Madras High Court
T.R.K. Saraswathy vs R. Kandasamy on 21 October, 2011
Bench: K.Mohan Ram, G.M.Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2011 C O R A M THE HONOURABLE MR.JUSTICE K.MOHAN RAM AND THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI A.S.No.811 of 2008 & M.P.Nos.3, 4 and 5 of 2011 T.R.K. Saraswathy ... Appellant -Vs.- 1.R. Kandasamy 2.P.K.Venkatesan 3.K.Devarajan 4.K.Kannappan 5.K.Rajamani 6.K.Selvaraj 7.K.Prema 8.M/s.ABT Limited represented by its Director. ... Respondents Prayer:- Appeal Suit filed under Section 96 of the Code of Civil Procedure against the judgment and decree, dated 17.12.2007, made in O.S.No.420 of 2006 on the file of the Additional District Judge/Fast Track Court No.I, Coimbatore. For Appellant : Mr. S.V.Jayaraman, Senior Counsel, for, Mr. S. Thangavel For Respondents : Mr. M.S. Krishnan, Senior Counsel, for, Nos.1 to 7 M/s. Sarvabhauman Associates For Respondent No.8 : Mr.S.Parthasarathy, Senior Counsel for Mr.R.Bharadhkumar. - - - J U D G M E N T
(JUDGMENT OF THE COURT WAS DELIVERED BY MR. JUSTICE K.MOHAN RAM The plaintiff in O.S.No.420 of 2006 on the file of the Additional District Judge, Fast Track Court No.I, Coimbatore is the appellant in the above appeal.
2. The appellant filed O.S.No.420 of 2006 seeking for a decree of specific performance of sale agreement , dated 20.1.2005 directing the respondents to execute the sale deed in favour of the appellant after receiving the balance sale consideration and to put the appellant in possession of the suit property and alternatively, a decree for the refund of advance amount of Rs.25,00,000/- together with interest at the rate of 18% p.a. The appellant also sought for a decree for permanent injunction restraining the respondents from in any manner alienating or encumbering the suit property.
3. The suit was dismissed by the trial Court by a judgment and decree, dated 17.12.2007. Being aggrieved by that the plaintiff has filed the above appeal.
4. The case of the plaintiff/appellant is as follows:-
a. The appellant and the respondents 1 to 7 entered into a sale agreement, dated 20.1.2005. Under the sale agreement, the respondents 1 to 7 agreed to convey the total extent of 44 cents together with buildings bearing door Nos.527 to 530 comprised in S.F.No.531/1 situated in Sowripalayam Village, Coimbatore Taluk. The total sale consideration fixed as Rs.2,30,00,000/-. A sum of Rs.10,00,000/- was paid as advance towards sale consideration on the date of the agreement. The suit property was under the occupation of the tenants at the time of the agreement. In the agreement, for completing the sale, four months time was stipulated from the date of the tenants vacating the suit property. However, the time is not considered to be an essence of the agreement. The following amounts have been paid by the appellant to the respondents 1 to 7, namely, Rs.5,00,000/- on 2.2.2005, Rs.4,00,000/- on 24.2.2005, Rs.1,00,000/- on 5.6.2005 and Rs.5,00,000/- on 24.7.2005 and all the above payments received by the respondents have been endorsed at the back of the sale agreement. Thus, totally, a sum of Rs.25,00,000/- have been paid by the appellant towards sale consideration. The fact that the respondents have received the payments even after the expiry of the time stipulated will show that the time is not the essence of the agreement of sale.
b. According to the appellant, she was always ready and willing to perform her part of the agreement and she was keeping the sale price ready. The respondents 1 to 7 agreed to execute the sale deed after the tenants are vacated. It was represented by the respondents 1 to 7 that they have filed R.C.O.P.No.85 of 2005 on the file of the Principal District Munsif Court, Coimbatore against the tenant Balakrishnan for evicting him and after getting delivery of possession, they agreed to execute the sale deed free of encumbrance. The appellant was awaiting the result of the eviction proceedings. The appellant was parking her college buses in the adjacent vacant portion.
c. According to the appellant, she received a letter, dated 23.2.2006 from the respondents 1 to 7, in which it had been falsely contended that the time of four months stipulated was from 20.1.2005 and as the appellant had failed to pay the balance sale consideration, the agreement of sale stood cancelled. The appellant sent a reply, dated 24.2.2006 refuting all the averments of that letter. The respondents 1 to 7 are bound to execute the sale deed only after all the tenants vacated the suit property. One Mr.Sivasankar, as the representative of the appellant tried to contact the respondents 1 to 7 but they were evading to give proper answer. The appellant expressed her readiness to complete the sale. Thereafter, the respondents 1 to 7 sent a rejoinder, dated 2.3.2006 reiterating the contents of their earlier letter, dated 23.2.2006. While so, the fourth respondent sent a telegram on 11.3.2006 stating that they are ready to sell the suit property and demanded the appellant to complete the sale before 24.3.2006. As the appellant was away from Coimbatore, she sent a letter on 18.3.2006 expressing her readiness to complete the sale and called upon the respondents 1 to 7 to bring the original documents and encumbrance certificate pertaining to the suit property to enable her advocate to prepare the sale deed. The respondents 1 to 7 sent a reply, dated 23.3.2006 stating that the original documents could not be shown as the xerox copies of the documents were already handed over to the appellant. It was the respondents 1 to 7, who were postponing the execution of the sale deed under one pretext or the other. The respondents 1 to 7 did not even intimate about the result of the eviction proceedings.
d. On 25.3.2006 the respondents 1 to 7 sent a legal notice stating that seven days time was given to the appellant to pay the sale consideration. A reply notice, dated 29.3.2006 was sent by the appellant enclosing a draft sale deed and also demanding to hand over the encumbrance certificate for the period from 14.9.2001 to 31.12.2004, for which the respondents 1 to 7 sent a rejoinder, dated 6.4.2006 stating that within five working days, the sale has to be completed.
e. According to the appellant, the respondents 1 to 7 had not handed over the original parent documents for the perusal of the appellant and the appellant directly spoke to the fourth respondent herein to bring the original parent documents for inspection. The appellant sent a notice, dated 22.4.2006 to the counsel for the respondents 1 to 7 requesting him to advise the respondents 1 to 7 to bring the parent documents for verification of her counsel at the office of the counsel for the respondents 1 to 7 on 26.4.2006. But the said legitimate demand was not complied with, instead, they sent a legal notice, dated 26.4.2006 alleging that the agreement stood cancelled. The appellant in her letter, dated 18.3.2006 called upon the respondents 1 to 7 to collect the pay order, dated 11.2.2006 for Rs.25,00,000/- from her office, but they did not come and collect the same. Therefore, the appellant send a letter, dated 10.8.2006 enclosing the pay order to the respondents 1 to 7. After receiving the said letter, the respondents 1 to 7 sent a reply, dated 14.8.2006 containing false and frivolous allegations, however, they retained the said pay order.
f. The above correspondence clearly shows that the time is not the essence of the agreement of sale. It has been specifically averred in the plaint that the appellant through out has been ready and willing to perform her part of the contract. It is also stated that near the vicinity of the suit property, the appellant has got other properties. Since the respondents 1 to 7 refused to execute the sale deed, the suit has been filed.
g. In the plaint, it is further averred that the respondents 1 to 7 are making attempts to alienate the suit property suppressing the sale agreement in favour of the appellant and therefore, the relief of permanent injunction was also sought for.
5. The respondents 1 to 7 contested the suit inter alia contending as follows:-
a. The appellant is guilty of suppressio vari and suggestio falsi. The appellant has made several false statements and claims. The appellant is not entitled to the relief of specific performance or the refund of the advance amount. The receipt of a total sum of Rs.25,00,000/- towards sale consideration has been admitted. It is contended by the respondents 1 to 7 that the time is the essence of the agreement as the same has been specifically stipulated in the agreement itself. At the time of entering into the sale agreement itself, they produced the xerox copies of the title deeds and relevant documents for the perusal of the appellant and she was fully satisfied about the genuineness of the title of the respondents 1 to 7. The mere fact that the payment made by the appellant a couple of months after the four months time would not mean that the time is not the essence of the agreement. The period of four months would not commence from the date on which the tenants vacated the premises, but the said time commenced from the date of the agreement, namely, 20.1.2005.
b. The appellant was repeatedly made aware that the period of four months time was drawing to a close and the appellant was not paying the balance sale consideration. But the appellant was biding her time and making part payments on the ground that adequate funds were not made immediately available. The respondents 1 to 7 did not want to precipitate the matters, but were urging the appellant to hasten the payment of the balance sale consideration as the time had already elapsed. The appellant wants to make it appear as if she was always having the funds ready and she was only waiting for the eviction proceedings but the said contention of the appellant is not true as the appellant was not ready and willing to perform her part of the contract.
c. It is the further contention of the respondents 1 to 7 that they had vacated the tenants on 2.2.2006 itself and the appellant was duly informed of the same. The appellant was also informed that the period of the agreement had already elapsed but the appellant had not taken any steps to pay the balance sale consideration and there was no response. In such circumstances, the respondents 1 to 7 issued a letter, dated 11.2.2006 pointing out that the appellant had never come forward to get the sale deed registered and they also returned the sum of Rs.25,00,000/- , which was received as advance by way of the pay order. Only on receipt of the letter, the appellant had come forward with a reply, dated 24.2.2006 containing untenable contentions.
d. In the letter, dated 24.2.2006, it was alleged by the appellant that the tenants had vacated only few days prior to the date of the letter and that she was prepared to obtain sale deed within three days from the date of the letter and in response to the said letter, the respondents 1 to 7 issued a telegram, dated 26.2.2006 stating that the agreement has been cancelled and there can be no question of going back. The telegram was followed by a letter, dated 2.3.2006. On 11.3.2006, the respondents 1 to 7 decided to give the appellant one last opportunity to get the sale deed executed and hence, they issued a telegram, dated 11.3.2006 calling upon the appellant to pay Rs.25,00,000/- and also to pay the balance sale consideration and register the sale deed on or before 24.3.2006 but without expressing her readiness to pay the balance sale consideration and get the sale deed registered, the appellant issued a reply, dated 18.3.2006 stating that the period of four months shall commence only from 4.3.2006 when the letter dated 2.3.2006 issued by the respondents 1 to 7 was received by her. The appellant had shifted the period of agreement from 20.1.2005 to 4.3.2006. This is a clear breach of contract as the appellant had deviated from the terms of the agreement. The allegation that the vacating of the tenants was informed officially by the respondents 1 to 7 only on 4.3.2006 is not correct. Since the appellant was not having the funds readily with her, she was dragging on and in the very same letter, dated 18.3.2006, the appellant called upon the respondents 1 to 7 to collect a demand draft for Rs.25,00,000/- from her office.
