T. Venkatachalam vs D. Sandiago and P. Lakshmi

A. Selvam, J.—This appeal has been preferred against the judgment and decree dated 17.11.2009 passed in O.S. No. 99 of 2008 by the Fast Tract Court, Dindigul.

The first Respondent herein as Plaintiff has instituted O.S. No. 99 of 2008 on the file of the trial Court for the reliefs of specific performance and also for perpetual injunction, wherein the present Appellant has been shown as first Defendant.

It is averred in the plaint that the first Defendant and one Paranjothi have purchased the suit property and some other properties from one Kandasamy Raj under a registered sale deed dated 15.05.1986 and subsequently, a family arrangement has been made on 05.07.2002, wherein the suit property has been given to the share of the first Defendant and patta for the suit property stands in the name of the first Defendant. The first Defendant has agreed to sell the suit property and some other properties for a sum of Rs. 7,50,000/- in favour of the Plaintiff and on 11.05.2005 the first Defendant has executed an advance receipt and thereby received Rs. 2,50,000/-. Further, both the Plaintiff and first Defendant have agreed to sell house plots and out of sale proceeds of each house plot, the first Defendant is entitled to get 80% and remaining 20% must go to the Plaintiff and in that way, the first Defendant has agreed to receive the balance of sale consideration of Rs. 5/-lakhs and subsequently, a sale has been made in favour of one Pathmavathi and thereafter, the suit sale agreement has come into existence on 11.08.2005 by way of excluding the property which has been sold in favour of the said Pathmavathi. In the sale agreement dated 11.08.2005, it has been mentioned that the advance amount paid on 11.05.2005 has to be treated as advance. The Plaintiff has improved the suit property by way of spending huge money. The first Defendant has executed a sale deed in favour of the second Defendant and the same is nothing but sham and nominal and the same is against the sale agreement dated 11.08.2005. The Plaintiff has issued a notice to the Defendants and even after receipt of the same, the first Defendant has not come forward to execute a sale deed in favour of the Plaintiff. Under the said circumstances, the present suit has been instituted for the relief of specific performance and also for the relief of perpetual injunction.

In the written statement filed by the first Defendant and adopted by the second Defendant, it is averred that it is true to contend that the first Defendant and one Paranjothi have jointly purchased the suit property and some other properties under a registered sale deed dated 15.05.1986. It is also true to contend that the first Defendant has agreed to sell the suit property for a sum of Rs. 7,50,000/- in favour of the Plaintiff and thereby received a sum of Rs. 2,50,000/- on 11.05.2005. The first Defendant has entered into an agreement of sale with one Veerasamy on 25.01.2005. It is true that an agreement of sale has come into existence between the Plaintiff and the first Defendant on 11.08.2005. But the Plaintiff has failed to perform his part of the contract according to the terms and conditions mentioned therein. The first Defendant has chosen to issue a notice on 14.11.2005 to the Plaintiff and the same has been received by him and he has given a false reply notice on 14.12.2005, wherein also he has sought further time to perform his part of the contract. It is also false to contend that the Plaintiff is always ready and willing to perform his part of the contract. The suit sale agreement dated 11.08.2005 has become time barred and there is no merit in the suit and the same deserves to be dismissed.

On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues after analyzing both the oral and documentary evidence, has decreed the suit as prayed for. Against the judgment and decree passed by the trial Court, the first Defendant as Appellant has preferred the present appeal suit.

Before considering the rival submissions made by either counsel, the Court has to perorate the following admitted facts.

It is an admitted fact that the first Defendant is the owner of the suit property and the property which has been sold in favour of one Pathmavathi. It is also equally an admitted fact that the first Defendant and Plaintiff have entered into a sale agreement dated 11.05.2005 for a sum of Rs. 7,50,000/- and thereby the first Defendant has received a sum of Rs. 2,50,000/- by way of advance. Further it has been agreed that the first Defendant has received 80% of sale proceeds of each plot and the Plaintiff has agreed to receive 20%. It is also an admitted case of both parties that a fresh agreement of sale has come into existence on 11.08.2005 between them, wherein it has been agreed by the first Defendant to sell the suit property for a sum of Rs. 6,50,00/- and the Plaintiff has advanced a sum of Rs. 2,50,000/- and within a period of two months, the balance of sale consideration should be paid by the Plaintiff for getting a sale deed registered. After the sale agreement dated 11.08.2005, the first Defendant has issued a legal notice dated 14.11.2005, wherein it has been mentioned that the Plaintiff has not come forward to get a sale deed registered after paying the balance of sale consideration as agreed in the sale agreement dated 11.08.2005. Further 15 days time has been given to the Plaintiff. The Plaintiff has received the same and has given a reply notice dated 14.12.2005, wherein he has sought for time till Thai(January, 2006).

