Karnataka High Court
Shivaram S/O Gurunath Rajoli vs Hanumanth S/O Ananth Malahalli on 20 April, 2012
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT I)HARWAD
DATED THIS THE 20]11 DAY OF APRiL, 2012
BEFORE
THE HON'BLE MRJUSTIC E SUBHASH B. ADI
3Qi4LQ9
ciw.
RFACROB IQIL2Q1O (SP)
IN RF'A.3014/Q09SP
BE'IWEEN:
SHIVARAM, 5/0 GURUNATH RAJOLI,
Age:73 YEARS, 0CC BUSINESS,
R/AT HINDWADI.
BELGAUM, APPELLANT
(By Sri : G.R. ANDANIMATH. ADV.)
AND
E-IANUMANTI-i, 5/0 ANIVNTH MALIHALLI.
Age: 70 YEARS. 0CC: PENSIONER,
R/AT WADE ROAD,
VADGAON. BELGAUM.
2. ROHINI, WjO LATE BALARAM MALIHALLI,
Age: 60 YEARS, 0CC: HOUSEHOLD,
R/AT DESHPANDE GALLI.
ABOVE GANESH BEEDI.
BELGAIJI
S4\JJ)-TT I) / () A 21'J--I VIAL I HALL I.
Ae: CC;' \rr;'Cç
0CC : 1101 SEHOLD,
R/k1 DEST1PANDE GALLI
ABOVE GANESH BEEDI.
E3ELGAUM.
4, VIMALA W/O SHRINTVAS TADKOD,
SINCE DECEASED BY HER SON
4A VILAS 5/0 SHR1NIVAS TADKOD.
AGED ABOUT 40 YEARS.
0CC SERVICE.
R/AT VLJAYA APARTMENTS,
VISHRAM BAG, SANGLI.
(MAHARASTRA STATE)
5. SADHANA.
W/0 VASUDEV AMBEDKAR,
0CC HOI. SEHOLD,
R/AT P & T QUARTERS.
VII FLOOR.
NEPR VADALA RAILWAY STATION.
MUMBAL300 031. RESPONDENTS
(By Sri H,ANUMANTHA ANANTH MALJHALLI-PAR'fY IN
PERSON RI,.
SRI DINESH M KULKARNi \DV FOR R2 R3 R1A
AND R5- NOT REPRESENTED.)
THIS RFA IS FILED U/S 100 OF CPC PRAYING TO SET ASIDE
THE JUDGMENT & DECREE DATED 16/01/2009 PASSED IN
OS,NO.63/2005 ON THE FILE CF THE III ADDL. CI\TIL JUDGE
(SR,DN). BELGAUM. AND ETC.
01'2Oi0
BE'PVEEN
HVNUMANT,
S/0 ANANTh MALIHALLI,
AGE AL OUT 80 YEARS,
0CC : PENSIONER,
F 0 WADE P0 D VADAGAO\
BELGAUM 590 002.
SF'I.FVARAM.
()GURUN4R r?j\JQLJ
AGE 74 YEARS 0CC BUSJL\SS
R/O: HINDWAD1,
BELGAUM590 002.
PHIS REA CROB IS FILED U/O 41 RULE 22 OF CP( PRAYING
IX) MODIFY TIlE JUDGMENT AND DECREE DATED:16 01 2009
PASSED IN O.S.NO.63/2005 ON FHE FILE OF rHF, III ADDL, CIVIL
M. IN SO F\RAS FINDINGS ON ISSUF NO 2
JUDGE (SRDN) I3FLGAI
T
AND \DDL ISSUE NO.1 AND DISMISS TIlL SUIT, AND ETC
IHE. APPEAl \ND (ROSS OBJECIIONS (OMING ON FOR
ORDERS PillS DAY THF (OURJ DFI IVFRFD PETE FOL I OWING
JUDGMENT
HF N No.3014/2009 and RFA Cr Oh No 101/2010 are by the plaintiff and delendant No. 1 respectively in O S No,63/2005, H S A,No l48/2009 is by the defendant in O,S,No 178/2010 2 R F As and (ross Objections are dealt together H S.A is dealt separately I resnderit Nos 2 1 ii he R F N eler dar ))p i 1€ d lei 4 the defendants to execute the sale deed and get the same registered, in case the defendants fail to execute the sale deed, then by appointing Commissioner, in the alternative for direction to refund the ad ancc consideration amount to the plaintiff with damage of Rs, I 3,50,000/ with future interest ' I 8°o per annum, further, for declaration that, the judgment and decree in OS.No 133/1999 dated 1 3 2004 on the file of Civil Judge (SrDnj, Belgaum, is not binding on the plaintiff.
5 Plaintiff was in occupation of the suit schedule property as monthly tenant, he is carrying on business in taUonery and cosmetic and other items since 1959, on monthly rent of Rs.600/ On 23rd May 1989 the original owner of the suit schedule property Ananth R Malihalli died leaving behind two sons i e defendant No I md late Balaram and threc daughters lefcndants 3 5 The names of th legal cpre entatit es of the c eased An in I merc r tered ir he i. ri cy core The sccond on Balarat I lie I t hehm r t bin a itt egal presc tic mh Ic Ia o I he leen us nt e I r I ii gr e x s Ni h thc he iff cxc lit ir I da 99a r I ci it 0 3 it was acknowledged by the defendant Nos.2. 3 and one Sudhindra, jar, son of defendant No.1. Defendants were under obligation to complete all the formalities including obtaining cleara rice certificate from ineorne Tax Department as required under Section 230(A) of the Income Tax Act (hereinafter referred to as the Act' for short). It was also agreed that the sale transaction to be completed on or before 30th June 1995, however, the defendants did not perform their part of contract in terms of the agreement. Defendant Nos.2 and 3 and Sudhindra. demanded additional advance amount in violation of the terms and conditions of the agreement and started harassing the plaintiff. Plaintiff had no option except to pay the said amount and accordingly, deli' nclant Nos .2 and 3 and Sudhindra collected the said amount mcl acknowledged the receipt. Plaintiff has •paid huge advance of consideration hoping that tiac defendants will perform the.ir part of contrt.ct and execute the sale deed in terms of the agreement, Plaintiff was aiwavs ready and willing a pertorrn his Dart of contract rhht from he date 01 agreement Lit war peareah juesun h deteoooots W 00I1fl in fliD( tax clearan.ce eertifica.te, Plaintiff, who was on ve cordial terms with the defè.ndants. did not insist •to give in wiiti.ng a.s to •the. P .OOlTfl5e FIOtCIe ov aeten.damo; to secure inc iri.conm lax 6 clearance certificate. Every time the plaintiff used to ask the defendants regarding compliance, the defendants for one or the othei reason were postponing the same. Plaintiff believed the ecplaiiation given br the defendants that they '1ll 'Ci tire the Income tax learano eitllh at( after tlai seuk flick Intunal disputes.