e. Thereafter, a legal notice, dated 25.3.2006 was issued explaining all the background facts and has called upon the appellant to pay the entire sale consideration of RS.2,30,00,000/- within seven days from the date of receipt of the same. The appellant could have made use of the opportunity afforded to her under the legal notice, dated 25.3.2006. But she did not choose to do so since there was no funds ready even on that date. Therefore, the appellant issued a reply, dated 29.3.2006 on some technicalities. There was no condition in the sale agreement that encumbrance certificate for the suit property should be furnished upto date. But as a matter of abundant caution, the respondents 1 to 7 enclosed the encumbrance certificate to facilitate the appellant's cause, but instead of completing the sale transaction, the appellant had sought time by demanding the encumbrance certificate for the period from 14.9.2001 to 31.12.2004. The appellant called upon the respondents 1 to 7 to produce the original documents pertaining to the suit property. In commercial practice, the original documents will be handed over only at the time of the sale and no vendor would hand over the original documents prior to sale. The appellant has to satisfy as to the title to the suit property from the xerox copies of the title deeds and for that the original title documents are not needed. The appellant was putting one condition after another to gain time.
f. According to the respondents 1 to 7, there is no condition in the sale agreement to give the original documents and the encumbrance certificate. A rejoinder, dated 6.4.2006 was sent explaining the true and correct facts and giving the appellant further five days time to complete the sale. On 22.4.2006, the appellant gave a reply making it appear as if the time was running out on account of the respondents 1 to 7, but did not give any explanation for her failure to verify the original documents. Therefore, the respondents 1 to 7 treated the contract as cancelled as the appellant was not having the balance sale price readily with her.
g. It has been stated in the written statement that the appellant as the Chairman of Hindustan Engineering College, was out of station and returned only on 18.3.2006 to issue a letter expressing her readiness is not true. It is also totally false to state that the respondents 1 to 7 never intimated the result of the eviction proceedings. The demand for encumbrance certificate and original documents is unrighteous and the same would work only against the appellant. The demand draft for Rs.25,00,000/- was returned to the appellant and it was never taken back by the respondents 1 to 7. It is false to state that along with the letter, dated 10.8.2006, the appellant sent the same to the respondents 1 to 7. The appellant instead of pleading that she is ready and willing to pay the entire sale consideration of Rs.2,30,00,000/-, she pleaded in the plaint that she is ready and willing to pay the only a sum of Rs.2,05,00,000/- on the ground that it is the sale consideration to be payable. Thus, the appellant has not satisfied the requirement of the Specific Relief Act. It is possible that the appellant could have encashed the demand draft after it was returned to her.
h. It is the further case of the respondents 1 to 7 that in Coimbatore, the real estate price increased manifold over the past one and a half years and especially in the area where the suit property is situated and the appellant wants to take advantage of the increase in the price by projecting the theory that the time is not the essence of the contract. In the agreement of sale, time was made as essence of the agreement. The appellant was in breach of agreement during the entire period as the price has increased manifold and the extension of such an opportunity would cause incalculable harm to the seller. Therefore, the appellant is not entitled for the discretionary relief of specific performance.
6. On the aforesaid pleadings, the Court below framed the following issues:-
a. Whether the agreement of sale, dated 21.2.2005 is true, valid and legally enforceable?
b. Whether as per the agreement of sale, the plaintiff was ready and willing to pay the balance sale consideration and get the sale deed executed?
c. Whether the plaintiff is entitled for a decree directing the defendants to receive the balance sale consideration and execute the sale deed?
d. Whether the plaintiff is entitled to the alternative relief of refund of Rs.25,00,000/- with 18% interest p.a. from the defendants?
7. Before the trial Court, on the side of the appellant, the plaintiff was examined as P.W.1 and her husband was examined as P.W.2 and Exs.A1 to A35 were marked. On the side of the respondents, the fourth defendant was examined as D.W.1 and Exs.B1 to B4 were marked.
8. On a consideration of the evidence on record and the contentions of both the parties, the trial Court held that the time is not the essence of the agreement of sale and further held that the appellant was not ready and willing to perform her part of the contract and she was not having requisite amount in cash and on such findings, the trial Court refused to grant the decree for specific performance. The trial Court also denied the alternate remedy of the refund of the advance money paid by the appellant by way of pay order since it has not been proved that the pay order had been encashed by the respondents 1 to 7. 9. Being aggrieved by that the above appeal has been filed. 10. Heard both.
11. Mr. S.V.Jayaraman, learned Senior Counsel appearing for the appellant has made the following submissions:-
a. According to the learned Senior Counsel, taking into consideration of the fact that even after the expiry of the period of four months as stipulated in the agreement of sale Ex.A1, the respondents 1 to 7 have received payments from the appellant, the Court below has rightly come to the conclusion that the time is not the essence of the contract. The learned Senior Counsel submitted that the appellant is an income tax assessee from the year 1984; she is the proprietrix of M/s.Standard Power Distributors and M/s. Electromech Industries and as the Correspondent of M/s.Hindustan College of Arts and Science, M/s. Hindustan College of Engineering and Technology and M/s. Hindustan Matriculation and Higher Secondary School; she is also the shareholder of M/s. R.K.Revathi Industries, M/s.Standard Wire Products and M/s. Hindustan Transformer and Oil Products and she is the Director of M/s.Vivin Controls Private Limited and as such, the appellant could easily arrange the balance sale consideration of Rs.2,05,00,000/-.
b. According to the learned Senior Counsel, the appellant was always ready and willing to perform her part of the contract. The learned Senior Counsel submitted that it is not the case of the respondents 1 to 7 that the appellant is not in possession of sufficient means to raise necessary funds to complete the sale transaction, but it is the case of the respondents 1 to 7 that she was not having money either in her hands or bank account. The learned Senior Counsel submitted that it is not necessary that the appellant should either hold the required amount in cash in hand or in the bank account from the date of the sale agreement. The learned Senior Counsel further submitted that it is sufficient if the appellant proves her readiness and willingness and her capacity to raise necessary funds at the time of completing the the sale transaction. The learned Senior Counsel submitted that the finding of the Court below that the appellant was never ready and willing to perform her part of the contract as she was not having necessary funds readily with her is not correct. The observation of the trial Court that the appellant was imposing one condition after another only to gain time is not correct. The learned Senior Counsel submitted that the appellant wanted the respondents 1 to 7 to produce encumbrance certificate upto date and also wanted them to make available the original title deed pertaining to the suit property to verify the title to the suit property. Even, if there is no stipulation in the agreement of sale that the vendors should produce the encumbrance certificate upto date and produce the original title deeds for the inspection of the appellant for satisfying the title of the vendors. It is the bounden duty of the vendors to prove to the satisfaction of the purchaser that they have got valid title and the property agreed to be sold is free from encumbrance and for that they should produce the original title deed and the encumbrance certificate upto date for the inspection of the appellant and therefore, the aforesaid request made by the appellant cannot be termed as imposing new conditions or making new demands contrary to the terms of the agreement.
c. The learned Senior Counsel submitted that a perusal of Ex.A.23, dated 21.3.2005 will show that the husband of the appellant had sold his immovable property for a consideration of Rs.1,49,77,000/- and under Ex.A24, dated 21.3.2005, the husband of the appellant had sold his another property for a sale consideration of Rs.1,75,23,000/-. Thus, as on 21.3.2005, the husband of the appellant had in his hand, a total sum of Rs.3,25,00,0000/-. Even according to the respondents 1 to 7, the last tenant Balakrishnan had vacated and handed over the possession of the suit property only on 2.2.2006. As per the terms of agreement of sale Ex.A1, the respondents 1 to 7 before the execution of the sale deed should vacate the tenants and hand over the possession of the suit property to the appellant at the time of the execution of the sale deed. Therefore, according to the learned Senior Counsel, it was uncertain as to when the tenants will be vacated and only after vacating the tenants, the respondents 1 to 7 can put the appellant on notice that the tenants have vacated and they are ready to execute the sale deed and hand over the vacant possession of the suit property and thereafter, only four months time stipulated in the sale agreement will commence.
d. According to the learned Senior Counsel, though the last tenant, namely, Balakrishnan was said to have been evicted and possession had been taken from him on 2.2.2006, the same was not informed to the appellant immediately either orally or in writing, but only under Ex.A4, dated 2.3.2006, the same was informed to the appellant. The learned Senior Counsel pointed out that in Ex.A2, dated 23.2.2006 also, there is no mention about the vacating of the tenants by the respondents 1 to 7. In Ex.A3 letter, dated 24.2.2006, the appellant has clearly pointed out that the time was not considered as essence of the agreement as the respondents 1 to 7 have received part payment of Rs.5,00,000/- even on 24.7.2005, i.e., after the expiry of the period of four months from the date of Ex.A1 sale agreement and she was keeping the balance sale price ready and it appears that only few days ago, the above said tenant has vacated and the portion is kept under lock and key. Immediately, her representative Mr.Sivasankar tried to contact them but they were evading to give answer to him. In the very same letter, the appellant had called upon the respondents 1 to 7 to specify a date within three days to enable her to prepare the sale deed for completion of the sale.
e. The learned Senior Counsel submitted that in Ex.A4, dated 2.3.2006, the respondents 1 to 7 have not mentioned the date on which the appellant was informed orally about the vacating of the tenants. Having not mentioned about the vacating of the tenants in Ex.A2, only in Ex.A4 the said fact has been mentioned since the appellant had mentioned in Ex.A3, dated 24.2.2006 that only few days earlier, the tenant appears to have been vacated, and therefore, it cannot be construed that the appellant had knowledge about the vacating of the tenant. There is absolutely no evidence to show that the respondents 1 to 7 had orally informed the appellant before their letter, dated 2.3.2006 that they had vacated the tenant. Therefore, without even informing the appellant about the vacating of the tenant and without calling upon the appellant to complete the sale, as early as on 11.2.2006 itself, the respondents 1 to 7 have obtained a pay order in favour of the appellant on 11.2.2006 itself and according to them, they sent the pay order, dated 11.2.2006, for Rs.25,00,000/- along with their letter, dated 11.2.2006. But according to the respondents, the letter, dated 11.2.2006 was not received by the appellant and therefore, the pay order was enclosed with Ex.A2.
f. The learned Senior Counsel submitted that the tenants have vacated, according to the respondents 1 to 7, on 2.2.2006 only. On 11.2.2006 itself, they have obtained the pay order in favour of the appellant and they have cancelled the agreement Ex.A1 by their letter, dated 11.2.2006 itself. Thus, the intention of the respondents 1 to 7 was clear that they were not ready even before 11.2.2006 itself to execute the sale deed in favour of the appellant. According to the respondents 1 to 7, the price of the immovable properties at Avinashi Road in and around the suit property, has considerably appreciated and therefore, their conduct in obtaining the pay order on 11.2.2006, i.e., within nine days from the date of vacating of the tenants from the suit property will show that they had already decided to cancel Ex.A1 sale agreement.
