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Judgment
S. Tamilvanan, J.—This appeal has been preferred against the judgment and decree made in O.S. No. 26 of 1996 dated 25.07.1996 on the
file of the Subordinate Judge, Hosur.
The first appellant herein was the defendant in the suit before the Trial Court. The suit was filed by the respondent/plaintiff seeking a decree for
specific performance of contract of sale and for other consequential reliefs. After the demise of the first appellant/defendant, the other appellants
have been brought on record.
It is not in dispute that the suit property described in the schedule of the plaint belonged to the first appellant/defendant and the respondent
occupied a portion of the house as a tenant in the year 1907. Subsequently, there was an agreement entered into between the first appellant and
the respondent herein for sale of the property for a sale consideration of Rs. 3,25,000/- on 29.08.1988 and the first appellant had received a sum
of Rs. 35,000/- towards part of sale consideration and subsequently oh 01.11.1988 the first appellant received Rs. 65r000/- from the respondent
and also issued a receipt. The agreement for sale, dated 29.08.1968 and the aforesaid receipt for Rs. 65,000/- were marked as Exs. A1 and A2
before the Trial Court. Subsequently, on 19.12.1988 the first appellant received Rs. 19,000/- from the respondent and gave the receipt Ex. A3. It
is not in dispute that the aforesaid amounts were received by the first appellant towards the sale consideration. According to the
respondent/plaintiff, 15.02.1989 is the date fixed for executing the sale deed and for registering the same. Though the respondent was ready and
willing to perform his part of the contract by paying the balance of consideration, the first appellant/defendant, after having agreed for executing the
sale deed, inspite of the fact that the respondent was ready with the non-judicial stamp papers and approached, the first appellant''s wife started
scolding the respondent saying that the time was over for registering the sale deed, in order to evade the registration on 15.02.1989. Subsequently
a Panchayat was convened consisting of Town Panchayat President, who was examined as P.W. 3 and in the Panchayat, the first appellant agreed
to execute the sale deed after obtaining the certificates viz., valuation certificate from the Panchayat and no Objection certificate from Income Tax
authorities. However, on 27.02.1989 the first appellant issued a legal notice to the respondent stating that he had received only Rs. 1,10,000/-
although he had received Rs. 1,19,000/- towards sale consideration and also denied his responsibility in executing sale deed. The respondent sent
his reply, whereby he called upon the first appellant to execute the sale deed after receiving the balance of consideration as per the agreement. As
the first appellant was not ready and willing to perform his part of the contract, the respondent filed the suit seeking a decree for specific
performance of the contract.
In the written statement filed by the first appellant the execution of the sale agreement dated 29.08.1988 marked as Ex. A1 has been admitted.
Similarly the payments made under Exs. A1 to A3 hare also been admitted. According to the appellant on 15.02.1989 the respondent was not
ready with the balance of consideration in order to get the sale deed executed and therefore, there was a breech of contract committed by the
respondent and on that ground the respondent prayed for dismissal of the suit. The Trial Court had framed four issues and based on the evidence
and the arguments, the trial Court granted a decree for specific performance as prayed for in the suit. Aggrieved by the judgment and decree this
appeal has been preferred.
Mr. C.R. Muralidharan, learned Counsel appearing for the appellant would contend that time is the essence of the contract and as per the
agreement the transaction had to be completed within three months from the date of the agreement i.e. on or before 28.11.1988. However, the
date was finally fixed for completing the transaction on 15.02.1989 and that due to the financial inability of the respondent, the respondent was
incapable of paying the balance of sale consideration and hence such transaction could not be completed on 15.02.1989 and according to the
appellants, the respondent was not entitled to get a decree for specific performance.
In this appeal the following points arise for consideration for the disposal of the appeal:
i) Whether the respondent was ready and willing to perform his part of the contract as per the agreement entered into between the first
appellant/defendant? and
ii) Whether the appeal has to be allowed on the grounds raised by the appellants?
According to the appellants, time is the essence of the contract. Mr. C.R. Muralidharan, learned Counsel appearing for the appellants submitted
that the first appellant/defendant had entered into the contract of sale of his immovable property on 29.08.1988, under Ex. A1 agreement and
received Rs. 35,000/- as advance, as part of the sale consideration. Subsequently, as per the endorsement dated 01.11.1988 marked as Ex. A2,
he received Rs. 65,000/- from the respondent towards part of the sale consideration and as per Ex. A3 on 19.12.1988, the respondent had paid
Rs. 19,000/- to the first appellant/defendant under the receipt, Ex. A3. According to the learned Counsel for the appellants, the respondent had
not paid the balance of consideration on or before 15.02.1989 and got the sale deed registered that the respondent was not ready and willing to
oerform his part of the contract and therefore, he is not entitled to seek the decree of specific performance as prayed for.