6 flown er, the defendants in order to harass and deprive the plaintiff of his le&Utiniate right and to deny the execution of the sale deed. got a suit filed in O.S.No.133/1999 amongst themselves, and got the said suit compromised. This conduct of the defendants made it clear that. the defendants were avoiding to execute the sale deed In 4 to 5 years' time. the market value of the suit piaipcrt also increaced .1 onsiderabh l)elendantc.
'w ito wei e Lx'uiicl to exe"uw the %ale deed the' tur1ed avoiding
C ,ame u inn ha. d rou 1 hovuer hey 'crt )t
entitled zr lemand nhanci U i un'4d( lotion Itidnecik to
ret aitf t .1 Ic te I.
(fl1n'fl"stC lit' let' iti 'fpf' a. n- 'mL.rr :'t u '! '1±-- nla'VIitI
' ma Ku n I itt ' It. Ii u 'li eel intc 11111 1 adc t'
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for specific performance of tile contract, a' the said decree bad come Into force alter the agreement ol sale and it Is nullity in law
7. l)elenddrlLs Vert' trying to UC the ronipiornise deere to avoid cxec ution of the sale deed in terms of the agreement The judgment and decree in O.SNo 133/1999 is not binding on the plaintifi Defendants with intention to make unfair gain for themselves had filed the said suit. i)efendanis Instead of performing their part oi contract were making an attempt to get their name mutated in the City Survey Record and also making effort to alienate the unit property to third party by suppressing the agreement cxeeuted In favour of the plaintiff 8 There i U exchange ol not ice with regard to the tenaiiq right The pla null ha 'neii appropnatc reply One S.S.Kousandai hIdd made a 'inccrt efini t It) toflviflc e the cit I 'udants. bi I tW 'frle idan loi Cu rta oir e'L I- nnwr to I di nt it n '. u t 1w led d 1 tenr ,i ti'e •.tr' efl)j'Tg
1.) If at II jeci Wi', Liii l' ri 1(1 lIt cliii mmlii' 'I''l!,. I '1 '.Ij ti1'' ..'itt.' 1jt-- •v--
' t ''' 8 to execute the sale deed by receiving the sale consideration. howevet, defendants refused to execute the salt deed
10. The cause of action ac ented to the plaintiff in Dec embi r 2004. when the defendant', refused to execute the salt- deed. Accordingly. he filed a suit for spec Ilk perlonnance.
11 On service of summons defendant No 1 fIled a written statement tnreralta denying the plaint averments. description of the suit schedule property and alleged that the defendant nos.2 to 5 are neither proper nor necessary parties in vIet of the judgment and decree In 0 S.No 133/1999 Defendants 2 to 5 have no right, title and interest in the suit schedule propert) L2 Plamtffl was thc. tenant in possession on monthly rent I Rs 600/ hr., wnanc been terminated and h is been dirt. cci tr luff ud lehw it o o o ti Ui cchcdulepro c 1 i Fhs lefcnda hc ti. s cow i the slut t lit d'iic 1 u opei it He has rxcrer--ecl h'- lenvittI ,iehl ii) L rrpai.ti.it Lr iirfllC' .I(J( •lflhI:IIIIjlg,k ihe fl• I%--f%%Jfl!I IN If Ii(l,4flt dn' Irtt.h defet .1 'C nl I I ''c'' '%
1. ill ' • :''a'" " •'s ; I 1 tt .1, '' '.a'I!. ' • •.. st'% • j• .1% e 'e iP :' 13, Defendant No. I admitted the execution of agreement dated 6. 1. 1 995 in favour of the plaintiff by defendant Nos. 1 to 5. Since the plaintiff did not comply with the essential terms and conditions 01 iht' said arei-'mer1t. the payrneil is ivere 1101 made wilhiit the tim stipulah d under thc agr eni nt and did not obtain the 'ale deed within the time stipulated in the agreement.
14 Date of completion of the sale deed was fixed as 30w June 1995. Therefore, plaintiff ought to have instituted a suit br specific perfoi'mance of the agreeniem within three years from 301h June 1 995 Since t he suit is filed beyond three years. same is barred by time. It is false to say that the defendants did not perform their part of contract in terms of the agreement and plaintiff did not et the sale ilec-d executed. Plaintiff has violated the terms and coiidiuoiis of ihc agrcenen Defeudani No. I ilso cu nied that the IcIer dant nor iar i saW tin ai t ft.
payments iaJ n th 1 h-'rnlamn Nos ) ind 3 and ip
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was executed by the defendants within stipulated time of 15 days stated in the legal notice. Plaintiff had become aware that the defendants are not willing to execute the sale deed, hence, the limitation for institution of the suit commenced in the montI of June 1997. Defendant No.1 served the nouce dated 28.4.1999 on the plaintiff, calling upon the plaintiff to surrender vacant possession of the suit schedule property. Plaintiff had replied to the said notice by his reply notice dated 25.5.1999. Plaintiff had the knowledge that the defendants had refused to execute the sale deed. even then the suit was not filed within three years from the said date also. Hence, the suit is barred by limitation.
16. Plaintiffs assertion that he was ready and willing to perform his part of contract Is specifically denied. Further, stated that the defendants ified the suit after limitation to ifie the suit for specific performance expired. The stand taken by the plaintiff that the suit was pending has no relevance on the performance of the contract by the plaintiff. Plaintiff was fully aware that, neither the Institution of suit in O.S.No.133/1 995 nor its decree would come in his way to file the suit for spec ific performance. Decree In the said suit Is valid and binding inter se between the defendants. Plaintiff is only a tenant In occupatio n II a of part of the suit property in O.S.No. 133/1995. He has no right to question the validity of the said decree. There is no obligation on the part of the defendants to obtain consent of the plaintiff to divide their family property.
17. That the income tax clearance certificate was not essential for the plaintiff to perform his part of contract. Even assuming without admitting that it was so, plaintiff was aware at the time of the contract that the last date was fixed for performance of contract i.e., on or before 30th June 1995. Plaintiff has a cause of action, if the income tax clearance certificate was essential, immediately on expiry of 30.6.1995. Plaintiff knew that the income tax clearance certificate was not essential to perform his part of contract. Plaintiff by twisting the terms of the agreement has filed the suit. Plaintiff was aware that the suit property is situated In commercial locality and has deliberately avoided to perform his part of contract within the stipulated time by taldng the advantage that, he can continue in possession. Hence. his right got extinguished in 1998.
