Madras High Court
Paquirisamy Pillai (Deceased) vs Dr.Louis Prakasam Kannaiya on 12 November, 2010
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12 .11.2010 CORAM: THE HONOURABLE Ms. JUSTICE R. MALA S.A.No.235 of 2005 1 Paquirisamy Pillai (deceased) 2 P.Nappeena 3 P.Arokiavelu 4 P.Arokiaraja (Appellants 2 to 4 brought on record as LRs. of the deceased first appellant Vide Order of Court dated 29.6.2007 in CMP.No.1342 of 2007) .. Appellants Vs Dr.Louis Prakasam Kannaiya .. Respondent Prayer: Second appeal under Section 100 of CPC has been filed against the Judgment and Decree of the Principal District Judge, Pondicherry dated 29.12.2004 passed in A.S.No.35 of 2004 confirming the Judgment and decree of the Additional Subordinate Judge, Pondicherry dated 08.04.2004 in O.S.No.96 of 2002. For Appellants : Mr.R.Gandhi, Senior counsel for Mr.R.G.Narendiran For Respondent : Mr.P.S.Raman, Senior counsel for Mr.C.Sethupathy ***** JUDGMENT
This second appeal arises against the decree and judgment of the Principal District Judge, Pondicherry dated 29.12.2004 passed in A.S.No.35 of 2004 confirming the Judgment and decree of the Additional Subordinate Judge, Pondicherry dated 08.04.2004 in O.S.No.96 of 2002.
2 The averments made in the plaint are as follows:-
On 22.05.1978 the defendant entered into a sale agreement with the plaintiff in respect of the suit property for a sum of Rs.25,000/- and an advance amount of Rs.5000/- was paid. As per the sale agreement, it was agreed that the litigation was pending in respect of the suit property and if the defendant succeeds in the suit and becomes absolute owner of the same, he would execute the sale deed in favour of the plaintiff receive the balance sale consideration within a period of three months from the date when the defendant becomes the absolute owner. The plaintiff was a tenant in respect of the suit property and he was paying a rent of Rs.720/- per month, of which, he was paying 5/12 share in the rent to each of the defendant and his brother and 2/12 share to the sister Ratna Mary. In pursuance of the agreement, the plaintiff was paying rent for the suit property only to the defendant's brother Louis Sinnaya Arkiasamy and his sister Ratna Mary in respect of their respective shares from the date of the impugned sale agreement. But he did not pay the share of rent due to the defendant since then. The defendant filed HRCOP No.63 of 1996 which was dismissed against which he preferred M.A.No.27 of 1997 which was also dismissed confirming the trial Court's order. The defendant sent a notice informing that he has become absolute owner of the suit property in terms of the release deed dated 30.11.2001 executed by his elder brother and legal heirs of his sister Ratna Mary. Since the defendant gave a evasive reply and refused to execute sale deed, the plaintiff was constrained to file the above suit for specific performance.
3 The gist and essence of written statement filed by the defendants are as follows:-
The suit is barred by limitation. Since the plaintiff kept quiet all along 24 years, the suit is not maintainable. The case has been compromised and compromise decree passed on 22.05.1978 in O.S.No.1 of 1978 which is referred to in the alleged agreement of sale dated 22.05.1978. The agreement is uncertain, infinite and is speculative and it cannot be enforceable. As per the terms of the decree in O.S.No.1 of 1978, no co-owner can enter into any agreement to sell or create any encumbrance over the property without the knowledge and consent, participation and permission of the other two co-owners. At the time of execution of the sale agreement, the defendant is not an exclusive owner of the property. The plaintiff as a tenant stopped paying rent to the defendant from 22.05.1978. However, he paid rent to his elder brother and L.Rs. of his elder sister (deceased) till 01.12.2001. On 30.11.2001, the defendant's elder brother and legal heirs of the deceased elder sister executed release deed in respect of the suit property. Since the plaintiff has not paid rent to the defendant, he filed HRCOP No.23 of 2002 on the ground of wilful default and personal occupation which was dismissed. The sale agreement is sham and nominal. At the time when the agreement was created, the defendant was a medical college student with no means to support himself. All his properties were at that time seized, sealed and attached by the income tax authorities on 01.03.1978 in the course of a raid conducted in his house. The plaintiff was working as part-time accountant and bill collector in the evening hours under the defendant at the time of creation of the alleged agreement. The plaintiff who was aware of the critical financial condition of the defendant after the income tax raid, gave loan of Rs.5000/-in the month of May 1978 and taking undue advantage of the critical financial condition of the defendant, the plaintiff created the alleged agreement. The agreement of sale is in fact usufructuary loan agreement under which the plaintiff stopped paying rent for the suit property wherein the plaintiff is a tenant under the defendant and there was no interest for the loan amount of Rs.5000/-. The defendant is ready to deposit loan amount into Court deposit. The plaintiff cannot be permitted to make an unjust enrichment since the present value of the property is more than Rs.50 lakhs. However, the plaintiff is now seeking specific performance of the property by void agreement for a paltry sum of Rs.20,000/-. Hence he prayed for dismissal of the suit.