The crux of the case of the Plaintiff is that as per the terms and conditions mentioned in the sale agreement dated 11.05.2005, the suit sale agreement has come into existence on 11.08.2005 and even though two months has been fixed in the sale agreement dated 11.08.2005, time is not the essence of contract and as per the terms and conditions mentioned in the sale agreement dated 11.08.2005, the Plaintiff has made so many improvements in the suit property by way of spending his money and the Plaintiff is always ready and willing to perform his part of the contract. But the first Defendant has failed to perform his part of the contract and he executed a sham and nominal sale deed in favour of the second Defendant and therefore the Defendants are liable to execute a sale deed in favour of the Plaintiff as per the sale agreement dated 11.08.2005.

The main defence taken on the side of the Defendants is that even though the sale agreement dated 11.08.2005 has come into existence, the Plaintiff has failed to perform his part of the contract as per the terms and conditions mentioned therein and the first Defendant has given a legal notice dated 14.11.2005, wherein he expressed the total inaction on the part of the Plaintiff and further he has given 15 days further time to get the sale deed registered and the Plaintiff has given a reply notice dated 14.12.2005, wherein he has also sought for time till Thai(January, 2006) and the present suit has been instituted in the year 2008 and therefore the Plaintiff is not ready and willing to perform his part of the contract from the inception of the sale agreement dated 11.08.2005. Under the said circumstances, the Plaintiff is not entitled to get the discretionary relief of specific performance.

The trial Court after considering the rival submissions made by either side has decreed the suit as prayed for.

The learned Counsel appearing for the Appellant/first Defendant has endeavoured to attack the judgment and decree passed by the trial Court on the following grounds:

(a) The suit sale agreement has come into existence on 11.08.2005, wherein it has been agreed that the Plaintiff should get a sale deed from the first Defendant within a period of two months by way of paying the balance of sale consideration and the Plaintiff has failed to perform his part of the contract.

(b) The first Defendant after knowing the total inaction on the part of the Plaintiff, has given a legal notice dated 14.11.2005, wherein he expressed the total inaction of the Plaintiff. But, however he has given 15 days time to get the sale deed by way of paying balance of sale consideration. The Plaintiff has given a reply notice dated 14.12.2005, wherein he has sought for further time till Thai(January, 2006) and the said aspect has not been looked into by the trial Court.

(c) Even though as per reply notice dated 14.12.2005, the Plaintiff has sought for time till Thai(January, 2006), the present suit has been instituted in the year 2008. Under the said circumstances, the Court can very well infer that the Plaintiff is always not ready and willing to perform his part of the contract and the trial Court has failed to look into the same and therefore the judgment and decree passed by the trial Court are liable to be set aside.

The learned Counsel appearing for the first Respondent/Plaintiff has strenuously contended that prior to the suit sale agreement dated 11.08.2005, an agreement dated 11.05.2005 has come into existence between the Plaintiff and first Defendant, wherein sale consideration has been fixed at Rs. 7,50,000/- and on the date of execution, Rs. 2,50,000/- has been given to the first Defendant by way of advance. Further it has been agreed that out of sale proceeds of each house plot, 80% must go to the first Defendant and remaining 20% must go to the Plaintiff. The first Defendant has agreed to receive the balance of sale consideration by the said arrangement and since a portion of the property which has been mentioned in the sale agreement dated 11.05.2005 in favour of one Padmavathi, the fresh sale agreement i.e., the suit sale agreement has come into existence on 11.08.2005 and the same is nothing but the continuation of the previous sale agreement dated 11.05.2005 and even though two months time has been prescribed in the sale agreement dated 11.08.2005, the original conditions embodied in sale agreement dated 11.05.2005 have to be followed. Under the said circumstances, it cannot be said that the Plaintiff is always not ready and willing to perform his part of the contract and since the first Defendant has sold a portion of the suit property in favour of the second Defendant, the Plaintiff has chosen to issue a legal notice dated 04.09.2006 and even after receipt of the same, the Defendants have not come forward to execute a sale deed in favour of the Plaintiff. Under the said circumstances, the present suit has been instituted for the reliefs sought for therein and the trial Court after considering all the rival contentions raised on either side has rightly decreed the suit and therefore the judgment and decree passed by the trial Court are perfectly correct and the same do not warrant interference.

On the basis of the divergent submissions made by either counsel, the Court has to analyse the following factual as well as legal aspects.

(a) Whether the condition embodied in the sale agreement dated 11.05.2005 can be followed even after the suit sale agreement dated 11.08.2005?

(b) Whether the Plaintiff has always been ready and willing to perform his part of the contract?

(c) Whether the Plaintiff is entitled to get the discretionary relief of specific performance in view of the facts and circumstances prevailing in the present case?

Section 16 of the Specific Relief Act, 1963 deals with personal bars to relief.