18. First defendant terminated the tenancy of the plaintiff and sought for possession of the suit schedule property. Plaintiff being afraid that he cannot resist the suit for eviction has come out with the manipulative and untenable suit, He is iakiiu advantage of the time barred agre'enienl of sale, prevelitil ig the delendani s Iron i alciiig steps to I ecovcr possession
19. There was exchane of nutice in 1 997 aiid 1999. Plaintiff had the knowledge of the exchange of notice and had the knowledge that die deft'ndaiits were Hot inclined to sell the property under the aireernent The limitation had begun in 1997 1999 In view of the lapse of time, ihe right to seek suit for specific performance is extinguished under the Limitation Act.
The cause of action arose on 3Qh June 1995 ie.. last date flxed
for performance of contract. On these pleadings and others
deftndait o 1 contended that de suit for specific performance
is liable o be dismissed
20 1 In U t
roar on the basN of tlit-c pIeadiis ti'ani'd
tim nliowin csu-s:
t jf d J iii I I c
Ac( Ci a aqae rrzt sak U I uq C Zfl(j I
-,-'Ii ia ui' pa pcrai for 1UJQ Vt U nod o' WeO
Us IOU I)iO yIrnpSi rlioiar, tot'urds 'hc :--WC
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3. Whether plalnt{jJ proves that dqfenclcznts with a m.alqflde Intention filed a suit O.S. 133/99 having knowledge about the execution of the agreement of sale In favour of the plalnWJ. fraudulently compromised the said suit to deJèat the rights of the plaintiff hence the Judgment and Decree passed In OS. 133/99 by the Civil Judge (Sr.Dn.J. lIe4jawn is not binding on the rights qf the plcdnt(fI?
4. Whether plalntl(J is entitled for relief qf specific performance qf the agreement or In the alternative refund of the earnest money with Interest at the rate of 18°o p.ct?
3 Whether defendant lSIos.2 and 3 prove that the suit is badfor misjoinder of the parties?
6. Whether defendant Nos.2 and 3 prove that the sit it is nor properly valued and Court fee paid Is mstft1cIent?
Whethe, plauuJij is entitledfor relief sought? What order or decree?
2]. Before the trial court. plaintiff got himself ecamined a' PW None was examined ii behalf of the dc Ic udants r the ndtnc nb ruflpmtifgotI 111 PCnarkt. this endi tic Nc cloc u'nc'nl err . ocluq'ed 01 marked ij,• 'hi defenrlaw In irt o -eva I Iii ClltC oid ft t )I0 I rid t kt 'alt.' qJ•j 1. r111L( ii' (' .ci( * ' .. . 'US) ' iQi C. It'.-- . .4 11 S .fl --' bt''ai. : '''J' • ,' P i..:,' •V d 1 .t_ .5 t 14 advance amount of Rs.4.OO.000/- towards the sale consideration.
23. That the plaintiff has proved that he was ready and willing to perform his part of contract. However, plaintiff has failed to prove that the defendants with malafide intention have filed the suit in O.S.No.133/1999, having knowledge that the execution of the agreement of sale in favour of plaintiff, fraudulently compromised the said suit to defeat the rights of the plaintiff. The judgment and decree passed in O.S.No.133/1999 is binding on the plaffitlff Plaintiff is entitled for earnest money with interest @ 6% per annum. The suit is not bad for mis-joinder of defendant Nos.2 and 3. The suit Is properly valued and Court fee paid is sufficient. Plaintiff Is entitled for earnest money with Interest. The suit Is not barred by time.
24. On these findings, the trial court held that the plaintiff Is entitled for Rs.4,00,000/- with Interest 0 6% p.a. from 30th June 1995.
25. PlaintIff has filed this appeal questioning the judgment and decree Insofar as it relates to denial of the decree for specific performance of the agreement. whereas, the defendant No.1 has ii flicil the cross objection as against the findings on issue No.2 that the plaintiff was ready and willing to perfonn his part of contract and additional Issue that the suit is not barred by time.
26 1k aid Sri C R.Andanimath, learned (nimsel for the rilaintiff and Srl.llanumantha Ananth Malihaffi. defendant No.1 party in-person. Though defendant Nos.2 to 5 have been represented by the Counsel, but Counsel did not address the arguments l)efendant No. I - party in person submitted thai. he had taken Power of Attorney from defrndant. Nos.2 and 3 and defendant Nos.4 and 5 have iio Interest in the suit property. lie subnutted that. he is making submission for himself and also on behalf of defendant Nos.2 and 3 He also submitted that, in view of the compronuse decree in Oh Iso. 133/1999. the suit scheclult property has fallen to lii' share and as -
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1 eh he Is ihe sole
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June 1995. He submitted that. the agreement stipulates that the sale deed to be executed on the date of payment of last Instalment. Further. stipulates that In case there Is a failure to pay two coflsec utire In%Ialnlents igreement tands cancelled and the vendors had .i right to elite r into trar1a' tlon with otheis. however, the said conditions were subject to obtaming of certificate under Section 230 A of the Act and for which the vendors were responsible Admittedly. the Income tax certificate was not obtained by the vendors
28. Though the date was fixed for payment as 30th June 1995. however the defendants i eceived the instalment amount even after the explrv of the time fixed under the agreement I.e.. 28.8.1995 a' per Ex.P21 i.e. beyond the stipulated time under the ajareenwnt A% such 11w deienclants had waived thcii right ana rcc eit 01 thc avment dtex me au iate ifflci ii aRts 1 it at tie r 'a I tin s me Ic tout 'lo %'ipport I1I ror'T. TitiAn jir ri-lied 'jvi Ila-- Iatltn'cn' I t't% ourt rep'ri.'.J lii 411? is.; li41C I U: iii'S %L11)lI1ll't ! '1j1L 'h.z lift--
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29. He also relied on the provisions of Section 230 A of the Act and submitted that the said piovision was in force till 1.6 2001, the Income tax clearance certificate was must, as such the defendant, having failed to pi oduce flu mc ome tax clear tncc ccrtilicatc under 'kctlon 230 1 of the Act within flu stipulated time, the time was not treated as the essence of the contract.
