Madras High Court
S.S. Chokkalingam vs R.B.S. Mani And Ors. on 23 September, 1993
Equivalent citations: (1994)2MLJ78
JUDGMENT Srinivasan, J.
1. These four appeals arise out of a common judgment rendered in four suits tried together in which evidence is recorded in common. The earliest suit is at present bearing the number O.S. No. 3 of 1987 on the file of District Munsif, Poonamallee. That was filed on 11.11.1981. That is a suit for recovery of possession and arrears of rent in a sum of Rs. 2,975 upto October, 1981. That suit has been tiled by T.G. Sairam and G. Rama. They have claimed title to the properly under a purchase dated 16.2.1981. The only defendant in the suit is the appellant before us.
2. The next suit in chronology is O.S. No. 52ofI984 filed by the appellant herein in the Court of Subordinate Judge, Poonamallee for specific performance of a contract dated 1.6.1978 directing the defendants to execute and register a sale deed and to receive a sum of Rs. 37,500 or any other sum of as may be determined by the Court. The defendants in that suit are R.B.S. Mani, R. Sankaran, T.G. Sairam and Rama Bai. Defendants 3 and 4 in that suit are the plaintiffs in O.S. No. 3 of 1987 referred to earlier. The first defendant was the prior owner of the suit property and the second defendant was his power agent. That suit having been dismissed, the plaintiff in that suit has preferred A.S. No. 1284 of 1989. The other two suits are O.S. Nos. 349 of 1987 and 68 of 1988 for recovery of arrears of rent for subsequent periods, one for October, 1981 to June, 1984 and another for July, 1984 to January, 1988 and the only defendant in both the suits is the appellant herein. The suits were decreed and the defendant has preferred appeals. Thus, the appellant in all the four appeals is the same person, while respondents 3 and 4 in A.S. No. 1284 of 1989, which arises out of the suit for specific performance are respondents 1 and 2 in other three appeals. In A.S. No. 1284 of 1989, two more persons have got impleaded as respondents 5 and 6 on the ground that they have purchased the property" from respondents 3 and 4 during the pendency of the appeal on 6.9.1991. In the other appeals they have been impleaded as respondents 3 and 4. For the sake of convenience, we will refer to the parties by their rank in A.S. No. 1284 of 1989.
3. Under Ex. B-11, dated 28.5.1978, the appellant entered into a lease agreement with reference to the suit properly with respondents 1 and 2 for a period of 11 months. The lease is to commence from 1.6.1978. The rent is fixed at Rs. 200 per mensem and charges for amenities provided is fixed at Rs.l50per mensem. Thus, the appellant is liable to pay Rs. 350 per mensem under the deed of lease. The other terms of the lease deed are usually found in all the lease deeds. It is the case of the appellant that there was an agreement for sale of the suit property in his favour on 1.6.1978. According to him, he got into possession of the property only in part performance of the agreement for sale. In fact, he denied the tenancy in his written statement filed in the suit for possession instituted by respondents 3 and 4 in 1981, as stated earlier. The agreement for sale is admittedly oral. The exact date of the agreement is not clear from the evidence, though according to the appellant it was on 1.6.1978. According to respondents 1 and 2 it was some time after the appellant became a lessee under Ex. B-11. The first document as between the parties after Ex. B-11 is Ex. A-3 dated 1.3.1979. That is a letter written by the second respondent to the appellant. It is stated therein that a cheque issued by the appellant had been dishonoured and the appellant should meet the second respondent the very next day without fail. The purpose of the meeting is not clearly mentioned, but it is staled that the matter is very urgent and he should start as soon as he gets the letter.
[After adverting to and analysing the documentary evidence on record, the court proceeded as follows: Ed]
19. Thereafter, the appellant filed on 23.9.1982 the suit for specific performance. In the plain t it is alleged that the first defendant agreed to receive the consideration in driblets and register the sale deed as and when the plaintiff wanted him to execute the sale deed and as such, no time limit was fixed for the execution of the document. It was also alleged that the appellant is in possession in part performance of the contract. Having stated that a sum of Rs. 32,500 has been paid by way of advance, it is only the balance that is due to the defendants. It is recited in paragraph 5 of the plaint that the plaintiff has ample means to pay the balance of sale consideration and to take the sale deed at all relevant times. In paragraph 6 of the plaint it is slated that after coming to know the alleged sale deed in favour of respondents 3 and 4, a panchayat was held in the presence of respectable people like Mr. Govindarajan, Ex-panchayat Board President of Valasaravakkam, Madras-67, Mr. Kasi Nadar son of Peria Nadar and others for executing the sale deed in favour of the appellant. It is also alleged that the post card written by the said Mr. Govindarajan in that connection will be traced out and filed later. It should be mentioned that no such post card has been filed in court : nor any of the alleged panchayatdars has been examined as a witness in this case.
