Madras High Court
R.Subramani vs Ramasamy Naicker on 11 July, 2018
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.07.2018
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
S.A(MD).No. 409 of 2013
and
M.P(MD).No.1 of 2013
R.Subramani ... Appellant
Vs.
Ramasamy Naicker ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, to
set aside judgment and decree dated 12.03.2013 made in A.S.No.41 of 2012 on
the file of the Principal Subordinate Court, Dindigul confirming the judgment
and decree dated 21.03.2012 made in O.S.No.216 of 2008 on the file of the
Principal District Munsif Court, Dindigul.
!For Petitioner : Mr.T.Antony Arulraj
^For Respondent : Mr.G.Gomathi Sankar
:ORDER
The defendant in the suit for specific performance in O.S.No.216 of 2008 on the file of the Principal District Court, Dindigul is the appellant in this second appeal.
2.The brief facts, that are necessary to dispose of this Second Appeal, are as follows:-
(i) The plaintiff is the father-in-law of the defendant. The suit property was originally owned by the plaintiff. However, he executed a sale deed in favour of the defendant and the defendant became the absolute owner of the property. Thereafter, it is admitted that a sale agreement was entered into between the plaintiff and the defendant on 20.03.2002. The sale agreement is registered and the terms of the agreement is not in dispute. As per the sale agreement, the total sale consideration for the suit property is fixed at Rs.90,000/-. The plaintiff paid a sum of Rs.3,000/- as advance to the defendant and the time for performance was stated as three years i.e., from 20.03.2002 to 19.03.2005. There is also a default clause and it was agreed between the parties that the plaintiff would loose the amount as advance, in case he fails to pay the balance of sale consideration and get the sale deed within the time stipualted in the agreement and in case, the defendant refuse to execute the sale deed upon receipt of the balance of sale consideration, it was stated in the agreement that the plaintiff can approach the Court and get the sale deed through Court.
(ii) It is seen that the plaintiff filed the suit on 17.03.2008. The plaintiff issued a notice to the defendant on 11.03.2008 calling upon the defendant to execute the sale deed upon receiving the balance amount. The said notice was received by the defendant on 15.03.2008. Though the notice was served on the defendant calling upon him to execute the sale deed within three days, it is stated that even before the expiry of the period, the suit was filed on 17.03.2008. It is also admitted that the plaintiff deposited the balance of the sale consideration on 27.07.2011.
(iii) The suit was resisted by the defendant mainly on the ground that the plaintiff had no wherewithal to mobilise the balance amount. It is the specific case of defendant that time is the essence of agreement and that the plaintiff was not ready and willing to perform his part of the contract by offering the money within the time prescribed in the terms of the agreement, which is not disputed by the defendant. The contention that the plaintiff that he was always ready and willing to perform his part of the contract, was specifically denied and it was the main issue that was raised before the Court below. Unfortunately, the trial Court, without even framing the issue as to the readiness and willingness of the plaintiff, decreed the suit as prayed for. It is to be seen that the trial Court held that the defendant was not willing to execute the sale deed, as he has taken the defence that the suit is barred by limitation. The trial Court has observed as follows:-
?jhth fpiua xg;ge;jkhdJ fhyhtjpahy; ghjpf;fg;gl;L tpl;lJ vd;gjhy; mij epiwNtw;w KbahJ vd;W gpujpthjp jug;gpy; kWf;fg;gLtjpypUe;Nj gpujpthjp th.rh.M.1 fpiua xg;ge;jj;jpd; mbg;gilapy; fpiua Mtzk; vOjpf; nfhLf;f Kd;tuhky; kWj;JtUfpwhh; vd;W njspthfpwJ. fpiua ghf;fpj;njhif &.87000/-I 27.08.2011 y; ,e;j tof;fpy; ePjpkd;wj;jpy; thjp itg;gPL nra;Js;shh;.