g. The learned Senior Counsel pointed out that though the respondents 1 to 7 have stated in Ex.A4 that regarding the vacating of the tenants the appellant was informed several times and she was requested to get the sale deed executed by the respondents 1 to 7, nowhere, in Ex.A4 it is mentioned as to when they informed the appellant. The learned Senior Counsel submitted that such averment has not been made in Ex.A2. In Ex.A2, what is stated is that within the period of four months, since the appellant had not come forward to get the sale deed executed, the sale agreement stands cancelled. But the aforesaid stand has been taken in Ex.A4 only as an afterthought. Thereafter, under Ex.A5 telegram, dated 11.3.2006, the respondents 1 to 7 expressed their readiness to sell the property and wanted the appellant to return back the pay order, dated 11.2.2006 and get the sale deed registered before 24.3.2006 and also called upon the appellant to send the draft sale deed.
h. According to the learned Senior Counsel, in Ex.A6, dated 18.3.2006, the appellant had clearly stated that the cut-off date fixed by the respondents 1 to 7, namely, 24.3.2006 is too short since as per the agreement, dated 20.1.2005, the appellant has four months from the date of vacating all the tenants and the respondents have vacated all the tenants only on 2.2.2006 and the same has been officially intimated to the appellant only on 4.3.2006 by their letter, dated 2.3.3006. In the very same letter, the appellant had called upon the the respondents 1 to 7 to hand over all the relevant documents including the encumbrance certificate for 30 years which will enable the appellant to prepare the sale deed and to bring the originals of all the documents to verify the same by her advocate before the preparation of the sale deed. By the same letter, the appellant called upon the respondents 1 to 7 to come and collect the pay order for Rs.25,00,000/- from her office. If it was the real intention of the respondents 1 to 7 to complete the sale transaction, any one of the respondents could have gone to the appellant's office and collected the pay order, but they have not done so . This conduct of the respondents 1 to 7 clearly show that they were not really interested in completing the sale transaction. The request of the appellant to hand over the encumbrance certificate for the period of 30 years and produce the original title deeds to prepare the sale deed by her advocate is reasonable and it is a legitimate demand and such production of encumbrance certificates and the original title deeds are normally insisted upon by every vendor to get the legal opinion and to prepare the sale deed. This reasonable request of the appellant has been wrongly characterised as imposing conditions one after another by the respondents 1 to 7 and the trial Court. According to the learned Senior Counsel, the said observation of the trial Court is not correct.
i. By Ex.A7 letter, dated 23.3.2006, the respondents 1 to 7 informed the appellant that they have applied for the encumbrance certificate and on receipt of the same, the same would be sent to the appellant and within one week from the date of receipt of the encumbrance certificate, the appellant should complete the sale. But the said letter is silent about the production of the original title deeds for the inspection of the appellant's counsel. In the legal notice, Ex.A8, dated 25.3.2006 sent by the counsel for the respondents 1 to 7, it is stated that the request of the appellant to bring the original title deeds for verification by her advocate is highly unfair. It is the duty of the appellant to verify the encumbrance certificates after the date of the agreement. But, however, the encumbrance certificate for the period from 1.1.2005 to 22.3.2006 is being enclosed and further, the period of one week from the date of receipt of notice was given to the appellant to pay the balance sale consideration and complete the sale transaction and it was also informed that no further time will be given and if the appellant fails to get the sale deed executed, the agreement deemed to be cancelled.
j. The learned Senior Counsel submitted that in Ex.A9 legal notice, dated 29.3.2006 sent by the appellant's counsel, it was reiterated that the four months time to be reckoned from the date of the tenants vacating from the property. The contention of the respondents 1 to 7 that they handed over all the copies of documents and encumbrance certificates is not correct. But they handed over three encumbrance certificates pertaining to the periods, namely, 1.1.1977 to 28.11.1984, 1.1.1986 to 28.11.1994 and 29.11.1994 to 13.9.2001 and along with their legal notice, the respondents 1 to 7 have sent the encumbrance certificate for the period from 1.1.2005 to 22.3.2006 and therefore, they are bound to furnish the encumbrance certificate for the period from 14.9.2001 to 31.12.2004. It has been specifically stated in Ex.A9 that the appellant had not obtained any legal opinion. It has also been reiterated that the respondents 1 to 7 did not inform the result of the eviction proceedings and the respondents 1 to 7 with an intention to make unjust enrichment sent back the advance amount to the wrong address and now the prices of the land have gone up slightly. Along with Ex.A9, the draft sale deed was sent for the perusal of the respondents 1 to 7 for their approval and the respondents were required to produce the original documents since the sale price involved is Rs.2,30,00,000/-. The respondents 1 to 7 were called upon to produce the encumbrance certificate for the period from 14.9.2001 to 31.12.2004 and it was also informed that the appellant is keeping the balance sale price ready.
k. For Ex.A9, Ex.A10 reply notice, dated 6.4.2006 was sent by the respondents 1 to 7. Along with the said notice, the encumbrance certificate for the period from 1.1.2001 to 31.12.2004 was enclosed. It is further stated in Ex.A10 that since the original documents pertain to other properties also, it is not possible for them to deliver those original documents to the appellant. But she can come and peruse those documents as and when required by giving prior intimation. By the said notice, the appellant was informed that she should pay the balance sale consideration within five working days to complete the sale, otherwise, no further extension of time will be given.
l. Thereafter, Ex.A 11 legal notice was sent by the learned counsel for the appellant on 22.4.2006 to the counsel for the respondents 1 to 7. In Ex.A11, it has been specifically pointed out that the draft sale deed had already been sent to him and the appellant requested for the production of the original documents but the same were not shown to the appellant and when the appellant's husband directly spoke to Mr.Kannappan, fourth defendant, to bring the original parent documents, it was represented that one of the defendants was out of station. But it has been mentioned that the time is running out and hence, the counsel for the appellant requested the counsel for the respondents to advise the respondents to bring the documents for verification on 26.4.2006 at his office. Thereafter, the counsel for the respondents 1 to 7 sent a notice, dated 26.4.2006 stating that the main aim of the appellant was to drag on the matter endlessly as she has no intention to purchase the property, the appellant did not meet the respondents and requested for the production of original parent documents to complete the sale. Since the time given has expired and the appellant did not perform her part of the contract, the respondents 1 to 7 are not willing to sell the property to the appellant and the agreement of sale was treated as cancelled.
m. The learned Senior Counsel submitted that after the draft sale deed was sent by the appellant along with Ex.A9, dated 29.3.2006, in the further correspondence, the respondents 1 to 7 have not even referred to the draft sale deed. The learned Senior Counsel submitted that silence on the part of the respondents 1 to 7 regarding the draft sale deed will show that they had no intention to sell the suit property. If really the intention of the respondents 1 to 7 was to sell the property, then they could have either approved the sale deed or suggested necessary changes in the draft sale deed if it was not in order and the failure to do so will clearly establish that they were not ready to perform their part of the contract.
n. The learned Senior Counsel submitted that on 10.8.2006 Ex.A13 letter was sent by the appellant to the respondents 1 to 7 wherein, it is stated as follows:-
"I requested you to come and collect the Demand Draft for Rs.25,00,000/- (Rupees Twenty Five Lakhs only) from my office and also to complete the sale transaction. So far you have not collected the same, though you have been promising to collect the Demand Draft.
This final notice is given to you to receive the sale price and to execute the sale Deed. Otherwise, I have no other option than to seek remedy before the Court of Law.
With regards sd. (T.R.K.SARASWATHI) /True copy/ Encl:
Demand Draft No.240488 dated 11.2.2006 On Vijaya Bank, SSI Branch, Coimbatore drawn in my favour."
o. With Ex.A13, the demand draft No.240488, dated 11.2.2006 issued by Vijaya Bank, in favour of the appellant was also enclosed and it has been specifically mentioned as shown above. But without properly perusing Ex.A13, the Trial Court in paragraph 11 of its judgment has extracted Ex.A13 as follows:-
"I request you to come and collect the Demand Draft for Rs.25,00,000/- (Rupees Twenty Five Lakhs only) from my office and also to complete the sale transaction. So far you have not collected the same, though you have been promising to collect the Demand Draft.
This final notice is given to you to receive the sale price and to execute the sale Deed. Otherwise, I have no other option than to seek remedy before the Court of Law."
p. The trial Court has extracted the contents of Ex.A13, but while so extracting, instead of the word 'requested', it has incorrectly been typed as 'request' and because of the said typographical error, the Court below has observed that having stated in Ex.A13 that the respondents 1 to 7 can come to the appellant's office and collect the demand draft, the appellant has stated as if the demand draft is enclosed with Ex.A13.
q. According to the respondents 1 to 7 they have not received the pay order but they have received the letter alone and the respondents 1 to 7 marked the letter as Ex.B3, wherein, according to the respondents 1 to 7, the enclosure portion is not found. By not properly perusing Ex.A13, the Court below has come to the conclusion that when the appellant had requested the respondents 1 to 7 to come and collect the pay order from her office, there was no need to enclose the demand draft. When Ex.B3 does not reveal that the pay order was enclosed and in the body of Ex.A13 the appellant has not mentioned about the sending of the pay order along with the letter, it is clear that the pay order had not been returned to the respondents 1 to 7. The said finding is perverse and against the evidence on record.
r. The learned Senior Counsel submitted that the trial Court has not properly considered Exs.A15 to A35. The trial Court has observed that the perusal of the said exhibits, shows that the appellant at no point of time was having Rs.2,05,00,000/- either in cash or in her bank account. The trial Court on a consideration of P.W.2's evidence has observed that when P.W.2 says that within a short time the balance sale consideration could be easily arranged by them, why the balance sale consideration was not paid and get the sale deed executed.
s. The learned Senior Counsel submitted that a perusal of Ex.A.23, dated 21.3.2005 will show that the husband of the appellant had sold his immovable property for a consideration of Rs.1,49,77,000/- and under Ex.A24, dated 21.3.2005, the husband of the appellant had sold his another property for a sale consideration of Rs.1,75,23,000/-. Thus, as on 21.3.2005, the husband of the appellant had in his hand, a total sum of Rs.3,25,00,0000/-. Further, the learned Senior Counsel submitted that a perusal of Exs.A25 to A35 shows that between 15.3.2006 and 14.12.2006, the appellant's husband had purchased ten different immovable properties and the total sale consideration for the said properties comes to Rs.3,89,70,000/-. According to the learned Senior Counsel, Exs.A23 to A35 were marked only to prove the means of the appellant and to show that from such means, it would be very easy for the appellant to raise the balance sale consideration. But the trial Court without properly considering the purpose for which the said exhibits have been marked, has come to the conclusion that these documents did not reveal that the appellant was having money either in cash in hand or in her bank account and therefore, it has erroneously come to the conclusion that the appellant was not ready and willing to perform her part of the contract.