20. The defendants have filed written statements. While the second defendant has reiterated the case stated in the notice issued prior to the suit and disputed the panchayat alleged to have been held, defendants 3 and 4 have claimed that they have purchased the property bona fide for full value without notice of the alleged agreement in favour of the plaintiff.
21. The trial court has given the following findings : (1) The appellant is not in possession in part performance of the contract as claimed by him, but is in possession only as a tenant. (2) The appellant's case that no time limit was fixed for completion of the transaction and the respondent agreed to receive the amounts indriblets is false. (3) The agreement for sale is not valid in law as no time limit is specified. (4) The case of the appellant that he paid a sum of Rs. 32,500 is false and he paid only Rs. 3,101 towards the sale consideration. (5) The appellant has never been ready and willing to perform his part of the contract. He has not also deposited the balance of consideration at the time of filing of the suit or at any later date. (6) The appellant having agreed that if he fails to conclude the transaction before the end of Tamil month Chithirai, cannot make a grievance of the sale in favour of respondents 3 and 4. (7) The appellant is liable to pay the arrears of rent as claimed by the respondents in all the three suits. On the above findings, the trial court dismissed the suit for specific performance and decreed the other three suits.
22. We have already referred to the entire documentary evidence on record. A perusal of the same shown that the appellant has never been ready and willing to perform his part of the contract. He has not been able to pay the amount of consideration as agreed. He has not even been able to pay the rent of Rs. 350per mensem as specified in the lease deed Ex. B-11. The appellant has been repeatedly praying for time and on every occasion he has been giving an assurance that he will complete the transaction within a short time thereafter. In the letter dated 29.1.1980, Ex. B-3, the appellant assured that he would complete the transaction before the end of Tamil Month Chithirai i.e., before the middle of May, 1980. Once again he assured the respondents that he would complete the transaction before the end of Thai. That was under Ex. B-1 dated 8.10.1980. Thus, the respondents have been waiting for the appellant to complete the transaction and were as much considerate as possible. They were waiting till the end of Thai. In fact, they informed the appellant that they would proceed to sell the property to others if he did not complete the transaction as agreed to by him. It is only thereafter, they executed Ex. B-21 and Ex. B-22 on 16.2.1981 selling the property to respondents 3 and 4.
23. In the oral evidence, the appellant has not fared any better. He has repeated the false case pleaded in the plaint. As regards the alleged panchayat, he has deposed that a panchayat was held in the presence of the president of Valasaravakkam village panchayat and he collected money pursuant to the panchayat. He claims to have sent a sum of Rs. 10,000 being a portion thereofbydraft from Bangalore. The draft never reached the respondents. As regards the lease transaction, he has stated that he was occupying, the premises as a tenant at the time of agreement. He has reiterated the same in the chief-examination itself that even before the agreement, he entered into a lease transaction. It is his further case that what all was agreed no other details were determined. It is also stated that it was not determined as to how much amount should be paid in each instalment, nor the time within which the sale deed should be completed was decided, according to him. He has no explanation for his failure to reply to the letters written by the second respondent, to which we have made reference already. He has admitted that he has not paid any amount whatever for the building, though headds that if the second respondent had demanded rent, he would have paid the same and that he is prepared to pay the rent now. In the cross-examination he has slated, that, he has not taken any steps to get back the lease after the agreement for sale was entered. He states that he is liable to pay rent till he gets a sale deed. His examination was over on 11.4.1989. The examination of D.W.I was completed on 20.6.1989and the evidence of D.W.2 was completed on 28.6.1989. Thereafter, the appellant filed applications to recall himself and he examined himself once again on 18.7.1989. He marked Exs. A-3 and A-4.Heclaims that he sent a reply to Ex. A-4, but a copy of the reply has not been filed.