fpiuaMtzk; thjpaplk; ,Ue;J gpujpthjp fpiuak; ngw;Ws;s epiyapy; me;jnrhj;ijAk; Nrh;j;J mth;fs; FLgj;jpw;Fs; ghftof;F Vw;gLj;jp me;jnrhj;ij gpujpthjpapd; khkdhUk; mtUila kfDk; Nrh;e;J fpuak; nfhLj;jjhf Fwpg;gpl;L gp.th.rh.M.8 Mtzk; jhf;fy; nra;ag;gl;Ls;sJ. ,e;j Mtzk; 05.01.2010y; tof;Fg;gpd; Vw;gLj;jg;gl;Ls;sJ. mJ thjpf;Fs;s chpikia kWf;Fk; tpjj;jpy; nray;gl;Ls;sjhfNt jPh;khdpf;fKbfpwJ. vdNt jhthr; nrhj;ij gpujpthjp thjpf;F fpiuaxg;ge;jg;gb fpiuaMtzk; vOjpf;nfhLg;gjw;F rl;lg;gbflikg;gl;lth; vd;gjhy; thjpNfhhpa Vw;wij Mw;Wjy; ghpfhuk; fpilf;ff;$bajhf jPh;khdpj;J ,e;j vOtpdhtpw;F tpilfhzg;gLfpwJ.?
(iv) Despite the fact that no material was produced to show readiness and willingness and without any discussion about the readiness and willingness of the plaintiff, the trial Court decreed the suit. Aggrieved by the judgment and decree of the trial Court, the defendant preferred an appeal in A.S.No.41 of 2012 on the file of the Principal Sub-Court, Dindigul. The Appellate Court of-course framed an issue as to the readiness and willingness of the plaintiff. Even though this issue was framed, the Lower Appellate Court decided the issue by referring to the fact that the balance of sale consideration was deposited by the plaintiff after filing the suit. However, the jurisdiction and the power of Court to grant the equitable relief of specific performance having regard to the peculiar circumstances of the case was not dealt with in terms of Section 20 of the Specific Relief Act.
(v) The trial Court, after taking into consideration the relationship between the parties and the fact that the suit property was originally owned by the plaintiff, appears to have shown some lenience in favour of the plaintiff, while appreciating the facts of the case.
3.Based on the evidence of P.W.1 and P.W.2, the trial Court came to the conclusion that the plaintiff was ready and willing to perform his part of the contract. From the conduct of defendant that the defendant even after receiving the notice issued by the plaintiff for executing the sale deed, did not come forward to execute the sale deed but sent a reply refuting the contract, the lower Appellate Court held that the defendant was not ready and willing to perform his part of the contract. Since the suit was filed within the period of limitation, it was found that the plaintiff is entitled to the relief of specific performance. Even though the counsel appearing for the defendant relied upon the judgment of this Court in the case of K.Majeed vs. Pappa @ Maduramba and another reported in 2004-2-LW-691, referring to the total inaction on the part of the plaintiff in approaching the Court, the appellate Court found that the said judgment is not applicable to the facts of the case and that the plaintiff is entitled to the relief of specific performance.
4.In the memorandum of the grounds, the following substantial questions of law have been raised:-
A. Whether the Courts below applied the correct principles of law governing the exercise of discretion in the matter of garnt of specific performance since the present suit was laid on 17.03.2008 whereas Ex.A1 agreement is dated 20.03.2002?
B.Whether the Courts below ought to have held that the suit was barred by limitation since as per the terms of Ex.A.1, it stood cancelled in the event of failure of the plaintiff to pay Rs.87,000/- within three years from the date of execution ofEx.A1?
C.Whether the plaintiff proved his readiness and willingness to perform his part of the contract more so when he did not deposit the sale consideration till his examination during the trial?
D.Whether the Courts below ought to have held tha thte plaintiff was not entitled to the equitable relief of specific performance whent eh suit notice was issued almost 6 years after the execution of the sale agreement?
E.Whether the Courts below ought to have properly construed Ex.A1 as an agreement for resale and hence inferred that the time is the essence of contract?