Section 16(c) of the said Act reads as follows:

Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms the performance of which has been prevented or waived by the Defendant.

Since Section 16 of the Specific Relief Act, 1963 deals with personal bars, as per the provision (c) of the said Section, it is pellucid that if a party to an agreement of sale fails to aver and prove that he has always been ready and willing to perform his part of the contract, he is not entitled to get the discretionary relief of specific performance.

With the aforesaid legal backdrop, the Court has to further look into the present case. It is an admitted fact that an agreement of sale has come into existence on 11.05.2005 between the Plaintiff and first Defendant and the same has been marked as Ex.A-1. In Ex.A-1, it has been clearly mentioned that the first Defendant has agreed to sell the property mentioned therein for a sum of Rs. 7,50,000/- to the Plaintiff and on the date of Ex.A-1, he has received a sum of Rs. 2,50,000/- by way of advance. Further in Ex.A-1, it has been clearly mentioned that with regard to balance of sale consideration, 80% of sale proceeds of each plot has to be given to the first Defendant and 20% must be given to the Plaintiff. After Ex.A-1, the suit sale agreement has come into existence on 11.08.2005 and the same has been marked as Ex.A-2, wherein it has been mentioned that plot No. 5 has been sold to one Padmavathi (2070 Sq. ft.) and the sale price of remaining property has been fixed at Rs. 6,50,000/-and on the date of Ex.A-2, Rs. 2,50,000/- has been given to the first Defendant by the Plaintiff and the balance of sale consideration should be paid within a period of two months for getting a sale deed from the first Defendant. The main defence taken on the side of the Plaintiff is that even though the condition mentioned in Ex.A-1 has not been embodied in Ex.A-2, since Ex.A-2 has come into existence between the Plaintiff and first Defendant, both the Plaintiff and first Defendant have agreed to follow the conditions mentioned in Ex.A-1 and therefore the time mentioned in Ex.A-2 is not the essence of contract and it cannot be said that the Plaintiff has always not been ready and willing to perform his part of the contract. It is an admitted fact that the condition mentioned in Ex.A-1 has not been embodied in Ex.A-2. Even in Ex.A-2, no mention has been made with regard to Ex.A-1. As adverted to earlier, the first Defendant has given a notice dated 14.11.2005 to the Plaintiff and the same has been marked as Ex.B-3, wherein it has been clearly mentioned about the conditions prescribed in Ex.A-2 and the Plaintiff has failed to perform his part of the contract. But however, 15 days time has been given to perform his part of the contract. After receipt of Ex.B-3, the Plaintiff has given a reply notice dated 14.12.2005, wherein also it has not been specifically stated that both parties have agreed to follow the condition mentioned in Ex.A-1, even though it has not been embodied in Ex.A-2.

It is seen from Ex.A-1 and Ex.A-2 that Ex.A.1 has come into existence, wherein it has been agreed to sell the present suit property and the property which has been sold to one Padmavathi for a sum of Rs. 7,50,000/-. It is an admitted fact that plot No. 5 has been sold to Padmavathi. After the sale deed executed in favour of Padmavathi, the suit sale agreement dated 11.08.2005 has come into existence afresh, wherein no conditions have been stipulated as mentioned in Ex.A-1. Further as animadverted to earlier, even in Ex.B-4, it has not been specifically stated that both parties have agreed to follow the condition mentioned in Ex.A-1. Therefore, the Court cannot come to a conclusion that both parties have agreed to follow the condition mentioned in Ex.A-1, even though the same has not been embodied in Ex.A-2. Further, under Ex.B.4, the Plaintiff has sought for time till Thai(January, 2006) and the present suit has been instituted in the year 2008. At this juncture, the learned Counsel appearing for the Appellant/first Defendant has accited the following catena of cases.

(a) In K.S. Vidyanadam and Others Vs. Vairavan, , the Honourable Apex Court has held that where agreement specifying period of six months within which Plaintiff had to purchase the stamp papers, tender the balance amount of consideration and require the Defendants to execute the sale deed, total inaction for 2 1/2 years after initial payment of a small amount as earnest money by the Plaintiff would be a circumstances which would weigh against exercise of discretion for grant of specific performance of the agreement in favour of the Plaintiff.

(B) In Pushparani S. Sundaram and Others Vs. Pauline Manomani James (Deceased) and Others, , the Honourable Apex Court has held that mere filing of suit for specific performance and taking plea that he was ready and willing to perform his part of the contract is not sufficient to satisfy the requirements of Section 16(c) of the Specific Relief Act, 1963. Readiness and willingness to perform essential terms of contract may be inferred from totality of circumstances of conduct of the Plaintiff.

(C) In Umabai and Another Vs. Nilkanth Dhondiba Chavan (Dead) by Lrs. and Another, , it has been held that mere statement of the Plaintiff or a statement of his readiness and willingness was not sufficient to get discretionary relief of specific performance.