24. It is not necessary to refer to the evidence of the respondents as the evidence of the appellant is wholly unsatisfactory. It is clear from what we have stated above that the appellant has never been ready and willing to perform his part of the contract. It is well settled that a person cannot claim the relief of specific performance unless he proves his readiness and willingness to perform his part of the contract, vide: H.G. Krishna Reddy and Co. v. M.M. Thimmiah . It is also seen that the appellant has come to court with a false case that no time limit was fixed for completion of the transaction and that he was permitted to pay the amounts in driblets. We have already referred to the letters which show that the appellant himself fixed the time limit and the respondents gracefully agreed for such extensions. In spite of such extensions, the appellant failed to perform his part of the contract. It is also seen that the appellant ha put forward a false case that there was a panchayat. There is no evidence whatever to substantiate that case.
25. As regards the character of possession the appellant has again chosen to deny the tenancy. In fact, in the written statement filed by him in C.S. No. 3 of 1987 he has categorically asserted as follows:
This defendant specifically denies having executed a letter of tenancy either in favour of the plaintiffs or their vendor.
This written statement was filed on 26.3.1982. Six months later, he has filed the suit for specific performance on 23.9.1982. Once again he has reiterated that there was no tenancy and he is in possession only pursuant to the contract, of sale. That case is falsified by the production of Ex. B-11, which he had to admit. We have already referred to his admission that there was a tenancy agreement before the agreement for sale. Thus, the appellant is guilty of making a false plea. It is well-known that a person who has come to court with a false case is not entitled to the equitable relief of specific performance, vide: G. chelliah Nadar (died) and four Ors. v. Periasamy Nadar and three Ors. (1993) 2 L.W. 84 and Nallaya Gounder and Anr. v. P. Ramaswami Gounder and three Ors. (1992) 2 L.W. 86.
26. It is contended that time is not the essence of the contract and the mere fact that the appellant has not been able to pay the entire amount within a particular time will not disentitle him to the relief of specific performance. No doubt, ordinarily in contracts relating to immovable property, time is not the essence of the contract. But, in the facts and circumstances of each case, the court can come to a conclusion that in a particular case, time has been made the essence of the contract. In Dr. Bal Saroop Daulat Ram v. Lt. Col. Lakhbir Singh Kirpal Singh and Anr. A.I.R. 1964 Punj. 375, a Division Bench has held that the normal initial presumption of time not ordinarily being of the essence of contract in case of sale of immovable property, is not statutory or absolute and irrebuttable and circumstances of a given contract by clearly negative it. In Chand Rani v. Kamal Rani , the court stated that though as a general proposition of law time is not the essence of the contract in the case, of sale of immovable property, yet the parties can intend to make as the essence. On the facts of the case, the court held that the time was of the essence of contract. In the present case, we hold that though initially the respondents were willing to extend the time as requested by the appellant, they have made it clear to him unequivocally that he should complete the transaction before a particular date. In fact, the appellant himself has assured the respondents that in case of default, they were free to seek other purchasers. Hence, in this case we hold that the appellant is not entitled to claim the relief of specific performance as he has not come to court within the time. We have also pointed out that the suit has been filed long after the appellant was informed of the sale in favour of respondents 3 and 4. There is absolutely no explanation on record as to why the appellant was keeping quiet for such a long time.
27. As regards the quantum of amount paid, the appellant has not proved that he paid a sum of Rs. 32,000 as claimed by him. The evidence on record only proves that he had paid a sum of Rs. 30,101 as found by the claims that he paid a sum of Rs. 2,500 towards taxes and repairs. But, there is nothing on record to substantiate the said claim. No tax receipt has been filed by the appellant. Hence, we affirm the finding of the trial court that the appellant paid only Rs. 30,101 and he has raised a false plea in that regard also.
28. Learned Counsel for the respondents have drawn our attention to the judgment in Radha Singh v. Santokha A.I.R. 1976 H.P. 66. The facts of the case are almost similar. The agreement was entered on June 4, 1965 and after a protected correspondence, between the parties, the vendor finally wrote to the purchaser on 20.12.1965 that the sale deed must be executed in the month of 'December, 1965. He also sent a notice to the purchaser on 24.12.1965, but received no reply. On 10.1.1968, the vendor sold the property to third parties. Thereafter, the suit for specific performance was filed. The contention was that a notice repudiating the contract was not given by the vendor and a reasonable opportunity was not offered to the purchaser to perform his part of the contract and as such, a decree for specific performance must be granted. Rejecting the said contention, the court said:
One of the essential factors in a suit for specific performance of a contract is that the plaintiff must first allege and then if he is traversed, prove (a) that he has performed all the conditions which under the contract he was bound to perform, and (b) that he has been, ready and willing at all times from the lime of the contract down to the date of suit, to perform his part of the contract. It is true that in a contract for sale and purchase of land time is not essence of contract but either party can make it so by giving notice. A similar intention may be inferred from the nature of the property, surrounding circumstances and whether commercial element is involved. Readiness and willingness to perform and includes ability to perform. It is incumbent upon the buyer to satisfy the court that he was ready and willing with the money, or had the capacity to pay for the property and that he had at all events made proper and reasonable preparations and arrangements for securing the purchase money. One has then to consider the facts and circumstances arising in the case in order to arrive at a finding as to whether Rakha Singh was ready and willing to perform his part of the contract.