t. The learned Senior Counsel submitted that it is by now well settled law that it is not necessary for a vendor to keep the balance sale consideration either in cash or in bank account, but it is sufficient if it is proved that the vendor is capable of raising the balance sale consideration when the time for performance of the agreement of sale arrives. According to the learned Senior Counsel, the respondents 1 to 7 were taking prevaricating stand that they cancelled the agreement of sale by one letter and extend the time for the execution of the sale deed by another letter and they have not taken a definite stand. Further, according to the learned Senior counsel, unless the respondents 1 to 7 perform their part of the agreement of sale, the vendor cannot be expected to perform her part of the agreement of sale.
u. The learned Senior Counsel submitted that to get the fair sale deed engrossed on the stamp papers, the draft sale deed should be approved by the vendors and the purchaser should be satisfied with the vendor's title by perusing the relevant documents and getting legal opinion on the title. Since admittedly, the respondents 1 to 7 have not produced the original title deeds for the inspection of the purchaser's counsel at the office of the vendor's counsel, the legal advice of the counsel regarding the title of the vendor's could not be obtained and in such circumstances, the trial Court has erred in holding that the purchaser was not ready and willing to purchase the property.
v. The learned Senior Counsel submitted that in their communications, the respondents 1 to 7 have stated as if the appellant had requested them to furnish the original title deeds to the appellant, whereas what was requested is to produce the original title deeds only for inspection of the same. The original title deeds could be handed over to the purchaser only at the time of the execution of the sale deed and the appellant/purchaser had not demanded for handing over of the original title deeds to the appellant. Therefore, the respondents were under the misconception that they were called upon to hand over the original title deeds.
w. The learned Senior Counsel submitted that the trial Court erred in not granting the relief of specific performance and also erred in not granting the alternate relief. The learned Senior Counsel submitted that according to the appellant, the pay order for Rs.25,00,000/- was returned, whereas the respondents 1 to 7 contended that they have not received the same. In such circumstances, the burden is on the respondents to prove that the pay order was not encashed by any one of the respondents since the pay order had been obtained from their bank, namely, Vijaya Bank, and therefore, it is for the respondents to obtain a letter from the said bank as to whether the pay order was encashed or not. If the appellant had approached the Vijaya Bank for obtaining such particulars, the same would have been furnished by the said bank as the appellant is not having any account with that bank.
x. According to the learned Senior Counsel the respondents 1 to 7 have not proved that the pay order was encashed by the appellant or it was not encashed by any one of them. That being so, the trial Court is wrong in coming to the conclusion that the appellant failed to prove that as to whether the pay order had been encashed by the respondents 1 to 7 and therefore, the further finding that the pay order should be with the appellant is unsustainable.
y. The learned Senior Counsel submitted that the granting of specific performance is the rule and the denial of the same is an exception and in this case,l the appellant ought to have been granted the relief of specific performance.
12. Countering the submissions, Mr.M.S.Krishnan, the learned Senior Counsel submitted that the appellant has not come to the Court with clean hands and she was taking prevaricating stand and also she was not ready and willing to perform her part of the contract.
13. According to the learned Senior Counsel, in paragraph 4 of the plaint , the appellant had stated that the time is not the essence of the agreement of sale, whereas, in Ex.A1 agreement of sale, time is mentioned as essence of the contract. Ex.A3 letter, dated 24.2.2006 shows that the appellant was aware of the fact that the tenant had been vacated. In Ex.A6, the appellant had taken a contrary stand, namely, that it has been officially intimated to her only on 4.3.2006 by the letter of the respondents 1 to 7, dated 2.3.2006. The learned Senior Counsel submitted that as per the terms of Ex.A1 agreement of sale, the time for performance fixed was four months. But in Ex.A6, it has been stated that the time for performance of four months commenced only from 4.3.2006 and not from 20.1.2005. The learned Senior Counsel submitted that in Ex.A6, it has been stated that due to her non availability in town she could not take immediate action on receipt of the telegram, dated 11.3.2006. The learned Senior Counsel by basing reliance on Exs.B1 and B2, which are news items, which appeared in the Tamil dailies submitted that the appellant was available at Coimbatore on 15.3.2006. When P.W.1 was confronted with Exs.B1 and B2, she has stated that between 11.3.2006 and 18.3.2006 she was coming and going out of Coimbatore, whereas, the same has not been mentioned in her sworn affidavit and also in the plaint.
14. The learned Senior Counsel submitted that when she was actually available on those days, she has taken a false plea as if she was not available at Coimbatore and therefore, the same will amount to misconduct, which will disentitle her from claiming the relief of specific performance. According to the learned Senior Counsel, the eviction of the tenant was informed to the appellant and the same is evident from Ex.A3. Though under Ex.A5, dated 11.3.2006, the respondents had called upon the appellant to hand over the pay order and a weeks time was given to complete the sale, the appellant had not returned the pay order and completed the sale, which will show that the appellant was not having funds in her hands or she was not ready and willing to perform her part of the contract. By Ex.A7, though further time of one week was given, the appellant had not come forward to complete the sale. Though along with Ex.A9 draft sale deed was enclosed by the appellant, the pay order was not enclosed. Along with Ex.A10, the encumbrance certificate for the period from 1.1.2001 to 31.12.2004 was enclosed as requested by the appellant and further time of five working days was given but even then, the appellant did not get the sale deed executed by the respondents.
15. The learned Senior Counsel submitted that by Ex.A11, dated 22.4.2006 the appellant requested the respondents 1 to 7 to bring the original title deeds to their counsel's office but as it is not incumbent on the part of the respondents 1 to 7 to produce the original title deeds , the same was not brought to the office of their counsel. The learned Senior Counsel submitted that after Ex.A12, dated 26.4.2006 the notice sent by the counsel for the respondents 1 to 7, there was total silence till 10.8.2006 and there is no explanation for the inaction on the part of the appellant and without giving any further legal notice, the appellant had straight away filed the suit.
16. The learned Senior Counsel submitted that though in Ex.A13, it is mentioned as if the pay order has been enclosed, in Ex.B3 which is the original of Ex.A13, which was received by the respondents 1 to 7, there is no mention about the enclosing of the pay order. Though the respondents had sent a reply under Ex.A14, there was no reply from the appellant for Ex.A14, but on 14.9.2006, the suit has been filed. According to the learned Senior Counsel, the funds of the appellant's husband and daughter have been utilised to purchase the property in court auction and other properties at the relevant time but it was not shown whether the appellant was having funds either in cash on hand or in her bank account and she was not ready and willing to perform her part of the contract.
17. In support of his contentions, the learned Senior counsel relied on the following decisions:-
a. AIR 2008 SC 143 (Sita Ram and others v. Radhey Shyam) b. AIR 1996 SC 2814 (1) (Lourdu Mari David and others v. Louis Chinnaya Arogiaswamy and others).
c. AIR 1996 SC 2095 (His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar) d. (1993) II MLJ 560 (Viswanathan and others v. R. Lakshmi Ammal (decd.) and others).
e. (2003) 1 MLJ 369 ( Duraisamy and others v. N. Ethirajulu and others) f. 1967 SC 868 (1) (Gomathinayagam Pillai and Others v. Palaniswami Nadar) g. AIR 2006 Karnataka 273 (Manasa Housing Cooperative Society Ltd., v. Marikellaiah and Others) h. (2008) 10 SCC 497 (Jagdish Singh v. Madhuri Devi)
18. The learned Senior Counsel submitted that it is the bounden duty of the appellant to prove by acceptable evidence that she was always ready and willing to perform her part of the contract, but she has not produced any acceptable evidence to that effect and therefore, the trial Court is right in coming to the conclusion that she was not ready and willing to perform her part of the contract and the trial Court is perfectly right in dismissing the suit.
19. Mr.S.Parthasarathy, learned Senior Counsel appearing for the 8th respondent has made the following submissions:-
a. The learned Senior Counsel basing reliance on the decision of the Apex Court reported in (2000) 2 SCC 428 (Ram Awadh (Dead) by LRS. and others v. Achhaibar Dubey and another) submitted that the 8th respondent being the subsequent purchaser of the suit property from the respondents 1 to 7 is entitled to show that the appellant was not ready and willing to perform her part of the contract.
b. The learned Senior Counsel submitted that Ex.A1 agreement itself traced the title to the suit property and therefore, there is absolutely no need for the respondents 1 to 7 to produce the original title deeds to get the legal opinion. The appellant had knowledge about the vacating of the tenants from the suit property and therefore, it cannot be contended by the appellant that four months time commences only from the date of receipt of Ex.A4 letter, namely, from 4.3.2006. According to the learned Senior Counsel the draft sale deed was sent only on 29.3.2006 along with Ex.A9. But the draft sale deed ought to have been sent much earlier by the appellant. According to the learned Senior Counsel, the appellant was only biding for time and the conduct of the appellant would disentitle her from claiming the relief of specific performance. For Ex.A14 notice, there was no reply from the appellant and for a long time, there was no communication. But she had straight away filed the suit. According to the learned Senior counsel, the trial Court is right in dismissing the suit. 20. Pending the appeal, M.P.No.3 of 2011 has been filed under Order 41 Rule 22 C.P.C., by the appellant to permit her to file the following additional documents:-
a. Letter written by the appellant to the Centurian Bank, Avinashi Road, Coimbatore, dated 3.3.2008.
b. Reply received by the appellant from Centurian Bank, Avinashi Road, Coimbatore, dated 18.3.2008.
Similarly, the respondents 1 to 7 have also filed M.P.No.4 of 2011 under Order 41 Rule 22 C.P.C. to permit them to file the following additional documents:-
a. Office copy of letter by the 4th petitioner to Vijaya Bank, Avinashi Road Branch, Coimbatore, dated 28.9.2011.
b. Original communication issued by Vijaya Bank, Avinashi Road Branch, Coimbatore.
22. In M.P.No.3 of 2011, the learned counsel for the respondents 1 to 7 submitted that he has no objection for allowing the petition. Similarly, in M.P.No.4 of 2011, the learned counsel for the respondent has no objection for allowing the petition.
21. In M.P.No.3 of 2011 as well as M.P.No.4 of 2011 no counter has been filed by the respective respondents. 22. We have considered the aforesaid submissions and perused the materials available on record.
23. In M.P.No.3 of 2011, the additional documents, which are sought to be produced as additional evidence, are the communications between the appellant and the Centurian Bank, Avinashi Road, Coimbatore.
