1998 addressed to the Appellants/Defendant had stated that it had
demanded through letter dated 18.06.1998, 01.07.1998 and 16.07.1998 demanded the refund of lease deposit forthwith and also sent another
letter dated 15.09.1998 calling upon them to refund the deposit of a sum Rs. 2,75,000/- forthwith together with compensation etc. In the Plaint,
the Respondent/Plaintiff had averred that on 16.07.1998 he terminated the agreement and demanded refund on 06.07.1998 and 15.07.1998 when
it reiterated its demand. Even though the Respondent/Plaintiff had not filed the letter cancelling the Ex.A.2 Lease Deed/Lease Agreement yet the
Respondent/Plaintiff had demanded the return of part security advance of Rs. 2,75,000/- paid by it to the Appellants.
The non filing of the letter cancelling the Lease Deed was admitted by PW1 in his evidence. Since the Respondent/Plaintiff had rescinded the
contract because of the failure of the Appellants/Defendants to hand over the possession of the demised premises in law it was entitled to recover
the advance amount of Rs. 2,75,000/- paid by it to the Appellants. By no stretch of imagination it could be said that the time specified for
completing the construction and handed over the demised premises in a tenantable condition on or before 15.06.1998 was not a decisive factor.
Even on 08.06.1998 as seen from Ex.A.4, the Appellants/Defendants admittedly had not completed all the works at the demised premises in a
complete manner and they only mentioned that all the works at the place where more or less complete and further, they demanded the balance sum
of Rs. 3,00,000/- if demised premises was to be handed over to the foreigner in a tenantable condition.
It is to be noted that a plea that a particular contract is void for uncertainty as per Section 29 of the Indian Contract Act, 1872, is a question of
law, as opined by this Court. If the terms of the Contract are vague and uncertain then, the plea of unenforceability could be agitated even at the
Appellate stage as per decision Kandamath Cine Enterprises (Pvt.) Ltd. Vs. John Philipose, .
As per Section 63 of the Indian Contract Act, the promisee may extend the time specified for the performance of contract, which cannot be an
unilateral extension on his part alone as per decision Venkateswara Minerals v. Jugal Kishore 1985 (2) Civil L.J.695, at 700 (Kant).
Even though an agreement to extend time need not necessarily be put into writing yet the same may be proved by oral evidence tendered by
the parties. But in the present case on an overall assessment of the facts and circumstances clearly point out that the time mentioned in Ex.A.2
Lease Deed dated 24.03.98 ''handing over the demised premises in a tenantable condition on or before 15th June 1998'' was a decisive factor''.
The strict adherence to time in Ex.A.2 Lease Deed dated 24.03.1998 is the barometer for enforceability. Further, the terms of Ex.A.2 Lease Deed
are certain and they do not suffer from any vagueness. Also, the plea that the time was extended from the original contract was not proved to the
subject to the satisfaction of this Court in a convincing manner. As such Ex.A.2 Lease Deed could not be said as a void agreement as per Section
29 of the Indian Contract Act, 1872 and also the ingredients of Section 63 of the Indian Evidence Act could not be pressed into service, as opined
by this Court.
It is the utmost duty of a Court of Law to frame the issues for determination so as to clear the pleading and project the attention of the Court
and of the parties on the respective contentions which crop up for decision as per decision Mhausu Bhayji v. Davalat (1905) 7 BOM LR 174.
In law, the trial Court must state the decision on each issues and the reasons for arriving at such a decision. The purpose is to provide an
opportunity to the parties of appreciating the grounds upon which the decision proceeds with him to enable them to exercise, if they are advised
and thought fit to file appropriate further proceedings in the manner known to law and in accordance with law. But without spelling out the reasons
the trial Court in a judgment in Paragraph 9 had simply stated thus:
After carefully analysing the written arguments and other connected pleadings, evidence and exhibits, this Court is of the view that the Plaintiff is
entitled only for the refund of money paid on 24.03.1998 i.e., Rs. 2,75,000/- alone, etc.
It is clear that in the instant case, the trial Court has deviated from its obligation to state the reasons for arriving at a decision for the issues in
the manner known to law. In fact, a Court of Law must bring its independent judgment while answering the issues framed by it. In fact, the trial
Court''s observations in Paragraph 9 ''After carefully analysing the written arguments and other connected pleadings, evidence and exhibits, this
Court is of the view that the Plaintiff is entitled only for the refund of money paid on 24.03.1998 i.e., Rs. 2,75,000/- alone, etc'' are nothing but
cryptic wholesale mechanical way of dealing with the matter. In short, the judgment of the trial Court is not a speaking and reasoned one with
necessary qualitative and quantitative details. However, to prevent an aberration of justice and to promote substantial cause of justice, this Court
has not remanded the matter but disposes the Appeal on the basis of available material on record by passing a reasoned judgment on merits.
In the light of the qualitative and quantitative discussions mentioned supra, this Court comes to an inescapable conclusion that the
Respondent/Plaintiff is entitled to recover the part advance of Rs. 2,75,000/- paid by it from the Appellants/Defendants and viewed in that
perspective, this Court directs the Appellants/Defendants to pay the sum of Rs. 2,75,000/-to the Respondent/Plaintiff with proportionate costs.
However, the Respondent/Plaintiff is not entitled to claim any compensation or interest @ 24% per annum, since Clause 5 of the Ex.A.2 Lease
Deed itself mentions about the free of interest to the security deposit.
In the result, the Appeal is dismissed leaving the parties to bear their own costs. Consequently, the judgment and Decree dated 29.07.2003 in
O.S. No. 492 of 1999 passed by the Learned Additional District and Sessions Judge, Fast Track Court No. IV, Chennai, are affirmed by this
Court for the reasons assigned in this Appeal.