(D) In N.P. Thirugnanam (D) by L.Rs., Vs. Dr. R. Jagan Mohan Rao and others, , it has been held that as per Section 16(c) of the Specific Relief Act, in a suit for specific performance, the Plaintiff has to clearly aver and prove his alleged readiness and willingness.

E) In AIR 1995 SC 945 Jugraj Singh and another, v. Labh Singh and Ors., it has been held that continuous readiness and willingness at all stages from the date of agreement till date of hearing of suit must be proved.

the instant case, the suit sale agreement has come into existence on 11.08.2005 (Ex.A.2). The only defence taken on the side of the Plaintiff is that both the Plaintiff and first Defendant have agreed to follow the condition mentioned in Ex.A-1 i.e, the previous sale agreement. But in many places, it has been pointed out that whatever the condition mentioned in Ex.A-1 has not been embodied in Ex.A-2 and further for the first time, the Plaintiff has issued a legal notice dated 14.12.2005, wherein it has not been specifically stated that the Plaintiff and first Defendant have agreed to abide the condition mentioned in Ex.A-1, instead by virtue of the notice dated 14.12.2005, the Plaintiff has sought for extension of time till Thai (January, 2006). It is an agreed fact that in Ex.A-2, two months time has been given so as to give balance of sale consideration and also for getting a sale deed registered from the first Defendant. Since the aforesaid infirmities are found on the side of the Plaintiff and since the Plaintiff has failed to perform his part of the contract in accordance with the period mentioned in Ex.A-2, the Court cannot come to a conclusion that the Plaintiff has always been ready and willing to perform his part of the contract as per the mandatare provision of Section 16(c) of the Specific Relief Act, 1963. Since the Plaintiff has not performed his part of the contract in consonance with the provision of 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.

20.he learned Counsel appearing for the first Respondent has also accentuated the Court to look into the following decisions.

(i). The first and foremost decision is reported in Balasaheb Dayandeo Naik (Dead) through LRs. and Others Vs. Appasaheb Dattatraya Pawar, , wherein the Honourable Apex Court has held that the Defendant could not substantiate plea that time was essence of contract and that it was avoided to perform their part.

(ii) The second decision is reported in 2003 3 L.W 535 Begum Seeni Pichai Ammal v. Janab K. Muthu Kohamed (died) etc. and Ors., wherein also the Division Bench of this Court has held that the time is not the essence of contract in the case of immovable property.

It is an axiomatic and also everlasting principle of law that in the case of immovable property, time is not the essence of contract. But at the same time, in a suit for specific performance, the Plaintiff therein must clearly plead and prove his readiness and willingness from the inception of the sale agreement till filing of the suit.

In the instant case, the only shelter taken on the side of the first Respondent/Plaintiff is that a condition has been mentioned in Ex.A-1 and the Plaintiff and first Defendant have agreed to follow the same even after Ex.A-2, even though the said condition has not been mentioned in Ex.A-2. But the defence taken on the side of the first Respondent/Plaintiff cannot be accepted since the conditions mentioned in Ex.A-1 have not been embodied in Ex.A-2. Further the first Defendant has shown his readiness and willingness by way of giving Ex.B-3. Even at the risk of repetition, the Court would like to point out that the period mentioned in Ex.A-2 has become expired on 11.10.2005. Ex.B-3 has come into existence on 14.11.2005. In Ex.B-3, the first Defendant has shown his magnanimous attitude by way of giving 15 days time to the Plaintiff to perform his part of the contract. Even after 15 days time, the Plaintiff without availing the opportunity, has given a reply notice dated 14.12.2005 wherein he has sought for further time till Thai(January, 2006). Even after January 2006, immediately he has not come forward with the present suit. But after a lapse of two years, he has filed the present suit in the year 2008. Therefore, it is Pellucid that the total inaction on the part of the Plaintiff is rampant in the present case. Considering the fact that total inaction on the part of the Plaintiff is rampant in the present case and also considering that the present suit has been instituted for getting the discretionary relief of specific performance, it is very clear that the Plaintiff is not entitled to get the same. The trial Court without considering the above factual as well as legal aspects has erroneously decreed the suit.

In view of the foregoing ennunciation of both the factual and legal aspects, this Court has not found any considerable force in the argument advanced by the learned Counsel appearing for the first Respondent/Plaintiff and there is subsisting force in the argument advanced by the learned Counsel appearing for the Appellant/first Defendant and altogether the present appeal has to be allowed.

In fine, this appeal is allowed without costs and the judgment and decree passed in O.S. No. 99 of 2008 by the Fast Tract Court, Dindigul are set aside and O.S. No. 99 of 2008 is dismissed without costs. Consequently, connected miscellaneous petition is closed.