JO. lie also relied on the evidence of thc plaintifi PW 1 and submitted that, 1W 1 in his evidence at para5 has stated that he was always ready and willing to perform his part of contract and he was repeatedly making requests to the defendants to perform their part of contrac t howner the defendants had assured him that the will perform flu if part of tin, contract ifter they rccened hc mc )mc tax cc rtthc ate and m(rtnc nix na oIieIr' in sctuca nisp.t tin ncien t bssi icc alcce r I riiai ax a h nf dne c. I tAr Ii ic.l 1 t' It 1 1 ii ai sc.
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1.3.2004 and thereafter, the plaintiff tiled the present suit for specific performance.
31. He also submitted that, the defendants have not led any evidence to support their plea, hence, adverse inference should have been drawn against the defendants. To support his contention, he relied on the judgment reported in AIR 1999 SC 1341 para-70.
32. Further supporting the finding on ready and willingness, learned Counsel relied on the pleading at paragraph-8 of the plaint and the evidence of PW- 1 to show that. the plaintiff has not only pleaded that he is always ready and willing to perform his part of contract, but In the evidence also he has stated that, he is always ready and willing to perform his part of contract. Defendants had not obtained the clearance certificate from the Income-tax authority, thus, defendants failed to perform their part of contract. To support his contention, he relied on the judgment of the Apex Court reported in 2011(1) 5CC 429 para-22 and ITS 1984 SC 351 at page-353 to show that the provisions of Section 230-A of the Act requires clearance for transfer of any property the value of which exceeds Rs.50,000/- and the said provision was repealed only on 1.6.2001. 19 S.
33. As regard to the limitation, he relled on Ex.P28 - the notice issued by the plaintiff, and submitted that, under Ex.P28 though the last date was fixed as 30th June 1995. however, even after the expiry of the said date, the defendants received the payment. As such. the time was not treated as essence of the contract The defendants were required to obtain income tax clearance certificate, and till then the sale could not have taken place. Since the defendants failed to get the said certificate, time did not become the essence of the contract. Hence, the suit is not barred by limitation. To support his contention, he relied on the judgment in AIR 2001 KAR 442 and Ex.P6 - a reply by the plaintiff informing readiness and willingness to perform his part of contract. This evidence proves that. the contract was kept alive by the parties.
34. He also submitted that, In case of contract for transfer of immovable property, time would never be the essence of contract. He reiled on the judgment reported in AIR 2008 SC 1205 para-9 in the matter of Balasaheb Dayandeo Naik (Dead) through LRs & Ors. -us- Appasaheb Dattatraya Pauxzr.
35. On the other hand, defendant No.1 - party-in-person submitted that, the agreement Ex.P10 is not in dispute. The '0 agreement Ex.Pl0 Itself makes It clear that the time was the essence of 11w contract. He relied on the terms of the agreement and pointed out that. as per the terms of the contract. platntilf wa required to pay the am" tnt In in%talrnent. the laM pa3'tflent was to 1 it made on a hefon 30" Jt inc 1995. 11w agreement specifically mentions that. in cace of lailure to make two consecutive Instalments, the agreement stands cancelled and the defendants will have a right to enter Into a transaction with others. The terms of the contract not only make the time as essence of the contract, but also provides for consequence of failure to perform the contract on the part of the plaintiff. The effect of lhilure to pay two consecutive instalments automatically resultq in cancellation of the agreement as such. the time was treated as essence of tht contract it, s re°ail ku cqi nat I Ii icomt a.
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ia t c nquirem I I I flo 230-Aol It
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37. lIe also relied on Ex.P23 - notice dated 30th June 1997
Issued by tin plaintiff himself to show that, plaintiff had issued a legal notice and thereby had called upon the defendants to accept the balance nf sale con%Ideratlon and execute the %ale dred In his lh our as otlienise lit wouki he constrained to take legal action against the defendants. hi the said notice, he has not mentioned that the delendant' should obtain the Income tax clearance certificate under Section 230 •A and then execute the sale deed, as such, the contention ol the plaintiff that. for want of Income tax clearance .. ertlilcate, he could not enforce the contract does not merit. The fact that he had issued notice as per Ex P23 m 1997 and had not takcn action, shows that, even according to the plaintlit the cause of action aeenied to him in 1997 and the suit is admittedJy med in 2005 much mu' Ii after thc hr itatlon He Iurthc r ubinttted that ir 'new of thc abort thc ut b it Ibviaw 9 als thclnr Ic ictiec s adb3 the lefendants is pet L'cP22 dat'd 25.3. 1 49f) 'hen t the dt-icuaaiu'- ijaci maui t . lear that the are n"t xe utint die 'lt cd ..n'd I inior I the phil iii Ut s. plaint I u4hts I hd Mc U it 'I • at I 2 ii r"ifI 01 'K '. cr Ut w '11 contract and much after three years from the date of Ex.P22. the preM'nt suit is flied. I lence. this stilt Is clearly barred by law.
38. As regard to ready and willingness, he relied on the temis ot the outran undi r ExSlO and submitted that. Ex.Pl0 stipulates the schedule of payments and it also stipulates failure to pay two instalments, the agreement stands cancelled. It makes dear that the time was essence of the contract
39. Insoiitr as Ex.P21. the receipt ol amount In 1995 is concerned, he submitted that the said amount is not received by him. as such. It does amount to payment under the agreement.
40 lIe also submitted that. though he has not led the oral ividence but the plahutili Is required to plead uid prove the 'ana agrmen bt.nieen the piunufi no -lereruant mat tie plaint itt ;u' ..ulwn • 1 ath ciuud t filing to ix'u fnnii Ins part r.f c it itt rdt ath as .r'cu I CC 1 it le suit l ti'rd i'h'u lr iiwt'utic,u: t'tt I) ihe .itflPu-ifli'fl 'S heid
-- 11 ii - C art an lust' rue 'euc lox 'pe abc IX i'T 't .
lit ) ntulf il' (is 'V CM 'TI I
Lii % '3. •flj .Jftnjjl.
ita .g.t
l"''' CLi'' ir .i..'' r 'nh .'',i
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"always ready and willing" from the date ol agreenwn t till execution of the sale deed, On these submissions, lie supported the ndmgs insofar as dismissal ol the suit and submitted that, the 1indins on issue o 3 and additional issue requ ire to he set aside as they an untialy to the pleadings and tin exidenee on record.