Per contra, Mr. V. Nicholas, learned Counsel appearing for the respondent would contend that the suit transaction relates to sale of immovable
property, wherein the respondent is residing as tenant in a portion of the suit property. Further, as per Ex. A1, Agreement for sale, though the time
limit was fixed for the performance of the contract as three months from 29.08.1988, date of agreement, subsequently, as per the endorsement,
Ex. A2, the time limit had been extended for three months from 01.11.1988. However, before sighing, the first appellant/defendant had inserted a
sentence in the endorsement, that the sale had to be executed and registered before 15.02.1989. Therefore, as contended by the learned Counsel
for the respondent, it is clear that the date for performance of the contract has been extended by both the parties on various occasions and
therefore, it cannot be said that time is the essence of the contract. The Trial Court has also given a finding that time was not the essence of the
contract entered into between the parties. Considering the aforesaid facts and circumstances, I am of the view that the conduct of the parties would
show that time was not the essence of the contract. Accordingly this point is answered in favour of the respondent.
Learned Counsel appearing for the appellant further submitted that on 15.02.1989, though the respondent was ready with the required non-
judicial stamp papers for registering the document, he was not ready to pay the balance of consideration. Learned Counsel for the respondent
submitted that the respondent was ready and willing to perform his part of the contract and also intimated the first appellant/defendant to get
valuation certificate from the authorities, along with a certificate for Income Tax clearance. The learned Counsel for the respondent further
submitted that as the respondent was ready and willing to perform his part of the contract, he had purchased even the non-judicial stamp papers. It
is seen that Ex. A8, Sale Deed5 dated 11.03.1994 had been prepared in the name of Annammal wife of Kuppusamy the respondent herein in the
non-judicial stamp papers worth about Rs. 8,000/- and another sale deed in the name of the respondent in the non-judicial stamp papers for the
value of Rs. 12,500/-.
Learned Counsel appearing for the respondent contended that it was agreed between the parties to execute two separate sale deeds, one
portion of the property in favour of the respondent and the remaining portion In favour of his wife. Accordingly, both the sale deeds were prepared
and typed in non-judicial stamp papers as stated above. According to the respondent, P.W. 1, the first appellant/defendant had signed Ex. A8,
Sale Deeds in the presence of Panchayatars and witnesses. In order to avoid future litigation, the respondent asked the first appellant to get the
signature of his wife as one of the witnesses. But, the first appellant/defendant without getting the signature of his wife, scored out the signature
already made by him in Ex. A8 and returned the same to him and therefore, a, he gave a complaint before the Hosur police station, on 25.06.1994
and obtained the receipt Ex. A.11. P.Ws. 2 and 3 have also stated the same facts, in their evidence. The first appellant/defendant who was
examined as D.W. 1 has admitted in his cross examination that he had signed the sale deeds Ex. A8, prepared in the name of the respondent and
his wife and also the fact that he scored out his signature subsequently. It is seen that the non-judicial stamp papers were purchased by the
respondent totally for the value of Rs. 20,500/-. D.W. 1 has deposed in his evidence that he did, not agree to execute the sale deed in the name of
the respondent''s wife and as such avernments in the sale deed were incorrect and therefore, he scored out his signature that had been made
already by him. D.W. 1, has deposed that he had scored out his signatures in Ex. A8, since the avernments in the sale deed Ex. A8 were not made
properly. Having agreed to sell the property to the respondent for the sale consideration and also after signing two separate sale deeds prepared in
the non-judicial stamp papers one for the value of Rs. 12,500/- another for Rs. 8/000/- the first appellant/defendant should not have scored out his
signature already made on flimsy reasons. As found by the Trial Court it shows only the indifferent attitude and conduct of the first
appellant/defendant. The evidence of P.Ws. 1 to 3 would clearly show that the respondent was ready to pay the balance of consideration and for
getting the sale deed registered. If he was not ready and willing to perform his part of the contract, as found by the Court below, he could not have
purchased the stamp papers for the total value of Rs. 20,500/- and the first appellant/Defendant would not have signed Ex. A8. In the written
statement the first appellant has denied the receipt of Rs. 65,000/- towards the part of sale consideration received by him and also the
endorsement made on the agreement extending the time limit. Whereas, in his evidence he has admitted that he had received the aforesaid amount
from the respondent and made the endorsement. Considering the avernments of the written statement and the evidence of D.W. 1, the Court
below has given a finding that D.W. 1 had given false avernments in his written statement. Considering the evidence available on record, this Court
could find no error in the aforesaid findings given by the Court below. The respondent as P.W. 1 has stated that the suit property was brought, for
auction sale by the Bank, to which it had been mortgaged. In order to stop the auction sale, the respondent/P.W. 1 had also paid Rs. 7,000/-. In
support of his contention the receipt issued by Hosur Co-operative Housing Society Limited, has been produced and marked as Ex. A7, whereby
the respondent had paid the amount of Rs. 7,000/- in the name of the first appellant/defendant. Ex. A12, is the auction sale notice issued by Hosur
Co-operative Housing Society for the above said auction sale. The first appellant/D.W. 1 has not specifically denied the payment made by the
respondent but had stated that he did not know about the payment. However, he has admitted that the respondent had filed a suit against the Co-
operative Society before the Munsif Court, Hosur not to bring the suit property for sale. Had the respondent been not ready and willing to perform
his part of the contract, there could be no necessity for him, for making the payment and taking steps to stop the auction sale of the suit property
by the co-operative society.