Similarly, in M.P.No.4 of 2011, the communications between the respondents and the Vijaya Bank, are sought to be produced as additional evidence. The aforesaid documents now sought to be produced as additional evidence by both the parties are necessary and are vital documents for deciding the issue as to whether the pay order for Rs.25,00,000/- obtained by the respondents 1 to 7 in favour of the appellant was encashed by either of the parties or not. Therefore, both the petitions are allowed. The letters filed in M.P.No.3 of 2001 are marked as Ex.A35 series, whereas the letters filed in M.P.No.4 of 2011 are marked as Ex.B.5 series.
24. The points that arise for determination in the above appeal are as follows:-
a. Whether time is the essence of Ex.A1 Agreement of sale, dated 20.1.2005?
b. Whether period of four months fixed in Ex.A1 sale agreement commences from 20.1.2005 or from the date the plaintiff was put on notice about the tenants vacating the suit property?
c. Whether the plaintiff was always ready and willing to perform her part of the agreement of sale?
d. Whether the plaintiff had raised any false plea and if so, whether that will amount to plaintiff approaching the Court with unclean hands and whether the plaintiff is entitled to the discretionary relief of specific performance?
25. Point (a):-
a. A perusal of Ex.A1 sale agreement, dated 20.1.2005 shows that the purchaser/plaintiff shall pay the balance sale consideration and get the sale deed executed within four months from 20.1.2005. It has also been mentioned in Ex.A1 that the time stipulated for completion of the sale is the essence of the agreement of sale. It is also mentioned in Ex.A1 that on the date of execution of Ex.A1, there were tenants in occupation of the suit property and the vendors/respondents 1 to 7 have undertaken to vacate the tenants and have agreed to hand over the vacant possession of the suit property to the purchaser at the time of execution of the sale deed. In the light of the aforesaid terms in Ex.A1 and the subsequent events that have taken place, the aforesaid point has to be determined.
b. It is seen from the evidence of P.W.1 and the endorsements made in Ex.A1 that the respondents 1 to 7 have received the following amounts from the appellant towards sale consideration, namely, on 2.2.2005 Rs.5,00,000/-, on 24.2.2005 Rs.4,00,000/-, on 5.6.2005 Rs.1,00,000/- and on 24.7.2005 Rs.5,00,000/-. The four months time stipulated in Ex.A1 for completing the sale had expired on 19.5.2005 but admittedly, after such expiry of time the respondents 1 to 7 have received the aforesaid amounts on 5.6.2005 and 24.7.2005 without any protest or objection. Thus, if time was treated as essence of the agreement of sale, the respondents 1 to 7 would not have received the aforesaid two payments after the expiry of the said period. c. Further, as per Ex.A1, the respondents 1 to 7 have undertaken to vacate the tenants from the suit property and have also undertaken to hand over the vacant possession to the appellant at the time of execution of the sale deed. Therefore, unless such condition is complied with, the sale deed could not be executed. The date of vacating of the tenants could not have been anticipated by both the parties and as such it is an uncertain event to happen in the future. Therefore, as rightly held by the trial Court, time is not the essence of the agreement of sale.
d. Mr.M.S.Krishnan, learned Senior Counsel for the respondents 1 to 7 has also not seriously contended that time was the essence of the agreement of sale, but his contention is that after the tenants were vacated, i.e. on 2.2.2006 when the last tenant, namely, Balakrishnan was vacated, the respondents 1 to 7 have fixed the time limit for completion of the sale, under Ex.A5 dated 11.3.2006 and the plaintiff was called upon to register the sale deed before 24.3.2006 and also the plaintiff was called upon to send a draft sale deed and to send back the pay order for Rs.25,00,000/-. Therefore, according to the learned Senior Counsel, even if the time specified in Ex.A1 sale agreement cannot be considered to be the essence of the agreement of sale, since subsequently the respondents 1 to 7 have fixed a particular time period for executing the sale deed, it should be construed that they have made the time as essence of the agreement of sale.
e. It is well settled that even though time is not made as essence of the agreement of sale, it can be made as essence of the agreement of sale by issuing a notice to the purchaser by the vendors. But in this case, as rightly contended by Mr.S.V.Jayaraman, learned Senior Counsel for the appellant that even before sending Ex.A5 telegram the respondents 1 to 7 by their letter, dated 11.2.2006, which was not received by the appellant, cancelled Ex.A1 agreement of sale enclosing the pay order for Rs.25,00,000/- but as the letter was returned, they have sent Ex.A2, dated 23.2.2006 reiterating that Ex.A1 sale agreement stands cancelled and along with Ex.A2, the pay order was enclosed. Only after such cancellation of Ex.A1 sale agreement, Ex.A5 telegram, dated 11.3.2006 has been sent. But even after Ex.A5 telegram, under Exs.A7, A8 and A10, the respondents 1 to 7 have extended the time for completion of the sale in a piecemeal manner.
f. Thus it is clear that the respondents 1 to 7 themselves have not treated the time as the essence of the agreement of sale. Therefore, the contention of the learned Senior Counsel Mr.M.S.Krishnan, cannot be countenanced. For the aforesaid reasons, the finding of the trial Court that time is not the essence of the agreement of sale is confirmed. Point (a) is answered accordingly.
26. Point (b) :-
a. It is the contention of the respondents 1 to 7 that the period of four months has to be reckoned from 20.1.2005 the date of Ex.A1 agreement of sale, whereas it is the contention of the appellant that the four months period commences from the date when the appellant is informed by the respondents 1 to 7 about the vacating of the tenants.
b. The learned Senior Counsel Mr.S.V.Jayaraman, has contended that even in Ex.A2, dated 23.2.2006 the respondents 1 to 7 have not mentioned about the vacating of the tenants. It has also not been mentioned in Ex.A2 that the appellant was orally informed by them about the tenants vacating the suit property. Only in Ex.A4, dated 2.3.2006, it is mentioned that the last tenant Balakrishnan was vacated on 2.2.2006 and it has further been mentioned that the said fact was informed to the appellant several times, but on which dates the appellant was informed about the tenants vacating the suit property have not been mentioned. Unless and until the appellant was informed about the vacating of the tenants and a reasonable time was given to the appellant, the appellant could not be expected to complete the sale.
c. As pointed out above, as undertaken by the vendors, they should vacate the tenants and should be in a position to hand over the vacant possession to the purchaser on the date of execution of the sale deed. The respondents 1 to 7 would have been in a position to hand over the vacant possession only on and from 2.2.2006, but the same was not informed to the appellant.
d. In Ex.A3, dated 24.2.2006 the appellant herself has stated as follows:-
"It appears that only few days ago, the tenant has vacated and the portion is kept under lock and key."
e. Therefore, it is clear that at least by 20.2.2006, the appellant was aware of the tenants vacating the suit property. Though officially the respondents 1 to 7 have informed the appellant by Ex.A4, dated 2.3.2006, which was received by the appellant on 4.3.2006, it cannot be contended by the appellant that as Ex.A4 was received only on 4.3.2006, the period of four months will commence only from 4.3.2006. But as pointed out above, since the appellant had knowledge about the tenants vacating the suit property by 20.2.2006, the period of four months stipulated in Ex.A1 for completion of the sale would only commence from 20.2.2006. This finding of ours is fortified by a decision reported in (1990) I M.L.J. 490 (Sivan Muthiah v. John Sathiavasagam) wherein a Division Bench of this Court, in paragraph 5 of the decision, has held as follows:-
"5. ... The event of evicting the tenants in occupation and keeping vacant possession for delivery was an uncertain one. It was not one, which was certain to happen. Hence in the present case, time for specific performance must be deemed to have run from the date when plaintiffs had notice that performance was refused by the defendant."
If the said decision is applied to the facts of this case, the time for performance will commence only from the date when the appellant had notice that performance was refused by the respondents 1 to 7, namely, 23.02.2006 when Ex.A-2 was sent by the respondents 1 to 7 under which they have cancelled the agreement of sale. Since, in this case, the tenants had been vacated on 02.02.2006 and we have held that atleast by 20.02.2006 the appellant was aware of the tenants vacating the suit property, we have held that four months time for completion of the sale would commence from 20.02.2006. Point (b) is answered accordingly.
27. Point (c ) :
(i) As far as the readiness and willingness on the part of the appellant to complete the sale, the trial Court has recorded a finding against the appellant.
(ii) Before considering the issue as to whether the appellant was ready and willing to perform her part of the agreement of sale, it has to be seen as to whether the respondents 1 to 7 have performed their part of the agreement of sale.
(iii) In the decision reported in 1969 (3) SCC 124 ( Management of Messrs. Pradip Lamp Works v. Pradip Lamp Workers Karamcharya Santh and another), in paragraph 12, the Apex Court has laid down as follows:-
"By virtue of Section 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act which relate to contracts are to be taken as part of the Indian Contract Act, 1872. If, therefore, under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without in the first instance performing his own part of the contract which in the sequence of obligations is performable by him earlier."
(iv) In the decision reported in (2004) 6 Supreme Court Cases 649 (P.D.SOUZA v. SHONDRILO NAIDU), in paragraphs 19 and 21, the Apex Court has laid down as follows:-
"19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf.
21. It is not the case where the plaintiff had not made the requisite averments in the plaint. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required for him to be done in terms of the agreement for sale. ..."
In that case the defendant did not produce the original documents and did not discharge the mortgage. While considering the same, it has been held as above.
(v) But in this case, it is the contention of the appellant that for verifying as to whether the vendors have a valid and perfect title to the suit property and to verify whether the suit property is free from encumbrance, at the first instance, the appellant had called upon the vendors to produce the original title deeds and encumbrance certificates for thirty years for the perusal of the purchaser. This demand was not complied with by the vendors. Thereafter, after exchange of communications, which have been referred to in the preceding paragraphs, while referring to the contentions of the learned Senior Counsel for the appellant, the encumbrance certificates alone were produced. Thereafter under Ex.A11, dated 22.4.2006, the counsel for the appellant called upon the counsel for the respondents 1 to 7 to advise the respondents 1 to 7 to bring the original title deeds for verification on 26.4.2006 at his office (at the office of the respondents counsel).
(vi) In reply Ex.A12, dated 26.4.2006, sent by the counsel for the respondents 1 to 7 it is clearly stated that the respondents 1 to 7 are not willing to sell the property since the time given has expired. Thus, it is clear that the vendors/respondents 1 to 7 have refused to produce the original title deeds pertaining to the suit property at their own counsel's office for the purpose of inspection by the counsel for the appellant.
(vii) Though there is no specific condition/term in Ex.A1 sale agreement that the vendors should produce the original title deeds for the inspection of the purchaser, unless the original title deeds are produced for the inspection of the counsel for the purchaser, the counsel for the purchaser cannot give any legal opinion that the vendors have got a valid and perfect title to the property agreed to be sold. Thus, such a term should be construed to be implied in Ex.A1 sale agreement. Every purchaser will not get the sale deed executed by the vendors unless and until the purchaser is satisfied about the title of the vendors.