5.The learned counsel appearing for the appellant submitted that though the agreement is not in dispute, the conduct of the plaintiff in the suit has some relevance so as to decide whether the plaintiff is entitled to the equitable relief of specific performance in this case. It is pointed out by the learned counsel for the appellant that as per the suit agreement, dated 20.03.2002, the parties have specifically agreed that the plaintiff should perform his part of the contract by paying the sale consideration on or before 19.03.2005. Even after the long period of three years, the plaintiff has not come forward to execute the sale deed after paying the balance sale consideration. Only a sum of Rs.3,000/- was paid as advance and the remaining balance was not paid by the plaintiff till the suit was filed. Though the period specified in the agreement for performance expired on 19.03.2005, the plaintiff chose to send a suit notice only on 11.03.2008 just six days prior to the filing of the suit and just 9 days before the period of limitation. It is admitted by P.W.1 and P.W.2 that the defendant refused to perform his part of contract, when the plaintiff offered the balance of sale consideration before the expiry of the period specified for performance. The learned counsel relied upon the evidence of P.W.1, which reads as follows:-
?me;jf;fpiuag;gb gpujpthjp nrhj;Jfis mDgtk; nra;J tUfpwhh; vd;why; rhpjhd;. me;j %d;W tUl fhyf;nfLtpw;Fs; gzj;ij nrYj;j vdf;F trjpapy;iy vd;why; rhpay;y. Fwpg;gpl;l fhyf;nfLtpw;Fs; njhifia gpujpthjpaplk; ehd; nfhLf;fr;nrd;Nwd; mij gpujpthjp thq;f kWj;Jtpl;lhh;. fhynfL Kbtjw;F %d;W khj;jjpw;F Kd;Ng &.87>000 vd;trk; ,Ue;jJ. mg;NghNj ehd; gpujpthjpaplk; nfhLj;Njd;. &.87>000/-I ehd; gQ;rhaj;jhh;fis itj;J Neubahfg;Ngha; nfhLj;Njd;. gQ;rhaj;jhh;fs; Mirj;jk;gp> ehuhazrhkp MfpNahUf;F tptuk; njhpAk;. ehd; gQ;rhaj;jhh;fs; Kd;dpiyapy; gzk;nfhLj;j tptuj;ij vd;Dila gpuhjpy; nrhy;ytpy;iy vd;why; rhpjhd;. gzj;ij thq;f kWj;jjhy; 2005k; Mz;Ltiu Nehl;B]; vJTk; ehd; gpujpthjpf;F mDg;gtpy;iy vd;why; rhpay;;y.? and the evidence of P.W.2, which reads as follows:-
?%d;W tUlk; Kbtjw;F> 4 ehl;fSf;F Kd;dh; gzj;ij nfhLf;fr;nrd;whh;. thjpAk;> Chpy; Rkhh; 10 NgUk; Nrh;e;J gzk; nfhLf;fr; nrd;whh;fs;. mth;fs; ahh; vd;W vd;dhy; nrhy;y KbahJ. Chpy; tpehafh; Nfhtpypy; itj;J Ngrg;gl;lJ. thjp md;W gzk; itj;jpUe;jhh;. $Ljy; gzk; gpujpthjp Nfl;L thq;f kWj;Jtpl;lhh;. nkhj;jk; 1>20>000 Nfl;lhh;. me;j tptuj;ij thjp gpuhjpy; nrhy;ytpy;iy vd;why; njhpahJ. thjpia tprhhpf;Fk;NghJ ehd; ,y;iy. thjp tof;fwpQh; mwptpg;G vJTk; nfhLj;jhuh ,y;iyah vd;W njhpahJ.?
6.Though P.W.1 denied the suggestion that he did not issue any notice in 2005, the fact remains that no notice was issued immediately after the expiry of the period specified for performance. When there is no material produced before this Court to show that the plaintiff was ready and willing to perform his part of the contract before the period specified in the agreement, the evidence of P.W.1 and P.W.2 that the plaintiff was willing to pay and that the defendant did not accept the money and demanded more money, cannot be believed, as the version of P.W.1 and P.W.2 are not corroborative.