4 The trial court after considering the averments both in the plaint and written statement framed necessary issues and on considering the oral and documentary evidence on both sides dismissed the suit. Aggrieved by the decree and judgment of the trial court, the plaintiff preferred an appeal before the first Appellate court. The first Appellate Judge after considering the arguments advanced by both sides, framed necessary points for consideration dismissed the appeal and confirmed the judgment and decree of the trial Court. Against which the present appeal has been preferred by the plaintiff.
5 At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:
(i) Whether the Courts below right in dismissing the suit for specific performance in total ignorance of the well settled principle of law that in a contract to immovable property time is not the essence of the contract ?
(ii) Whether the Courts below is wrong in not applying the section 10 of the Specific Relief Act particularly when the appellant/plaintiff has filed the suit within the limitation period ?
(iii) Whether the Courts below is wrong in not granting the relief as prayed for by applying the section 20 of the Specific Relief Act, 1963, which says the jurisdiction to decree specific performance is discretionary ?
6 Substantial Questions of law 1 to 3:
The learned Senior Counsel appearing for the appellants submitted that the deceased first plaintiff/first appellant herein was working as a part time Accountant and as a bill collector during the evening hours under the defendant/ respondent. The suit property originally belonged to the defendant/ respondent, his brother and his sister. One Ratna Mary, sister of the defendant/respondent has filed a suit in O.S.No.1 of 1978 for partition and during the pendency of the suit, the defendant/ respondent herein has agreed to sell the property for Rs.25,000/- and he received an advance of Rs.5000/-. The condition is that when the defendant/ respondent becomes the absolute owner of the suit property, the sale deed will be executed within three months. But in the suit for specific performance, time is not essence of the contract. Both the Courts below have not considered this aspect in proper perspective. The defendant/respondent has become owner of the property from 30.11.2001 and after that he refused to execute the sale deed. Hence he filed a suit within three years from the date of refusal to execute the sale deed. The limitation starts only from the date of refusal to execute sale deed. The trial Court and the first appellate Court have not considered the facts in proper perspective and came to the conclusion that the suit is barred by limitation and dismissed the suit. The learned counsel appearing for the plaintiff/appellant herein would submit that time is not essence of the contract. Time for filing a suit is arisen only when the plaintiff having the knowledge of refusal to perform the contract. Only in the year 2001, the defendant refused to execute sale deed and he filed the suit within three years. Hence, he is entitled to discretionary relief of decree of specific performance. He further submits that as per Sec.10 and 20 of the Specific Relief Act, he is entitled to discretionary relief of specific performance. He further submitted that even though it is a concurrent finding, both the Courts below ignored material evidence, hence this court has every right to interfere with the perverse judgment by re-appreciating the evidence and set aside the decree and judgment passed by both the Courts below. To substantiate his arguments, the learned counsel appearing for the plaintiff/appellant relied upon the following judgments:
1 (1996)8 SCC 365 (D.S.Thimmappa Vs Siddaramakka) 2 A.I.R. 2001 KAR 442 (H.M.Krishna Reddy Vs. Narayana Reddy)
7 Per contra, the learned counsel appearing for the defendant/respondent herein would submit that not only the suit is barred by limitation but also the agreement is uncertain, inifinite and unenforceable. The plaintiff/appellant herein is not entitled to equitable relief of specific performance. Both the Courts below have considered the limitation aspect as well as Sec.20 of Specific Relief Act and came to the conclusion that the plaintiff/appellant is not entitled to any relief. A perusal of Ex.A1 would show that it is uncertain, no consensus ad idem has been arrived between both the parties. As per the defence raised by the defendant/respondent, it is only a loan agreement. The suit mentioned in Ex.A1 was disposed on 26.4.1979. But the plaintiff/appellant has not taken any steps to get the sale deed executed. While he was a tenant under the defendant's/respondent's father, the defendant/respondent was a medical college student and he was working as a part-time Accountant and bill collector. In view of income tax raid conducted in the plaintiff/appellant herein, the plaintiff/appellant faced financial crisis and he borrowed Rs.5000/- from the defendant/respondent to execute the sale agreement. It is only an usufructuary mortgage. No rent has been paid to the defendant/respondent. However, the plaintiff/appellant has paid proportionate rent to the other co-owners of the property, i.e. elder brother and elder sister of the defendant/respondent. Hence the plaintiff/appellant herein has filed the suit after 23years even without paying single pai as rent to the defendant/respondent. Though the plaintiff/appellant herein has filed R.C.O.P. No.63 of 1996 in the year 