41 , Learned Counsel for the delendant \o. I further contended that, the macfort on the pall of the plaintiff proves as to how the plaintiff conducted himself from the date of agreement till filing of the suit. The contention that the income lax clearance certificate under Section 230A of the Act was relevant also does not merit, as even according the plaintiff himself that 1 h f said provision repealed with effect from l 6,2OO I. lion c en It is not in chspute that 1h plaintiff did not come forward t eT the saic deed c eci ted ifl his favour Hi IiII1 i lid ii fl i Itti t \eoi iliOi't' I dali of TIle ae eji ol the said Pro' ISIOT t d IIIC(l hid iiil Tins ilei';\ That pt tiv [hr 'IanPtf wa orci rjn riil nillirjp t prf 5 rj pr F (th tic d 1i That c'rou iiC oiaintitf wa lot read' ai d willino o t ii n n Pt n eH it I or dis ' i I r ' i '-1
42. Iii the light nf the above subniissions. the pOinis that arise br eonsidcral ion are:
1. Whether the trial court was justified in giving a landiricj that the pfriiiitt/t WCLS (ihtt'QIjS rcathj and u'ifluzq to pcrjorTrz Ins purl o/ eou(r(zct bii interpretinq EP. 10 agreement of sale?
2. Whether the trial Court it'as justi/ted in inldinq that the suit ic not barred by time on the ground that the inter se suit was pending amongst the vendors iii OS. 133/1999?
3 Whether the trial court was justified in holding that the plaintiff is riot entitled for specific performance of the contract and oril[J or refund of earnest money with interest as there is ten zjears delat; in filing the suit?
4 11 fa is vhich re not in dispute ai C Tb deft n(iaHb I c 1 trIO deIetdtni T Srid1ii Ira nO ieceasc(I Baiarm had cat tO irte1runi i aie- in tav tar ( ( Ufdtal lSj i \( a t[): I h ca ta / iitrr and 25 Birje, West by property of Apate. South by properly out of CTSNo. 1536/2-A and North: by road.
44. That the vendors had agreed to sell the schedule property for sale consideration of Rs 13,50,000/-. Under the aUreernent vendors acknowledLc the receipt of a sum of Rs. I ,00,000/- as advance sale consideration on the date of agreement. It was further agreed ihat. the remaining sale consideration was to be paid in six installments on or before 30.06. 1995 as stipulated under:
SiNo. Amount (Rs) Aniount in words On or before
1. 1,00,000/- Rupees Oneiakh only 28.02.1995
2. 1 .00,000/- Rupees One Iakh only 07.04.1995
3. 2,00,000/- Two iakhs 30.04.1995
4. 2.50,000/- Two lakhs fifty 31.05. 1995 sancL 1 i 3.00.000/- Three lakhs 08.06.1995 2,50,000/- Two lakhs fifty 21.06.1995 •thou sand.
7 50.000/- Fitly thousand only 30.06. 1995 The last navrnent abreed to be paid was on or before 30.6. 1995.
4 L --s --
the last installment at the time of execution of the sale deed; the 26 stamp duty. registration charges to be borne by the plaintiff; further, If 11w' plalnIlif fidis to pay two consecutive Installments. the agreement will be treated a cancelled and the vendors will have a right u enter into transaction with othei s, till completion of tilt ale the plaintiff has to go on paying the agreed monthly rent: at the time of sale. tlic 'MAIIADI' (i.e. upper floor) ill be delivered. It was further agreed that. if any portion out of the above said property Is acquired for the purpose of master plan. the same will be acquired afler execution of this agreement and for 11w same the plaintiff has no right to raise any dispute The amount of Rs 13.50.000/ wIll be the value for the remaining area.
46. ii there is riced of certificate under Section 230A ol the Iwoine lax Act the Vendors will obtain the %aflie or they will xu ute epiraic le dec d' in re'pec o Ihek owm rship ights md luy t e sçorsiblc in te r f tic c drns Iailwc I) lo s 'I e p14 nail 1' is rilt' 'o ap r '1 tIe (null and 1 he '-alt irnis it tie') '"P'l)it 1 t't ilk' I' U)" 1 ii' jj%( nhl:)i%
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ij Iii fl( .4 1 mm \l lit
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47. Since the parties have admitted the agreement. there is no dispute as to the terms of the contract.
48. Plaintiff in his pleadings has relied on two circumstances to submit that, on account of breach of terms of the contract by the defendants as the income tax cerificate under Section 230-A of the income Tax Act was not obtained. and (ii) that there was inter se dispute pending amongst the vendors in 0,5. 133/1999. In the absence of the income tax clearance and in view of the pendency of the dispute in 0S. 133/1999, plaintiff could not seek the enforcement of the contract, though he was always ready and willing to perform his part of contract
49. PW. 1 in his examination--in--chief has stated that, he was always ready and willing to perform his part of contract right from the date of entering into agreement of sale, he was repeatedly requesting the defendants to perform. th.eir part of contract and also re(uestmt the defendants to obtain income ax clearance certili cam and to execute the sale deed. Defendants had assured him tha.t t.hev wm.:ld •perform t.hc.i.r part at cohtract a.nd also assured him, t.he moment. they receive i.ncome tax clearance they will inform hi.m. in writing. It. is the 28 contention of the learned Counsel for the plaintiff that, since the plaintiff was in cordial terms with the defendants he did not Insist upon the defendants to give in writing regarding obtaining of income tax clearance. Plaintiff was informed that due to internal problems, the defendants had not applied for income tax clearance certificate and the moment the internal disputes are settled they wili obtain the income tax clearance certificate. Plaintiff believing their explanation kept quite. On the basis of above pleading and the evidence of the plaintiff, the learned Counsel for plaintiff submitted that the plaintiff has pleaded and proved that he was always ready and willing to perform his part of contract.
50. To consider as to whether the plaintiff was ready and willing to perform his part of contract. Ii is better to refer the documentary evidence produced by the plaintiff himself.