(viii) The contention of Mr.M.S.Krishnan is that since xerox copies of the necessary documents had already been handed over to the appellant and only after being satisfied about the title of the vendors, the appellant had entered into Ex.A1 sale agreement and therefore, there is no necessity to inspect the original title deeds is concerned, it has to be pointed out that inspection of the xerox copies of the title deeds cannot be equated with the inspection of the original title deeds. The production of the original title deeds for the inspection of the purchaser will establish that the vendors are in possession of the original title deeds and there is no difference between the xerox copies of the documents and that of the original documents. It will also make it clear that the vendors had not created any encumbrance over the suit property by giving the original title deeds as security for obtaining any loan nor any equitable mortgage by deposit of title deeds had been created.
(ix) Therefore, in our considered view the demand of the appellant to produce the original title deeds for the inspection of her counsel cannot be considered to be unreasonable and the same will not amount to imposing of a new condition. The insistence for furnishing the encumbrance certificates upto date for a period of 30 years and the production of the original title deeds is only a legal demand and from such demand made by the appellant it cannot be said that the appellant was imposing one new condition after another as contended by the leaned Senior Counsel Mr.M.S.Krishnan and as erroneously found by the Court below.
(x) Thus, it is clear that the vendors have not complied with the necessary conditions to be complied with and only when the vendors complied with their part of the agreement of sale, they can insist for the performance of the agreement of sale by the purchaser/appellant.
(xi) It is pertinent to point out that it is not the case of the respondents 1 to 7 that the appellant is not in possession of sufficient means to raise necessary funds to complete the sale transaction, but it is the case of the respondents 1 to 7 that she was not having money either in her hands or bank account. It is not necessary that the appellant should either hold the required amount in cash in hand or in the bank account from the date of the sale agreement. It is sufficient if the appellant proves her readiness and willingness and her capacity to raise necessary funds at the time of completion of the sale transaction.
(xii) In this context, it is relevant to refer to the decision reported in AIR 1967 MADRAS 220 (V 54 C 66) (1) (S.P.Narayaaswami Pillai v. Dhanakoti Ammal) wherein, in paragraphs 5, 7, 8 and 9, it is laid down as follows:-
"5. ... Once it is held that with reference to a particular contract, time is not the essence, then the readiness and willingness which the plaintiff must establish is the readiness and willingness to perform his part of the contract at the proper time, that is, within a reasonable time. If time could be reasonably extended and if he establishes his capacity to perform the contract within the extended time, that will be sufficient. All that the Privy Council has observed in Adeshit v. Flora Samson, AIR 1928 PC 208 at pg. 216 is:
"In a suit for specific performance on the other hand, be treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit".
In my view when time is provided for performance readiness and willingness on the part of the person seeking performance can only mean that on his part he has throughout the period kept the contract as a subsisting one with a preparedness to fulfill his obligations and accept performance when the time came. This does not mean that the purchase should besides show that he had command of the necessary finance throughout the life of the contract. Such an insistence will make the fixing of a time for performance meaningless.
7. .... In the new Specific Relief Act 47 of 1963, Section 16 provides in case of contracts involving the payment of money that it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court, the plaintiff having only to aver the performance of or readiness or willingness to perform the contract according to its true construction. In Bank of India v. Chinoy, AIR 1950 Privy Council 90 at pg. 96 Lord Mac. Dermoft observes thus:
"It is true that plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction."
In Subayya v. Garikapati Veeraya AIR 195 Andhra 307, Subba Rao C J., observes at pg. 313 :
"Even otherwise, on the evidence I am satisfied that the first plaintiff was substantial enough to make ready and necessary amount if the occasion arose. I hold that the first plaintiff was ready and willing to perform his part of the contract."
8. A purchaser could be said to be ready and willing to perform his part of the contract if he could find the money when the occasion arose. He need not keep the money and establish that he had the money in advance. In the same case at page 329 (AIR 1957 Andh Pra 307 (329) Chandra Reddy J., as he then was, observes:
"These passages clearly indicate that the purchaser need not establish that he had the required money with him or arrangements have been made for financing the transaction. What is required of him is to show that he was ready and willing to fulfill his terms of the agreement."
9. Failure to find money or prove possession of money before the time or performance has arrived can never be taken as a breach entitling the vendors to resile from the contract, and when the contract is for the sale of immovable property the vendor must give reasonable notice requiring performance within a definite time."
(xiii) It is also relevant to refer to a Division Bench decision of this Court in the case of Eswari Amma v. M.K.Korab and reported in 1972 (85) Law Weekly 239 wherein it is laid down as follows:-
"The learned Advocate for the appellants relied on the decision in Veerayya v. N.S.Chosdry, 1966 (2) S.C.J. 789, in support of his contention that in a suit for specific performance, the plaintiff must show that he was ready and willing to perform his part of the contract from the time the contract was made till the date of the decree. But it is clear from that date decision that the plaintiff must aver in his plaint that he was ready and willing to perform his part of the contract and that if the averment is traversed, he must prove the said averment. The plaintiff in this case pleaded that he was ever ready to do his part of the contract. The first defendant has stated in her written statement the circumstances under which the plaintiff came and went away from her house in May, 1961 and pleaded that the plaintiff had no money with him to complete the sale and so he went away. There is no plea in the written statement of the first defendant that the plaintiff had no sufficient funds subsequent to his purchasing other properties in 1963 and prior to the suit and hence he could not have been ready and willing to perform the suit agreement during the entire period. In Nathulal v. Phoolchand, 1971 (2) S.C.J. 51 the Supreme Court has held that a vendor of immovable property under an agreement of sale to whom, the vendee has paid part of the sale price and entered into possession cannot call upon the vendee to pay the balance of price before he performs his part of the contract and that he cannot plead that the vendee is not ready and willing to pay the balance on the ground that he had not tendered the amount. It is pointed out in that decision that to prove himself ready and willing, the purchaser need not necessarily produce the money or vouch a concluded scheme for financing the transaction and that if he has an outstanding arrangement with his banker to enable him to draw the amount needed by him for payment to the vendor, that would be sufficient to prove his readiness and willingness. In Bank of India v. J.A.H.Chinoy, AIR 1950 P.C. 90 at 96, the Privy Council has pointed out that in order to prove himself ready and willing to perform his obligation under a contract to purchase shares, a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction and that the question is one of fact. The plaintiff in that case had stated that he had no sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. The Privy Council agreed with the following observation of Changla, A.C.J.:
'In my opinion, on the evidence already on record it was sufficient for the court to come to the conclusion that plaintiff 1 was ready and willing to perform his part of the contract. It was not necessary for him to work out actual figures and satisfy the court that specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury if the matter was left to the jury in England would have come to the conclusion that a man, in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from defendants 1 and 2'.
For the foregoing reasons, we are unable to uphold the plea put forward by the learned Advocate for the appellants in this court that though the plaintiff had means to purchase the properties in 1961, he was not in a position to do so after he purchased other properties in 1963, and therefore he could not have been ready and willing to perform his part of the suit agreement even prior to suit."
From the aforesaid decisions, it is clear that to prove himself ready and willing, a purchaser need not necessarily to produce the money or to vouch a concluded scheme for financing the transaction.
(xiv) In the decision reported in AIR 1967 MADRAS 220 (V 54 C 66) (1) (referred to supra), a decision of by the Privy Council reported in AIR 1950 Privy Council 90 at pg. 96 (Bank of India v. Chinoy) has been referred to and relied upon and in paragraph 6 of the latter judgment, it has been laid down as follows:-
"... to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction."
Therefore, if the plaintiff / appellant proves that she had necessary means to raise the funds to fulfill her obligations under agreement of sale and she was always ready and willing to perform her part of the agreement of sale, readiness and willingness has to be found in her favour. In this case, it is proved that the appellant is an income tax assessee from the year 1984; she is the proprietrix of M/s.Standard Power Distributors and M/s. Electromech Industries and Correspondent of M/s.Hindustan College of Arts and Science, M/s. Hindustan College of Engineering and Technology and M/s. Hindustan Matriculation and Higher Secondary School; she is also the shareholder of M/s. R.K.Revathi Industries, M/s.Standard Wire Products and M/s. Hindustan Transformer and Oil Products and she is the Director of M/s.Vivin Controls Private Limited and as such, the appellant could easily arrange the balance sale consideration of Rs.2,05,00,000/-. Further, a perusal of Ex.A.23, dated 21.03.2005 will show that the husband of the appellant had sold his immovable property for a consideration of Rs.1,49,77,000/- and under Ex.A24, dated 21.3.2005, the husband of the appellant had sold his another property for a sale consideration of Rs.1,75,23,000/-. Thus, as on 21.3.2005, the husband of the appellant had in his hand, a total sum of Rs.3,25,00,0000/-. D.W.1 himself has admitted that the appellant's bungalow is situated in an extent of 3/4th of an acre situated near the suit property. Further, a perusal of Exs.A25 to A35 shows that between 15.03.2006 and 14.12.2006, the appellant's husband had purchased ten different immovable properties and the total sale consideration for the said properties comes to Rs.3,89,70,000/-. It is clear that Exs.A23 to A35 were marked only to prove the means of the appellant and to show that from such means, it would be very easy for the appellant to raise the balance sale consideration. But the trial Court without properly considering the purpose for which the said exhibits have been marked has come to the conclusion that these documents did not reveal that the appellant was having money either in cash in hand or in her bank account and therefore it has erroneously come to the conclusion that the appellant was not ready and willing to perform her part of the contract.
(xv) It is now well settled law that it is not necessary for a vendor to keep the balance sale consideration either in cash or in bank account, but it is sufficient if it is proved that the vendor is capable of raising the balance sale consideration when the time for performance of the agreement of sale arrives. The respondents 1 to 7 were taking prevaricating stand that they cancelled the agreement of sale by one letter and extend the time for the execution of the sale deed by another letter and they have not taken a definite stand. Further, unless the respondents 1 to 7 perform their part of the agreement of sale, the vendor cannot be expected to perform her part of the agreement of sale. To get the fair sale deed engrossed on the stamp papers, the draft sale deed should be approved by the vendors and the purchaser should be satisfied with the vendor's title by perusing the relevant documents and getting legal opinion on the title. Since admittedly, the respondents 1 to 7 have not produced the original title deeds for the inspection of the purchaser's counsel at the office of the vendors' counsel, the legal advice of the counsel regarding the title of the vendors could not be obtained and in such circumstances, the trial Court has erred in holding that the purchaser was not ready and willing to purchase the property. In their communications, the respondents 1 to 7 have stated as if the appellant had requested them to furnish the original title deeds to the appellant, whereas what was requested is to produce the original title deeds only for inspection of the same. The original title deeds could be handed over to the purchaser only at the time of the execution of the sale deed and the appellant/purchaser had not demanded for handing over of the original title deeds to the appellant. Therefore, the respondents were under the misconception that they were called upon to hand over the original title deeds.