1996, he has not filed a suit for specific performance. So all the facts have been considered by both the Courts below and came to the correct conclusion. The first appellate Court is a last fact finding Court. The first appellate Court considered both oral and documentary evidence and came to the correct conclusion. There is no reason to interfere with the concurrent finding of both the Courts below. Hence he prayed for dismissal of the appeal. He further submits that the agreement is only champertuous. It is not executed out of own freewill. He further submitted that plaintiff/appellant herein not always ready and willing to perform his part of the contract. Considering the raise in price, the value of the property is more than Rs.50 lakhs. Now, the defendant/respondent wants to purchase the property for a sale consideration of Rs.25,000/- only. He already deposited Rs.5000/- as per the direction of the Court. Hence he prayed for dismissal of the appeal. To substantiate his arguments, he relied upon the following judgments:
1 A.I.R. 1996 SC 2095 (His Holiness Acharya Swami Ganesh Dassji Vs. Shri Sita Ram Thapar) 2 (1990)3 S.C.C. 1 (Mayawanti Vs Kaushalya Devi) 3 (1997)3 S.C.C. 1 (K.S.Vidyanadam and others)
8 Considering the rival submissions of either side, this Court has to decide whether the plaintiff/appellant is entitled to decree for specific performance ?.
9 The execution of Ex.A1 sale agreement is disputed by the defendant/respondent herein. The defendant/respondent herein has stated that because of the financial crisis, he borrowed a sum of Rs.5000/- from the plaintiff/appellant herein who is a tenant under his father and the defendant/respondent was a Medical College student and the plaintiff/appellant was working as part time Accountant at the time of execution of Ex.A1 sale agreement. So there is no "consensus-ad-idem" and the sale agreement is not valid and binding the defendant/respondent herein. He further submits that there is ambiguity in the document. As per the agreement Ex.A-1, he paid Rs.5000/- as an advance and sale consideration has been fixed at Rs.25,000/-. From the date of Ex.A1 onwards, the plaintiff/appellant has not paid proportionate rent to this respondent/defendant. However, he paid proportionate rent to his elder brother and elder sister. At the time of execution of Ex.A1, the suit in O.S.No.1 of 1978 filed by the defendant's/respondent's sister Ratna Mary for partition in respect of the estate of the defendant's/ respondent's father was pending. Plaint in the above suit was marked as Ex.B6. Compromise decree was marked as Ex.B7. Judgment was marked as Ex.B8. At the time of execution of Ex.A1 sale agreement, he was aged 23 years, medical college student. He filed Birth certificate of the defendant/ respondent herein, which was marked as Ex.B1. He finished M.B.B.S degree Course during the year December 1979. The certified copy of degree of Bachelor of Medicine was marked as Ex.B3. The certificate issued by JIPMER hospital for compulsory Rotatory Internship was marked as Ex.B4. At the time of execution of Ex.A1, he was a medical college student. It is pertinent to note that as per Ex.B7 the suit in O.S.No.1 of 1978 was compromised on 26.04.1979. In pursuance of the compromise, judgment was passed on 26.04.1979. But the plaintiff/ appellant has not filed a suit within three months. At this juncture, it is appropriate to consider the arguments advanced by the learned counsel appearing for the plaintiff/appellant that he received a notice on 12.12.2001 stating that the defendant/respondent has become absolute owner of the property on 13.11.2001. Immediately, he filed a suit on 5.3.2002 within three months. Now, let me consider the terms of the agreement Ex.A1, wherein it was stated as follows:
"fPH; tpthpf;Fk; brhj;jpd; rk;ke;jkhf nfhh;l;oy; jhth ,Ug;ghy; 3?MtJ egUf;F rhjfkhf jhth Koe;j njjpapypUe;J K:d;W khj bfLt[f;Fs; fPH; tpthpf;Fk; KG tPl;ila[k; 1-MtJ egh; mth; ghfj;jpw;F vLj;Jf; bfhz;L 2-MtJ egh; gf;fphprhkp gps;isf;F fpuak; bra;J bfhLj;J tpl;L kPjp ngha; U:/20,000/- (U:gha; ,UgJ Mapuk;) 2-MtJ eghplkpUe;J 1-MtJ egh; bgw;Wf; bfhs;s rk;kjpf;fpwhh;/ fPH; tptupf;Fk; brhj;jpd; rk;ke;jkhf 1-MtJ egUf;F nfhh;l; jPh;g;ghy; 2-MtJ 2-MtJ egUf;F bra;J bfhLf;f ,ayhky; nghFk;gl;rj;jpy; 1-MtJ egh; ,d;W njjp Kjy; mr;rhukhf bgw;Wf; bfhz;l U:gha; 5,000/- (U:gha; Iahapuk; kl;Lk;) 2-MtJ egh; trk; igry; bra;a rk;kjpf;fpwhh;/"
Therefore, in Ex.A1, it was clearly mentioned that if the defendant/ respondent succeeded in the suit, he would become the absolute owner of his share of the property and sale deed will be executed within three months from the date of disposal of the suit and accept to receive the balance sale consideration of Rs.20,000/-. At this juncture, it is appropriate to consider the compromise decree Ex.B7. In compromise decree, 24 items were given in schedule A, B and C. The other properties buildings, land in and around Pondicherry is treated as common. Suit property was treated as common property. As per the arguments advanced by the learned counsel appearing for the defendant/respondent, it was specifically mentioned that after disposal of the suit in favour of the defendant/ respondent, he would get the property and he is liable to execute sale deed within three months. But as per Ex.B7 and B8 he has got only the share of the suit property was kept as common estate for all the three heirs. In such circumstances, it is relevant to consider the recital in Ex.A1.