A Perusal of the oral and documentary evidence available on record would clearly establish that the first appellant had entered into the sale
agreement, Ex. A1, with the respondent and received part of sale consideration on various dates, to the tune of Rs. 1,19,000/- and also extended
the time limit originally fixed for executing the sale deed. As per Ex. A8, it has been admitted that the defendant had also signed the prepared sale
deed, in the presence of witnesses, on 11.03.1994. Therefore, it Is clear that the first appellant/D.W. 1, having signed the sale deeds prepared in
non-judicial stamp papers, one in the name of the respondent and another in the name of his-wife and subsequently, without any just and proper
reason mischievously scored out his signatures, that had been put in the non-judicial stamp papers. The oral and documentary evidence available
on record, as found by the Trial Court would clearly establish that the respondent: was all along ready and willing to perform his part of the
contract. Whereas the first appellant/D.W. 1, alone had been unreasonable and also committed breach of contract. It is also not in dispute that the
respondent had deposited Rs. 2,06,000/- in the Trial Court on 14.08.1996 towards balance of consideration.
In the decision in Sukhbir Singh and others Vs. Brij Pal Singh and others, the Hon''bie Supreme Court has held that;
Law is not in doubt and it is not a condition that the respondents -should have ready cash with them. The fact that they attended the Sub-
Registar''s office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove
that they had necessary funds to pass on consideration and had with them the needed money for payment at the time of registration. It is sufficient
for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money
with them from the date of the suit till date of the decree.
In R. Vimalchand, M. Ratanchand v. Ramalingam and Ors. reported in 2003 (1) L.W. 484 the Court has held that;
When the appellants had deposited the amount pursuant to the orders of this Court and the amount was kept in Court deposit till the disposal of
the suit, that is more than enough to establish that the appellants were ready and willing to perform their part of the contract. Consequently, it
cannot be said that the appellants were not ready and willing to perform their part of the agreement.
In the decision, Vairavan v. K.S. Vidyanandam and 3 Ors. reported in 1995 (2) L.W. 50 , it has been held that Mere delay in coming to
Court cannot be a reason to refuse specific performance when plaintiff has come within the period of limitation under Article 54, Limitation Act (3
years from date fixed for specific performance).
In the instant case, there is no delay on the part of the respondent, in performing his part of the contract and the evidence available on record,
would clearly show that he was ready and willing to perform his part of the contract. It has been admitted that the first appellant, D.W. 1 had
affixed his signature in the sale deeds, Ex. A8, but not under threat or coercion, which shows that the respondent/plaintiff was ready and willing to
perform his part of the contract.
In Smt. Indira Kaur and Ors. v. Sari Shoo Lal Kapoor reported in 1988 SCC 1074, Hon''ble Supereme Court has held thus;
The real test as to whether or not the plaintiff was ready and willing to perform his part of the contract was for the defendant to call his bluff, in
case it was a bluff, by remaining present at the Sub-Registrar''s office on the appointed day, that is to say on August 16, 1977 as he was bound to
do if he on his part was ready and willing to execute the sale deed. In fact the lower Courts ought to have considered whether the defendant
himself was willing and ready to perform his part of the contract by executing the sale deed in favour of the plaintiff in discharge of the obligation
undertaken under the agreement of sale executed in 1967 in favour of the plaintiff.
In the light of the rulings of the Hon''ble Supreme Court and the decisions rendered by this Court referred & above, it is clear that the Court
can decide from the conduct of the parties based on the evidence available on record, whether the plaintiff was always willing to perform his part
of the contract or not. Similarly it can also be legally presumed whether the defendant was ready and willing to perform his part of the contract as
per the agreement entered into between the parties.
In the instant case, it has been clearly established that the first appellant/defendant had executed Ex. A 1, Agreement of sale in favour of the
respondent and received part of the sale consideration Rs. 35,000/-, subsequently received Rs. 65,000/- and Rs. 19,000/- respectively and also
extended the time limit. When the suit property was brought for sale, by the co-operative society, based on a mortgage, the respondent alone had
stopped the auction sale by making payment of Rs. 7,000/- which has also been established by way of oral and documentary evidence.
It has been admitted by the first appellant/D.W. 1, that he had signed the sale deeds prepared in the non-judicial stamp papers in the presence
of witnesses. But without any justifiable reason, when it was taken by him for getting witnesses signature from his wife, he mischievously scored his
signatures and returned the sale deeds which had been prepared in the non-judicial stamp papers worth about Rs. 20,500/-. With regard to the
endorsement for part payment of sale consideration, he has also given a false statement as found by (the Court below, which shows that the
defendant has not raised his defence, with clean hands.
In the aforesaid circumstances and in the light of the decisions referred to above this Court is of the view that the point for determination should
be answered in favour of the respondent and against the appellants. As there is no error or infirmity in the impugned judgment rendered by the
Court below, the appeal fails and the same is liable to be dismissed.
In the result, confirming the judgment and decree passed by the Court below, the appeal is dismissed. However considering the fact that the
contesting appellants are the legal representatives of the defendant, there is no order as to costs.