The statement of P.W.1 and P.W.2 are contradictory. P.W.1 in his evidence stated that the panchayat was organized three months before the date specified in the agreement. PW2 says that plaintiff approached the defendant just four days prior to the date specified in the agreement. The fact that the plaintiff approached the defendant along with panchayatdars before the time specified in the agreement, is not pleaded in the plaint. Assuming for the sake of arguments that the evidence of P.W.1 and P.W.2 regarding the offer that was made by the plaintiff before the period specified in the agreement is true, both witnesses admitted that the defendant refused to accept money, when it was offered by the plaintiff. When that being so, there is no explanation as to why the plaintiff should wait for three years till the suit is filed on 17.03.2008. This three year period, i.e., after the defendant refused to perform his part of the contract in 2005, has not been explained. It has been repeatedly held that in a suit for specific performance, the plaintiff has to approach the Court within a reasonable time. In this case, the suit agreement dated 20.03.2002 and three years time was given for performance. Only a partly sum of Rs.3,000/- was paid as advance and the huge balance was agreed to be paid within three years. Though the plaintiff was given time till 19.03.2005 to pay the balance and to get the sale deed in his favour, it is admitted that no notice was issued immediately after 2005 to call upon the defendant to execute the sale deed. However, the suit notice was issued on 11.03.2008, nearly after three years from the date agreed for performance. Without even expecting a reply or giving time to the defendant, the suit was filed on 17.03.2008. The plaintiff has miserably failed to explain the delay in approaching the Court to file the suit for specific performance, even though it is admitted that the defendant refused to execute the sale deed. When the plaintiff is guilty of latches, the Court is unjustified in granting relief of specific performance. The Hon'ble Supreme Court, in Sarathamani's case categorically held that in a case where the plaintiff approach the Court with unexplained delay, the suit is liable to be dismissed on the ground of laches.
7.It is also to be noted in this case that the plaintiff has failed to prove his readiness and willingness to perform his part of the contract. The conduct of the plaintiff clearly shows that on 19.03.2005, the plaintiff was not ready and willing to perform his part of the contract. Though the evidence of P.W.1 and P.W.2 is to the effect that the plaintiff approached the defendant and the defendant refused to accept the money and execute the sale deed, there was no plea and evidence of P.W.1 and P.W.2 are looking to prove readiness and willingness. The trial Court and the lower appellate Court have not considered the relevant issue as to the readiness and willingness of the plaintiff with reference to the admitted facts and the evidence of all the witnesses examined on both sides. The trial Court has not framed the issue regarding the readiness and willingness of the plaintiff. The lower appellate Court, though framed issue but did not consider the issue with reference to the admitted facts and the evidence of witnesses. In such circumstances, this Court is unable to accept the findings of the lower appellate Court on the question of readiness and willingness of the plaintiff to perform his part of the contract in terms of the agreement under Ex.A1, dated 20.03.2002. Since there is no explanation for the delay in approaching the Court, this Court is of the view that serious prejudice will be caused to the defendant, in case the suit for specific performance is decreed in favour of the plaintiff, who has not proved his readiness and willingness and filed the suit with an inordinate delay of three years, after the expiry of time specified for performance.
8.It is seen that the plaintiff has deposited the balance of sale consideration on 27.07.2011 merely 3+ years, after filing of the suit. The learned Counsel for the appellant pointed out that this was after the examination of PW.1. It is also submitted that the plaintiff has shown his readiness and willingness by depositing the balance. The Court deposit is nearly 3+ years after the suit for specific performance was filed. Though it is not necessary that the plaintiff should deposit the money immediately into Court to show his bona fide and readiness and willingness in this case, absolutely, there is no evidence let in to show that the plaintiff has wherewithal to perform his part of the contract in terms of the agreement of sale. The fact that the plaintiff had sold the property to the defendant earlier due to financial constraints, is not in dispute. In such circumstances, when the defendant has raised the issue about the financial incapacity of the plaintiff, the plaintiff is expected to prove his readiness and willingness or source for mobilizing funds for purchasing property till the suit is filed. There is no evidence let in to prove that the plaintiff had money with him to perform his part of the contract in terms of agreement. Hence, readiness and willingness of the plaintiff is not proved. Assuming for argument sake that the plaintiff had some money, the conduct of the plaintiff still shows that he was not willing to perform his part of the contract. The substantial question of law A, C and D answered in favour of appellant.
9.For the above reason, this Court is of the view that the plaintiff is not entitled to the relief of specific performance and the judgment and decree of the Principal Sub-Court in A.S.No.41 of 2012 confirming the judgment and decree of the Principal District Munsif Court, Dindigul in O.S.No.216 of 2008, are liable to be set aside and the same is set aside. The Second Appeal is allowed. The suit in O.S.No. 216 of 2018 stands dismissed. However, there is no order as to costs. Consequently, connected Miscellaneous Petition is closed.
To
1.The Principal Subordinate Court, Dindigul.
2.The Principal District Munsif Court, Dindigul.
.