(xvi) Mr. M.S.Krishnan, learned senior counsel, relied on the decision reported in AIR 1966 SUPREME COURT 2095 (referred to supra) wherein in paragraph 2 it has been laid down as follows:-
"2. There is distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27-2-1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bite for the time which disentitles him as time is the essence of the contract."
Basing reliance on the abovesaid decision, the learned senior counsel submitted that the facts and the circumstances of this case would show that the appellant was not ready and willing to perform her part of the contract as she was not having the necessary funds either in cash or in bank to pay the balance sale consideration and therefore, the trial court is right in coming to the conclusion that the appellant was not ready and willing to perform her contract of sale.
(xvii) The said submission cannot be countenanced for the following reasons:-
In the above referred to decision, the Hon 'ble Apex Court, in paragraph 2 itself, has pointed out that by readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price; for determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized. It has also been pointed out in that decision, the necessity of the draft sale deed being approved by the vendor. In the facts of that case, the Apex Court has held that the plaintiff was not ready nor had capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bite for the time which disentitles him as time is the essence of the contract. In this case, it has already been held that time is not the essence of the contract and further, as pointed out above, the appellant and her husband are running several industries and educational institutions and further, as revealed from Exs.A-23 to A-35 the husband of the appellant had sold immovable properties and raised a sum of Rs.3,25,00,0000/- and since the time for completion of sale had not come at that time, as prudent and successful businessman they had invested their money by purchasing about ten immovable properties for a total sale consideration of Rs.3,89,70,000/-. Therefore, the said decision is not applicable to the facts of this case and in this case, it has been amply proved by documentary evidence that the appellant had more than sufficient means to raise the necessary funds to pay the balance sale consideration and complete the sale when the time for performance arrived.
(xviii) At this juncture, it has to be pointed out that though four months' time was available to the appellant to complete the sale from 20.02.2006, as pointed out above, by their letter, Ex.A-2, dated 23.02.2006, the respondents 1 to 7 have cancelled Ex.A-1 agreement of sale and they have returned the advance amount of Rs.25 lakhs by way of pay order. It is pertinent to point out that on 11.02.2006 itself, they had obtained the pay order and had actually, as seen from Ex.A-2, sent the pay order to the appellant and cancelled the agreement of sale, Ex.A-1. As already pointed out, the last of the tenants, namely, Balakrishnan, had vacated and handed over possession of the suit properties to respondents 1 to 7 only on 02.02.2006, but though the appellant had time to perform their part of the agreement, on 11.02.2006 itself, respondents 1 to 7 have cancelled the agreement of sale. A perusal of Ex.B-4, the Bank Statement of Mr.K.Kannappan, the fourth respondent herein, issued by Vijaya Bank, Coimbatore Branch, shows that as on 10.02.2006, only a sum of Rs.3,85,243.20 was available in his account; on 11.02.2006, various amounts have been deposited and on the same day, a demand draft for Rs.25,00,000/- (Rupees Twenty Five Lakhs only) has been obtained; the said demand draft has been sent to the appellant, as stated above. As pointed out earlier, it is the case of respondents 1 to 7 that the price of immovable property near the suit property had increased, therefore it could be inferred that respondents 1 to 7 wanted to take advantage of the rise in prices of the suit property and also wanted to take advantage of the fact that the tenants have vacated the suit property and therefore the respondents 1 to 7 had decided to sell the suit property for a higher price to some other third party and only with that intention, they had not even informed the appellant about the tenants vacating the suit property, but had taken a decision to return the advance amount of Rs.25 lakhs by way of demand draft obtained on 11.02.2006 that too even before the time for completion of the sale had not expired. Thus, the conduct of the respondents 1 to 7 is not blemishless. It is the respondents 1 to 7 who had committed breach of the agreement of sale. Having committed breach of agreement of sale, thereafter the respondents 1 to 7 have sought to extend the time for performance in a piecemeal manner, as pointed out above.
(xix) Further, the draft sale deed sent by the appellant for approval of the respondents 1 to 7 had not been returned till the last. As pointed out above, they have also not furnished the original title deeds for inspection of the appellant's counsel to prepare the fair sale deed and get it engrossed on the stamp papers. Thus it was the respondents 1 to 7 who were not ready to perform their part of the agreement of sale but not the appellant. The aforesaid vital aspects which are revealed from the evidence on record have not at all been taken into consideration by the trial court and therefore, the finding of the trial court that the appellant was not ready and willing to perform her part of the contract cannot be sustained and accordingly, the same is set-aside. For the aforesaid reasons, point (c) is answered in favour of the appellant.
28. Point (d):-
(i) It is the contention of Mr.M.S.Krishnan, learned senior counsel, that in Ex.A6, it has been stated that due to her non availability in town she could not take immediate action on receipt of the telegram, dated 11.3.2006. The learned Senior Counsel by basing reliance on Exs.B1 and B2, which are news items, which appeared in the Tamil dailies submitted that the appellant was available at Coimbatore on 15.3.2006. When P.W.1 was confronted with Exs.B1 and B2, she has stated that between 11.3.2006 and 18.3.2006 she was coming and going out of Coimbatore, whereas, the same has not been mentioned in her sworn affidavit and also in the plaint. The learned Senior Counsel submitted that when she was actually available on those days, she has taken a false plea as if she was not available at Coimbatore and therefore, the same will amount to misconduct, which will disentitle her from claiming the relief of specific performance. By basing reliance on the decision of the Apex Court reported in AIR 2008 SUPREME COURT 143 (referred to supra) wherein it has been held that the plaintiff has to show that his conduct has been blemishless throughout, the learned senior counsel submitted that as the plaintiff has made the aforesaid false plea she is not entitled to claim the equitable and discretionary relief of specific performance. He also based reliance on a decision of a Division Bench of this Court reported in (1993) II M.L.J. 560 (referred to supra). In the said decision, in paragraph 25, the Division Bench has held as follows:-
"25. There is also another reason as to why we should not exercise our discretion and grant the equitable relief of specific performance in favour of the plaintiffs. They have come forward with a false case not only in the pleadings but also in the evidence. We have referred to the plea in paragraph 8 of the plaint that the lease in favour of the fifth plaintiff had come to an end on the execution of the agreements and no rent was payable after the date of agreement which clearly is a false plea. We have already rejected the contention of the fifth plaintiff that he is not liable to pay the rent. Another false plea is found in paragraph 10 which purports to set the various payments made by the plaintiffs. According to them, the amount remaining to be paid to the defendants is only a small amount. The plea with regard to the documents which came into existence on 1.3.1979 is already found to be false by us. The plea of the plaintiffs that the documents were brought into existence with ulterior motive or fraudulently is false. A perusal of the evidence of P.W.1 also show that he is not speaking the truth and in act his admissions would go to show that the pleading of the plaintiffs is falls. Hence, we hold that the plaintiffs are not entitled to the relief of specific performance."
(ii) He also relied upon the decision reported in AIR 1996 SUPREME COURT 2814 (referred to supra) wherein in paragraph 2 it has been laid down as follows:-
"2. It is settled law that the party who seeks to avail of the equitable jurisdiction of a Court and specific performance being equitable relief, must come to the Court with clean hands. In other words the party who makes false allegations does not came with clean hands and is not entitled to the equitable relief."
(iii) In the decision reported in (2003) 1 M.L.J. 369 (referred to supra) it has been laid down that the specific performance is an equitable relief. Merely because the relief is available in law, it need not be granted. Before exercising discretion, the Court must take into account all the circumstances attendant on the instrument to find out the truth or otherwise. The said exercise has to be exercised on a sound and reasonable principle. While doing so, the Court should look into the conduct of the parties. But it has to be pointed out that the false pleas, which have been referred to and which have been found to be proved in the decisions reported in (1993) II M.L.J. 560 (referred to supra) and AIR 1996 SUPREME COURT 2814 (referred to supra) are serious in nature and which affected the main case and therefore the relief of specific performance was not granted in those cases. But in this case the false pleas said to have been made by the appellant is that while she had claimed that she was not available on some particular dates at Coimbatore, it has been proved that she was actually available on those dates at Coimbatore. Whether this false plea will disentitle her to the relief of specific performance has to be considered.
(iv) The decision reported in 1993 (II) M.L.J. 560 (referred to supra) was rendered by a Division Bench of this Court which consisted of His Lordship Mr. Justice M.Srinivasan and Mr. Justice Thangamani and in the decision reported in 1996-2-Law Weekly 1 (Pachiappan and Others v. S.P.Koon Mari), a Division Bench of this Court of which His Lordship Mr. Justice M.Srinivasan (as his Lordship then was) was a party, it has been laid down as follows:-
"17. The principle that the equitable relief of specific performance cannot be granted to a person who has put forward a false case is based on the doctrine that one who seeks equity must do equity. But the question whether the plaintiff is disentitled to claim the relief, will depend on the facts of each case. If in a particular case the false claim set up by the plaintiff is immaterial and does not affect the main case in any manner, the Court shall not refuse the relief. ..."
If in the light of the aforesaid decision, the facts of this case and the contentions of Mr. M.S.Krishnan, learned senior counsel, are considered, the aforesaid false plea made by the appellant is immaterial and does not affect the main case in any manner and therefore, as held in that decision, this Court shall not refuse the relief on that ground.