51. The plaintiff himself had issued notice produced at Ex.P.23 dated 30.5.1997. This notice is addressed to all the vendors under the agreement. In the said notice, the plaintiff asserts that he is In possession of the property as tenant since many years and demanded the defendants to accept the balance of sale consideration and to execute the sale deed in his favour as per the agreement of sale dated 6 1 1995 He also has stated that the defendants are postponing the execution of the sale de(d on one pretxt or the other, by stating that (lie plaintiff is lrcad in possession of th propci lv, he need not to n orry Phe texi of the said notice is reprodued haeunder "2. My client is in possession of the property as tenant since many years. My client has kept the balance amount ready lie informed you to take the balance amount and to execute the sale deed in his favour, But you have been postponing the execution of the sale deed on one pretext or the other saying that he is already in possession of the property and as such he should not worry
3. I am therefore, instructed to infonn you should accept the balance amount from my client and execute the sale deed in his favour within 15 days from the date of receipt of this notice or else my client will most reluctantly to constrained to take legal action against you in the matter as he may be adt ised and in such an t shall be liable for all the costs as to consequnces which pleast 30 part of contract, and called upon the defendants to execute the sale deed, In the said notice plaintiff did not make any demand of income tax clearance certificate or did not say that the defendants have delayed the ex cution of the sale deed, on account of their inter se dispute. In turn, he called upon the defendants to execute the sale deed in 15 years by receiving balance of sale consideration. Thus, from this notice it is clear that the plaintiff was not waiting for the income tax clearance, for the execution of the sale deed in his favour, He had not called upon the defendants to perform any part of the contract or had informed the defendants that there was failure on their part to secure the income tax clearance He was aware that even without the income tax clearance certificate, he could get the sale deed in his favour Further as on the date of issue of Fx P23 there ws no inter se dispute between the v ndors 4 though the agreement stipulates the plaintiff to get he ak d x euted a ais ft ott on r belor 30 C C eo a imlnt Ia he a or na I I i p after the tue late ind r he igreeme a hut t n the tat of x hL p i hac -tIe Ic I (I ( C 31 any condition or requirement of income tax clearance nor subject to performing any obligation on the part of the vendors.
55. It is not In dispute that, the plaintiff had not chosen to take any legal steps thereafter even though defendants did not execute the sale deed. In turn, the defendants issued quit notice dated 21.4.1999 terminating tenancy of the plaintiff as per Ex.P.22. In Ex.P.22 dedfendant- 1 and Balram -- husband of defendant-2, had Issued notice claiming ihat under the family arrangement they have become full and absolute owners of the suit property In occupation of the plaintiff and since the existing building thereon is very old and dilapidated, they require immediate restoration of possession for demolition and to put up a new building for their own purpose. The relevant portion of the said notice reads as under:
'You had entered into an agreement to purchase the property under a written agreement dated 6.1.1995 and you were proposed to complete the sale transaction on or before 30th June 1995. You have failed to perform your part of contract and your right to claim sale deed In tenns of the said agreement Is extinguished by the lapse of time. Your are liable to pay damages to my clients for breach of contract."
56. The above notice not only terminates the tenancy of the plaintiff but Informs the plaintiff that under the agreement 32 dated 6.1.1995. the sale transaction ought to have been completed on or before 30.6.1995 and since the plaintiff has failed to perform his -- of contract, he has no right to claim the execution of sale deed in terms of the said agreement. plaintiffs rights got extinguished by lapse of time and further informs that the plaintiff is liable to pay damages to them.
57. From the above two undisputed notices, there remains no doubt that the plaintiff was not insisting on the income tax clearance as he had not even made a demand in his notice Ex.P.23 dated 30.5.1997. Further the vendors, viz., defendant-i and husband of defendant-2 Balram. who claim that they have become the absolute owners in the family arrangement had informed the plaintiff that plaintiff Is not entitled for specific performance of the contract. The plaintiff not only was aware that the defendants have refused to execute the sale deed, but the defendants had also made their stand clear in their notice dated 21.4.1999 that the agreement to sell Is extinguished by lapse of time. Even after receipt of notice at Ex.22 from the defendants, the plaintiff had not taken any steps to perform his part of contract.
58. His oral assertion in his evidence that the vendors had informed him to wait for the settlement of their internal family dispute, goes contrary to his own documentary evidence produced by him, in turn, the plaintiff has produced single document to show that either on 3O6. 1995 or before expiry of the said date he had made any demand of income tax clearance certificate from the vendors.. In turn, till 1997 he had not even issued notice and even after issue of his notice in 1997 he did not chose to take any steps to enforce the contract. It is the defendants who issued notice informing that the agreement to sell stood extinguished by lapse of time.
59. Even though, there is no serious challenge to the oral assertion of plaintiff that the defendants asked him to wait till the internal family dispute is settled, however, his own conduct and the do cumentarv evidence does contra.rv to his oral evidence, The burden is on the plaintiff to plead and prove that he is always ready a.nd willing to perfOrm, his p art of contract, Under Section 1. Specific Relief Act. plaint itt is not oni to plead. hut has to prove that he has perlhrmed or is always ready and wilIi.n I o ner.form the essential, terms of the contract.. Ciau.se 16(c) of the Act. reads as under:
34
"S. 16. Personal bars to relief.-SpeeifIc performance of a contract cam-iol be enforced in favour of a person
(c) who fails to aver and prove that he has perfrrrned or has always been ready and wiilint to perform the essential terms of the contract which are to be pcrfonned 1 him.
other than terms the performance of which has been prevented or waived i,y the defen dan I."
60. Under the terms of the agreement Ex.P. 10, plaintiff was required to get the sale deed executed on or before :30.6. 1995. However, the learned Counsel for the piairitiff had submitted that as per Ex.P. 18, the defendants had received Rs.30,000/ on 28.8.1995, i.e. after the stipulated time.
61. Assuming that the defendants did not treat the time of completion of the sale deed on or before 30.6. 1995 is essential. but the pla.intiff has relied on the terms of the contract that the income- tax certilleate was essential to penihrm his part of con i'act. flie areenw.nt contains the words "if_there be need of icte". From the pleadings and evidence of the plaintiff him.scil. • s clear that. plaintiff himself did not treat tJa the income tax clearance certificate is essential f him to perform
-
his nart m contract., which is clear from Exhibns P23 and P2.2. Now to -say that there was a need of income tax. clearance ri2ff certificate, the plaintill being purchaser is required to show that he has performed or is always ready and willing to perform his part of contract Further. 11w terms ol the atreement itself stipulate that lfl the event of thc vendor S lailu re to do c, the plaintili has right to approath th ( ourt to seek enfoi cement of the contract.