29. In the present case, a letter was sent by the second respondent clearly performing the appellant that the contract stood cancelled. That is under Ex. B-10 dated 8.9.1980. The appellant having received the said letter, has not sent any reply thereto. There is no explanation as to way he did not send a reply.
30. Learned Counsel also refers to the decision of a Division, Bench of Allahabad High Court in Sohan Lal v. Atal Nath A.I.R. 1933 All. 843. The Division Bench said that indefiniteness of time may be a ground for refusing specific performance. On the facts of the case, the Bench held that there was no such indefiniteness. But, in the present case, the appellants' version. As that the time was not fixed. If the terms of the contract are vague, they cannot be enforced in a court of law. Vide Section 29 of the Contract Act.
31. Learned Counsel for the appellant invites our attention to the decision of the Kerala High Court in Nair Service Society, Changanaceny v. R.M. Palat . The court said that if there is no statement in the contract regarding the price to be paid, the law allows a standard of reasonableness, and accordingly, a fair or reasonable price was recoverable on the basis of a term to be implied in the contract; but when the terms of a contract exclude that a reasonable or a fair market price was intended by the parties, it is not possible to imply such a term. No doubt in this case, there is no dispute as to the price of the property. But, there is no definteness as to the time of performance.
32. We have already referred to the circumstance that the appellant caused the return of Ex. B-18 with a false endorsement that he was "not found", though he was very much present in the said address written on the envelope and he had himself written a letter on 8.10.1980, That shows the extent to which the appellant will go in order to defeat the rightful claim of the respondents. Having regard to all the facts and circumstances of the case, we are of the view that the court below has rightly refused to exercise the discretion in favour of the appellant and dismissed the suit for specific performance. By no stretch of imagination, the appellant is a person entitled to claim the equitsble relief of specific performance. Consequently, A.S. No. 1284 of 1981 is dismissed with costs.
33. In A.S. No. 152 of 1990,a new contention is sought to be raised by learned Counsel for the appellant. It is contended that the suit is based on a tenancy and the court fee payable on the plaint is also under Sec,43 of the Tamil Nadu Court-Fees and Suits Valuation Act only on the basis of a tenancy. Reliance is placed on the case of the respondents that the appellant entered the property as a tenent in the first instance and he was in possession only as such. It is contended by learned Counsel that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act would apply to the case and the suit in the civil court is not maintainable. Placing reliance on the judgment of the Supreme Court in East India Corporation Limited v. Shree Meenakshi Mills Limited , learned Counsel contends that the civil court has no jurisdiction to entertain a suit for eviction in the case of a tenant who is entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, even if the tenant has denied the title of the landlord. This contention was not urged either in the trial court or in the memorandum of appeal in this Court. For the first time the point was urged in the course of arguments in the appeal by learned senior Counsel for the appellant. No affidavit is filed before us stating that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act have been extended to the area in question. The property is situated in Valasaravakkam village, Saidapet taluk. The description of property contained in the various suits shows that it is within Valasaravakkam village. There is material on record to show that Valasaravakkam is a Town Panchayat. We have already referred to the plea of the appellant in the plaint in O.S. No. 52 of 1984 that a panchayat was held in the presence or respectable people like Mr. Govindarajan, Ex-Panchayat Board President of Valasaravakkam. In the evidence, he has stated once again that the panchayat was held in the presence of the President of the Village Panchayat. Though he calls it a village panchayat, the evidence on record shows that it is a Town Panchayat. Ex. B-21 is the sale deed under which respondents 3 and 4 have purchased the property from respondents 1 and 2. In Annexure 1-A to the sale deed, the annual rental value is mentioned as Rs. 331.10as per panchayat tax. A typed set of papers has been filed in this Court in Crl.M.P. No. 16996 of 1992 in Crl.M.P. No. 5480 of 1990 in A.S. No. 162 of 1990. The typed set of papers is filed by counsel for respondents 3 and 4 in that appeal (respondents 5 and 6 in A.S. No. 1234 of 1989). Reliance was placed by learned senior Counsel for the appellant on a document contained in the said typed set. The typed set is expected to contain true and correct copies. One of the documents included in the typed set is a copy of the plaint filed by the appellant in O.S. No. 1863 of 1991 on 30.9.1991. It is a suit filed by the appellant against respondents 5 and 6 for injunction restraining them from interfering, with his possession. There is a specified averment in paragraph 10 of the plaint that the property is situated within the jurisdiction of the court of District Munsif, Poonamallee. That proves that the property is not within the city limits. The contention raised by the learned senior Counsel for the appellant that the property is situated in a part of the Madras City is on the basis of the Postal Division that Valasaravakkam is Madras-87 and that respondents 5 and 6 themselves filed a suit as against respondents 3 and 4 on the original sideof this Court in C.S. No. 986 of 1991 which ended in a compromise. It is stated by learned Counsel for respondents 5 and 6 that the suit was filed in this Court because the case of action for the suit viz., the agreement on the basis of which the suit was filed, was entered in madras.