(v) It was further contended by Mr.M.S.Krishnan, learned senior counsel, that though in Ex.A-5, dated 11.03.2006, the respondents had called upon the appellant to hand over the pay order and a week's time was given to complete the sale, the appellant had not returned the pay order; though along with Ex.A-9, draft sale deed was enclosed by the appellant, the pay order was not enclosed; in Ex.B-3, which is the original of Ex.A-13, which was received by the respondents 1 to 7 there is no mention about the enclosing of the pay order, though the respondents had sent a reply under Ex.A-14, there was no reply from the appellant for Ex.A-14, but on 14.09.2006 the suit has been filed. It is further contended that the appellant had not returned the pay order till date and the trial court has also come to the conclusion that the appellant has not proved that the pay order was encashed by the respondents 1 to 7 and therefore the trial court has held that the pay order was only with the appellant and only on such finding the alternative relief was rejected. Since there is no concrete evidence adduced by either party as to what happened to the pay order, to find out what exactly happened to the pay order, namely, whether it was encashed by either of the parties or it was not at all encashed by anyone of them, we directed the learned counsel for respondents 1 to 7 to file a petition to send for the relevant records from M/s.Vijaya Bank, Peelamedu Branch, Coimbatore. Accordingly, the respondents 1 to 7 filed M.P.No.4 of 2011 and also filed M.P.No.5 of 2011 to receive the additional documents, namely, Office copy of letter, dated 28.09.2011, by the fourth respondent to Vijaya Bank, Avinashi Road Branch, Coimbatore and the original communication issued by Vijaya Bank, Avinashi Road Branch, Coimbatore and to direct M/s. Vijaya Bank, Peelamedu Branch, Coimbatore, to furnish the records, namely, (i) whether the pay order, dated 11.02.2006 bearing No.240488 for Rs.25,00,000/- issued in favour of T.R.K.Saraswathi was encashed or not and (ii) if the pay order was encashed, the details of who encashed the pay order, their name and address, to this Court pertaining to the pay order No.240488, dated 11.02.2006. The appellant also has filed M.P.No.3 of 2011 to receive the letter, dated 03.03.2008 sent by the appellant to the Manger, Centurion Bank, Avinashi Road, Coimbatore and the letter, dated 18.03.2008 issued by Centurion Bank, as additional evidence. Since Vijaya Bank has issued the letter, dated 28.09.2011, to the fourth respondent herein, certifying that they have issued a demand draft No.3010106, Printed No.240488, dated 11.02.2006, for Rs.25.00 lakhs favouring Smt.T.R.K.Saraswathi, and the above demand draft was issued by debiting S.B.Account No.304101010000014 of Mr.K.Kannappan. It is further stated therein that the above demand draft is outstanding in lapsed demand draft at their head office for pending payment since the payee of the draft has not presented for payment. M.P.No.5 of 2011 was not pressed by respondents 1 to 7 and wanted to withdraw the same and accordingly, the same was dismissed as not pressed. As pointed out above, M.P.No.3 of 2011 and M.P.No.4 of 2011 have been allowed and the documents have been marked as Exs.A-15 series and B-5 series respectively.
(vi) A perusal of the letter, dated 28.09.2011, of M/s. Vijaya Bank, shows that even as on today, the demand draft for Rs.25 lakhs sent by the respondents 1 to 7 in favour of the appellant has not been encashed by either the appellant or by the respondents 1 to 7 and as such the amount is still available with M/s. Vijaya Bank.
(vii) While it is the contention of the appellant that the demand draft was enclosed along with Ex.A-13, it is the contention of the respondents 1 to 7 that demand draft was not enclosed with Ex.B-3, which according to them is the original of Ex.A-13. It is the contention of Mr.M.S.Krishnan, learned senior counsel, that there is no mention about the enclosing of the pay order in Ex.A-13. We perused the originals of Exs.A-13 and B-3. While Ex.A-13 has been prepared on a A-4 size paper, Ex.B-3 is not prepared on A-4 size paper, the portion below the signature of the appellant is not found in Ex.B-3. In Ex.A-13 below the signature of the appellant, it is mentioned as follows:-
"Encl :
Demand Draft No.240488 dated 11.02.2006 On Vijaya Bank, SSI Branch, Coimbatore drawn in my favour."
But in Ex.B-3, the aforesaid portion is not found. When Ex.B-3 was shown to P.W.1 in her cross-examination, she has specifically stated that alongwith Ex.B-3 the demand draft was sent. She has also specifically denied the suggestion that along with Ex.B-3 the demand draft was not enclosed. During the course of cross-examination of D.W.1, he has admitted that in the letter, dated 18.03.2006, the appellant had requested the respondents to come to their office at any time and collect the pay order, but he has stated that he had not got back the Demand Draft. It has been further suggested to D.W.1 that Ex.B-3 has been corrected, but the said suggestion has been denied. A perusal of Exs.A-13 and B-3 raises a doubt that in Ex.B-3 the portion below the signature of the appellant has been torn off, but in the absence of any clear evidence a definite conclusion cannot be reached as to who was responsible for that, but the fact remains, as stated above, that the demand draft of Rs.25 lakhs had not been encashed either by the appellant or by the respondents 1 to 7 and the amount is still available with M/s.Vijaya Bank.
(viii) It has to be pointed out that it has not been explained by the respondents as to why the appellant should retain the demand draft without encashing it, when the validity of the demand draft has also expired and what advantage the appellant will drive by retaining the same. Therefore, when the retention of the demand draft will not confer any advantage on the appellant, the case of the appellant that along with Ex.A-13, the demand draft was returned to the respondents 1 to 7 can be accepted. Therefore, in this aspect, it cannot be said that the appellant has made any false plea.
(ix) As pointed out above, by her letter, Ex.A-6, dated 18.03.2006 itself, the appellant had informed the respondents 1 to 7 that they can, at any time, come and collect the pay order No.240488, dated 11.02.2006 for Rs.25 lakhs from her office. Admittedly, the respondents 1 to 7 are residents of Coimbatore and it has not been explained by them in the pleadings or in the evidence of D.W.1 as to why they had not gone to the Office of the appellant and collected the pay order. In Ex.A-13 also the appellant has stated that she requested the respondents 1 to 7 to come and collect the demand draft but they had not collected the same, though they have been promising to collect the demand draft and that was the reason why, the demand draft was enclosed with Ex.A-13 that is the reason stated for enclosing the demand draft.
(x) It has to be pointed out that regarding the status of the pay order, namely, as to whether the same was encashed or not, no evidence was let in by summoning the Bank Officials or by producing the letter from M/s. Vijaya Bank, as has now been done by the respondents 1 to 7. In our considered view, the trial court has wrongly thrown the burden on the appellant to prove that the demand draft was not encashed by the respondents 1 to 7. It has to be pointed out that the demand draft was obtained by the fourth respondent from K.Kannappan from M/s. Vijaya Bank by paying the amount from his account held with M/s. Vijaya Bank. There is no evidence to show that the appellant is having any account with M/s.Vijaya Bank and therefore even if the appellant had approached M/s. Vijaya Bank, it would not have given a letter regarding the status of the Demand Draft. Whereas had the fourth respondent, who is the account holder of M/s. Vijaya Bank approached the bank, he could have easily obtained the letter, as he had obtained now in a day's time, but the fourth respondent had failed to obtain such a letter to prove the status of the Demand Draft. In our considered view, on a consideration of the circumstances of this case, the failure to produce the letter from M/s. Vijaya Bank, though it could have been produced by the fourth respondent, seems to be deliberate and just to mislead the Court, so that the Court can come to conclusion that either the appellant had encashed it or had not returned the demand draft to the respondents 1 to 7. The failure of the respondents 1 to 7 to produce such a letter from M/s.Vijaya Bank before the trial court shows that their conduct is not blemishless, but the trial court, in its judgment, without properly considering the aforesaid circumstances and vital aspects and the contents of Ex.A-13 and by incorrectly extracting the contents of Ex.A-13 i.e., instead of the word "requested", the trial court has extracted it as "request", has observed that as if in Ex.A-13 the appellant had requested the respondents 1 to 7 to come to her office and collect the Demand Draft and thereafter, has mentioned as if the Demand Draft has been enclosed with the letter. Because of the said mistake, the trial court has recorded a finding that the demand draft was still with the appellant. The said finding of the trial court is perverse and against Ex.A-13 and therefore, the said finding is set-aside. For the aforesaid reasons, Point (d) is answered in favour of the appellant.
29. As pointed out by us in the preceding paragraphs, the respondents 1 to 7 have not performed their part of the agreement of sale and has actually committed breach of the agreement of sale, but started blaming the appellant as if she had not been ready and willing to perform her part of the agreement of sale. It has already been held by us that the time for performance of Ex.A-1-agreement of sale would commence only from 20.02.2006 and from that date four months' time was available to the appellant to complete the sale and hence the last date expired on 20.06.2006. As the defendants by their legal notice Ex.A-12 dated 26.04.2006 cancelled the agreement of sale on the ground that the time has lapsed and have categorically stated that they are not willing to sell the property, the appellant sent a reply, Ex.A-13 dated 10.08.2006 enclosing demand draft for Rs.25 lakhs and putting on notice the respondents 1 to 7 to receive the sale price and to execute the sale deed as otherwise, she have no other option than to seek remedy before the Court of law. Thereafter, as the respondents 1 to 7 under Ex.A-14 refused to execute the sale deed by receiving the balance sale price, the appellant has filed the suit on 14.09.2006. Thus, there is no undue delay on the part of the appellant in seeking the relief of specific performance. As pointed out above, while exercising discretion under Section 20 (2) of the Specific Relief Act as to whether the relief should be granted or not, it is incumbent upon this Court to consider the conduct of both the parties to the agreement of sale. We have in the preceding paragraphs considered the conduct of both the parties and we have come to the conclusion that the conduct of the respondents 1 to 7 is not blemishless. Whereas the appellant had got necessary means to raise the necessary funds to complete the sale transaction when the time for performance of the agreement of sale arrives. The evidence on record does not show anything which disentitles the appellant to claim the relief of specific performance. In our considered view, equity lies in favour of the appellant and not in favour of the respondents 1 to 8. Therefore, in our considered view, the trial court has not exercised its discretion judiciously, but has exercised it without keeping in mind the well settled principles of law and therefore, the judgment and decree of the Court below is hereby set-aside and the suit is decreed.
30. As far as the eighth respondent / subsequent purchaser of the suit property is concerned, it has to be pointed out that only pending the appeal, the eighth respondent had purchased the suit property and thus, the eighth respondent had full knowledge about the pendency of the appeal and consequence of purchasing the suit property, pending the Court proceedings and the eighth respondent is not a bonafide purchaser without notice of the court proceedings and hence the sale by the respondents 1 to 7 in favour of the eighth respondent is not binding on the appellant and the same is not valid as it is hit by lis pendens.
31. As far as the amount lying with M/s. Vijaya Bank is concerned, the respondents 1 to 7 are entitled for the amount, as it is a part of sale consideration. Since the instrument viz., the pay order No.240488, dated 11.02.2006 is not available, the respondents 1 to 7 are directed to approach their bankers viz., Vijaya Bank, SSI Branch, Coimbatore to transfer the same to their account. In that event, Vijaya Bank, SSI Branch, Coimbatore and their Head Office at Bangalore, being the Garnishee, are directed to transfer the amount with accrued interest, if any, to the account of the fourth respondent K.Kannappan.
32. For the foregoing reasons, the appeal is allowed with costs throughout. The appellant shall deposit the balance sale consideration of Rs.2,05,00,000/- (Rupees two crores and five lakhs only) to the credit of O.S.No.420 of 2006 on the file of the Additional District Judge/Fast Track Court No.I, Coimbatore, within four (4) weeks from the date of receipt of a copy of this judgment. On such deposit being made, the respondents 1 to 8 shall join together and execute the sale deed in favour of the appellant, failing which the Additional District Judge/Fast Track Court No.I, Coimbatore, shall execute the sale deed in favour of the appellant.
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