62. As per the terms of the agreement plaintiff should either demand income tax clearance certificate or in case there is failure, he had right to go to the Court to enforce the contract and demand execution of the sale deed. The evideiice of the plaintiff shows that, no such certificate was necessary, as in Exhibi1P 23 he did riot demand or made the inconie tax clearance certificate is inandator or tile deteiidanis have failed to ohtain the same. The oral assertion of the plaintiff is not supported h ir v dt n e ir his d x uin r t i 1 It x C ocs ontrti t his c al assc non, Adruitti liv, plaintiff is in (111 iipSi[OF1 01 -Ui7 P1('li'i js T&f5flj fl 0 Tflflr1i'jll r-'ii )f Fr (00 1 in iii F F 1 i t il Pt1P S I ti s I it lv t ) 1 i1I itq C n nt under Sec230A. was adnniedl deleled with effect from 1 6 2001 and it is not in dispute that after L62001 there was no impediment br the plaint ill to get the sale deed registered. [--Ioivvcr the plaintiff did not isut' an notice to the defendants c-tiliii upon them lo execute (Ite 'ale deed. In turn the present suit is tiled after more than 4 years after deletion of the said provision This conduct of the plaintiff also proves that he never shown any interest in getting the sale deed in his favour,
64. Further except the oral assertion in the pleading and the evidence in reality plaintiff has not shown his readiness at any time till tiling ol suit. Ready and willingness has to he jiided from conduct of the party, as to how he conducted himself from the (late 01 areerneiit to the exe ut ion of the decree Fi oin the above ircunislanes, it prox Cs beyond doubt tha the laint ill was r cr Cr fl ady in I ii illir g o p norm hi pai of h contrac IN it ps 5K t ftc was nj yi1l he i at prupcrn. on nn'a- i rw niil' na e thuiiHhl hat it an an ira sa n 0: irr h ça n ' thr or' -em-o e 1 [Th ft nr I I thc i tint r i it sh I ulatc t ii I intl I H Id '11 cat H -
I ii I I or -t -t 37 cannot be said that the iilainliff can seek specific performance of the contract at any time thereafter he wants.
65 In tenti' of the contract, the defendants never treated the requirement ni income tax elearance as esence ol the contract as the tenns of the contract states 'if any' I nder the terms of the contract, even If there Is failure on (he part of the defendants to secure the said certificate, plaintiff had the right to sue for specific performance of the contract
66. As far as the penclency of (lie stilt in O.S. 133/1999 amongst the defendants is concerned, even assuming that the suit was pending amongst vendors. 11w defendants In the said suit are Mr.Balram since deceased bi Rohini defendant no.2 Shidhu defcndnat. 3 and I-Ianumanth defendant- 1. It Is not in lispute that thcv are dx signatories to th igiec-mc nt and they are all the vtndur' ol the pluutills When the aglecinent is 3ignLd lv ill lit lckndants and iAh'e sut wi cndng the 'aid pcnflet s viouitl not na' r- i1 . 't te.1 the planitiif" nhng sui 1 1 I.ai t. 1 i ' ' C Ut It .tiLer t dl'pi.tt n.a I ii' ed t as ill vi ri,er i had •'i2Iit't Ha It r C, 1 d"tf!TLz I ,fl.' , fl". ;• gg.J I, ii b'3LIL.I' 't ' .! •_.
'i--
disposal of the said suit much less, when defendants had not informed the plaintiff to wail fbi the disposal of the suit, In turn, in 1 999 itself a" per Exhibit R22 11w drleiidant No. 1 had informed the plaintiff ihat hi rights under the agreement stood xtinguished Defemlants had issued notice treatmg the agreement stood cancelled. The plaintiffs conduct from the date of the agreement till the execution of the sale deed jc relevant and the circumstance as regards is how the plaintiff performed himsell in respect of the contract,
67. The apex Court in the judgment reported in AIR 1999 S.C. 3029 in the matter of Syed Dastagir vs. T,R. Gopalakrishna Setty. has held that the language under See 1(5(c) does not require any specific phraseohv but only that he plaint 1ff nnisi aver that he has pertorrned or ha c always becI I ml \ llint tc eiforin iU pan f ntrat S omphr nec f r adiness arid u iIImries', uias k x' in spirit ant suibst r C( n I nnt n h t1( 1 anJ ha !fl rnr a pItav 1)1 i1C flIlJl( I i1{ of Ira p a n1 III 1 1 ii I a1! 1!)h' II R '1( I fl any step% by approaching the vendot s to execute the sale deed, mere allegation that he was ready and willing to perform his part 01 the contract, would not be sufficient to hold that he was ready and willing or was alwav ready and willing to perfonu his part of contract Plaintiff has to pioie that he has means from the date ot contract till the dale suit is filed and his readiness and willingness to perform the ron(ract muct be from the date of agreement till the hearing of the stilt is necessary It is not just for completion of the fonnality of the pleadingc. provision of Sec. 16(c) be extrac ted and in the same format oral assertion in the evidence would be sufficient. The readiness and willingness c annot be inferred merely on the ground that the oral assertion of the plainiiff is not seriously challenged by the defendants in the rross-cxaniination. that ill not absolve the plaintiff from ro mg lii' r eadk ecs mci willmgness. Readinest an 1 willingness to perform hi'. jian cf contract i' t the requnemeni ol la ilut qurci t rwdbylm' oriic ntoly Tb bum c 4 iil,se
-nt .t it) thc proc eetilnt% al--n Wham i' lta iicni the d s tat ynmtmtl jim 1.1 i,iohc cmd t, 'hig;tg * ii'- onluct iha lit "a it dv ml vilfluf , for n •• l •i ' .iait)'.t 'Ii ii 4. ._Iii.I_rii ni li 0 tttl ! Ic dl ii 3 j 1 mc L 40 not prove his readiness and willingness. No doubt. he need not deposit the amount nor produce cash. But his capacity to pay has to be proved 69 In this cast ihere is no evideme as to whether he has eapacit\ to pa' the balance ot sale corisideratioii at any time from the date ol the agreenwnt till the decree or execution of sale deed. \Villingncss is a mental attitude of the plaintiff as to how he performed himself all throughout from the date of the agreement. Events narrated above disclose that even after notice issued by him in I 997. the plaintiff took no action to enforce the agreement. Even after the defendants issued notice in 1999 statin.i the agreemeni stood cancelled, the plaintiff did not take an a tion 70 In 1999 tth ck teridants tel minate hi enany & 'n tileri no i-n tIOl] wa taken by tin- plaintili liii 2005. Then-' has )cer 6 olu ci x a Ii r tii th part I the j 1 4Inhltf, 1 0 ari- iI')0LIi 01( ]ainti1t ki -n that tht chl41ldn' a 1e u ( ii p1 innl ai a r ii ei cnn nt Ih icirraLti L ea (t-ll 0 In ard nn Liii the V !, '; , IL' 4' evidence does not prove the ease of the plaintiff of his readiness and wil1intness. Plaintiff has utierlv failed to prove the same.