34. There is an order by the Executive Officer of the Town Panchayat of Valasaravakkam transferring the registry in favour of respondents 5 and 6 from that of respondents 3 and 4. That is found at page 207 of the said typed set of papers. That shows that Valasaravakkam is a Town Panchayat. A tax receipt has also been included in the typed set and it is found at page 201. That is issued by the executive officer of the panchayat. That evidences payment of tax for the period from 1.4.1992 to 30.9.1992. That also shows that the property is situated within the Town Panchayat.
35. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is not applicable to the entire State of Tamil Nadu as such. Sections (2)(b) provides that the Act shall apply to the City of Madras and to the City of Madurai and to all municipalities constituted or deemed to have been constituted under the Tamil Nadu District Municipalities Act, 1920 in the State. We have now found that Valasaravakkam is only a Town Panchayat and not a municipality. Hence, the Act by its own force will not apply. Under Sub-clause (c) to Sub-section (2) of Section 1, the Act provides that the Government may, by notification, apply all or any of the provisions of the Act except Sub-section (2) of Section 3, to any other area in the state with effect from such date as may be specified in the notification, and may cancel or modify and such notification. Counsel appearing before us on either side has not been in a position to assert whether a notification has been made or not. The burden is on the appellant to prove that such a notification has been made. Yet, we directed the Registry to contract the Secretariat and find out whether a notification has been issued. We have been informed that so far the Tamil Nadu Buildings (Lease and Rent Control) Act has not been extended to Valasaravakkam Town Pancnayat. The burden is certainly on the appellant to prove that the Act has been extended to the Town Panchayat in which the suit property is situate and the civil court has no jurisdiction. As pointed out already, the appellant has filed to produce any material whatever in support of that contention.
36. Hence, we reject the contention of learned senior Counsel for the appellant based on the judgment of the Supreme Court in East India Corporation Limited v. Shree Meenakshi Mills Limited . Consequently, the appellant will have no defence whatever to the suit for possession. There is no doubt that the plaintiffs in the suit, who are respondents 3 and 4 are entitled to the property, having purchased the same under Exs. B-21 and B-22, and they being the owners and the tenancy which was granted to the appellant earlier by defendants 1 and 2 having been terminated, respondents 3 and 4 are entitled to get a decree for possession. The decree passed by the trial court in O.S. No. 3 of 1987 for possession is to be confirmed.
37. As regards the claim for arrears of rent, in the three suits O.S. Nos. 8 of 1987,349 of 1987 and 66 of 1988, the appellant has no case whatever. In the evidence he has admitted that he is prepared to pay the rent as agreed. It is also admitted that he has not paid a plea towards rent from 1.6.1978 till the application for stay filed by him in the present appeal was dismissed as regards the decree for recovery of rent. It is stated now that in the execution proceedings, the appellant has paid the entire rent due. Whatever it may be, the decrees for rent passed in the three suits are unassailable and they have to be confirmed. Consequently, the three appeals A.S. Nos. 162 to 164 of 1990 are dismissed with costs in A.S. No. 162 of 1990.
38. Thus all the four appeals are dismissed with costs in A.S. No. 1284 of 1989 and A.S. No. 162 of 1990. No costs in A.S. Nos. 163 and 164 of 1990.