71. The judments relied upon by the learned Counsel for the piaintifl that. ac eplanm ol payrneiiI alter stipulated period anioulits to waiver of Unie as essence ol the contract. Even assuming that the time js not the essence of the contract, that will not absolve the plaintiff from proving lii.s readiness and willingness to perform his part of contract
72. The judgment of this court reported in AIR 2001 KAR.442 in the matter of H.M. Krishna Reddy vs. H.C.Narayana Reddy, which was relied upon by the learned Counsel for the plaintiff to show that the time is not essence of the contract, As regards the ban of selling ol the property undei the prox isions of the K'irnataka Prc\ ention of F ragmeritation and Holdings A-1 i96(, Ii wa a when time wa' SOii.W1i 0) be ieatcd as ft time i not ss flC( Cf out a ts ther a I orotnhjtinn iht sair. IN ill saiH t*tce thjs ('01 irt h-rI th,o p tnt t at w JM sr In 3b( 'at no r iid a' r\ 'Nt. \ [H( Ii t s NI a ii i( ( pt pc iL\ i 11 I ii' r' r. i - ii n to the facts and circumstances of this ease, as the J)larntitf himself di(l not (real that the income IX clearance certificate was an essential term of contract. What is requited to he performed is the essential terms ol the contract. Even otherwise also after deletion of provtsion of Section 230A, for four years the plaintiff had kept quite and only in 2005 he files the suit. As such the judgment relied by the learned counsel for time plaintiff is of no assistance.
73. Learned Counsel for the plaintiff has also relie(l on the unreported judgment of this Court in RFA.440/99 disposed of on 7.6.2010 to support his contention thai. the time is not the esseme of contract However each case is de(ided on th facts and circumstances of that case and iii the said case there was an endorsenen I subseq uentlv on ti ie sale agreemnel it ct ending th tin ['ndcr If e tac t md reunishin es o he ase it mtas held that lililU uas cot -siu Of utrat 71 It in lout 'in it in rcer n s 11 ot ;rcnuablc a t c rnoilv Tin s n sc-rn f c aura' I iTOlfl U, c i lot d ' Ic i ii ci was ready and willing. Even otherwise also plaintiff was not entitled br the decree.
75. Section 53 of the Limitatioti Act is alxvavs dcpendant oii the terms ol omra t If the term of grecrnenl requn e ertain things to happen within a specified time limitation starts to run from the date of such happening. I'hnugh the decision reported in AIR 1991 KAR. 1 19, K. Venkoji Rao vs. M. Abdul Khuddur Kureshi, has been relied bitt it is of no assistance under the facts and circumstances of the case.
76 Tn the decision relied of apex Court in (2011) 1 SCC 429, in the matter of JP. Builders and another vs A. Ramdas Rao and another, no doubt the apex Court has held that readiness and willingness cannot be treated ts straitjacket formula and has ft he dtcimined frm entiict f factc rnd in' in1sai1ceN rclcx ant I a 1flPfltiOfl aiJ oclactOl tue pdrt\ nie- tlii piai tifl had huwn thai thet c is lailurr on tht- part 01 1 he Ji nd nt )erlol m (nflal i t un ontra n In i 1a 1 n 11 hi tenp I hc on t I dl fl ( Jp--J Td l)jji J ( Ct a ILR 2003 KAR 3,33 T Moha vs Kannamma md another t n 44 that, the question of readiness and willingness to pay balance of consideration Is not of much Importance. Actual possession of the property has been parted with by the vendor In favour of the third party purehaer even before the expirv ol tlic stipulated period m the agreement I. nder the 'aid tircumstances this Court has held that the readiness and willingnesW los es Its signilleanre In the said case. vendor even before the stipulated time under the agreement had sold the property to third party. The question of plaintiff being asked to prove his readiness and willingness did not arise. This ease Ic not similar to the said ease. In this case, plaintiff is in possession and enjoyment of the suit schedule property and may be. he bemg tin beneficiary of possession oii meager rent is reluctant to get thc sale deed in his favour by paying the balance of sale consideration 78 II' iac alsc dad or mzthc kcisior I the pcx Court rei uted in AIR 2008 SL.1205, in the matter of Balasaheb Day-andeo Nath vs. Appasaheb Dattatraya Pawn, tIc ciii c ipcv .
' held cit (f f luc i
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i
i e : •-'ir. ' Ir 'iii ' tnt I tI 't a t- t• t'
I it if t '1
45
part of the contract and whether there was failure on the part of the defendants to perform their part of the contract.
79. Learned Counsel also relied on the judgment reported in AIR 1999 S.C 1341 in the case of Iswar Bhai C, Patel vs. Harihar Behera, to show that adverse inference should have been drawn against the defendants for not entering into the witness box.
80. The initial burden being on the plaintiff to prove the existence of agreement. to prove that he was always ready and willing to perform his part of contract, the burden does not shift on to the defendants to prove to the contrary. unless the evidence led by the plaintiff proves that he was ready and willing to perlhrm his part of contract. the burden does not shift to the defendants, Plaintiff is required to prove that there is valid enforceab.le contract between hi.rnself and the defendants and there is breach of contract by the delbndant s. From his evidence. it is clear that the evidence is insutficien to hold that the plaintiff was .eady and willing to perform his part of contract.., Even i..n the .absence of defendants ent.erin i.i ito the witness bnx. plaintiff wiJi nnt Ps entitled decree for sjpjfic ( 46 performance of contract, unless he prove the necessary requirement in law.
81. The trial Court being original court. In a casual manner only on the ground that certificate under Section 230A was not obtained by the defendant holds that, the plaintiff was ready and willing to perform his part of the contract de-hors the provisions of Section 16(c). de-hors the requirements of pleadings and proof. As such, In my opinion, finding of the Thai Court on this issue is not supported by any evidence much less any valid reasons and the same is liable to be set aside.
82. For the above reasons, I hold that the plaintiff is not entitled for decree for specific performance of the contract having failed to prove his readiness and willingness. Accordingly, I hold the first point in favour of the defendants.
83. I hold the second point as to the suit is barred by time. that the suit is barred by law. The cause of action accrued to the plaintiff on the date on which he himself issued legal notice In 1997 as per Ex.P.23 calling upon the defendants to execute the sale deed within 15 days and suit is filed after eight years from the said notice. According to plaintiff himself, the 47 cause of action accrued to him In 1997 and suit is ified after eight veare, thereafter Hence, the suit is barred by time.
84 In view of the above answers to poInts 1 and 2, the plaintiff is not entitled Ior decree for spc C ific perlormanc c of the contract 85 Defendant no 1 party In person during the course of argument submitted that he is willing to refund the earnest money with Interest In viei oi bib submission the Plaintiff is entitled for refund 01 earnest money with interest as awarded by the trial Court.
In view of the above findings RFA 3014/2009 ified by the plaintiff stands dismissed Cr' by tim 0 2010 tanl' l1cci I rM