"fPH; tptupf;Fk; brhj;jpd; rk;ke;jkhf 1-MtJ egUf;F nfhh;l; jPh;g;ghy; 2-MtJ 2-MtJ egUf;F bra;J bfhLf;f ,ayhky; nghFk;gl;rj;jpy; 1-MtJ egh; ,d;W njjp Kjy; mr;rhukhf bgw;Wf; bfhz;l U:gha; 5,000/- (U:gha; Iahapuk; kl;Lk;) 2-MtJ egh; trk; igry; bra;a rk;kjpf;fpwhh;/"
Hence, the plaintiff/appellant is entitled to refund of the amount paid as an advance.
10 It is appropriate to consider the decision reported in (1990)3 SCC 1 (cited supra), wherein, the Hon'ble Supreme Court has held as follows:
"The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The acceptance must be absolute, and must correspond with the terms of the offer. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the court has to determine at what point, if at all, the parties have reached agreement. Negotiations therein would also be material if the agreement is rescinded."
So, I am of the opinion that no "consensus-ad-idem" has been arrived at.
11 It is pertinent to note that after disposal of the suit in the year 1979, since the plaintiff/appellant herein has not paid rent, the defendant/respondent has filed HRCOP No. 63 of 1996 which was dismissed on 13.9.1997, against which, he preferred an appeal in M.A.No.27 of 1997, which was also dismissed on 17.12.1998 which was evidenced by Ex.A3. Even then, the plaintiff/ appellant herein has not filed a suit for specific performance. In such circumstances, the conduct of the plaintiff/appellant herein clearly proved that there is no "consensus-ad-idem". Ex.A-1 is only champerty agreement.
12 Admittedly, on 12.12.2001, the defendant/respondent herein has issued notice under Ex.A4. In para 4 of Ex.A4, he has stated that he is the absolute owner of the property with effect from 30.11.2001. The plaintiff/appellant herein gave reply under Ex.A5 on 27.12.2001. The plaintiff/appellant herein issued rejoinder under Ex.A7 on 22.01.2002. Reply to rejoinder was sent by this plaintiff/appellant herein on 03.02.2002 under Ex.A6. Then only, he filed a suit for specific performance on 5.3.2002. It is also pertinent to note that before filing H.R.C.O.P. No.63 of 1996 the defendant/appellant herein has issued notice Ex.A8 demanding arrears of rent. But there was no reply from the plaintiff/appellant. Even after the litigation under H.R.C.O.P. No.63 of 1996 and an appeal in M.A.No.27 of 1997, the plaintiff/ appellant herein has not come to the Court and seek the relief of specific performance and protection under Sec.53A of the Transfer of Property Act. So from the date of Ex.A-1, i.e. 22.05.1978 onwards, the plaintiff/appellant herein kept quiet till 5.3.2002. As per the decision relied upon by the learned counsel appearing for the defendant/respondent, reported in A.I.R. 1996 SC 2095 (cited supra), the agreement holder must always be ready and willing to perform his part of the contract. Ex.A-1 sale agreement is dated 22.05.1978. O.S.No.1 of 1978 was disposed on 27.4.1979, but he filed a suit for specific performance only on 5.3.2002. There is an enormous delay in approaching the Court. In H.R.C.O.P.No.63 of 1996, though the plaintiff/appellant pleaded sale agreement and also protection under Sec.53A of the Transfer of Property Act, he has not filed a suit for specific performance within the prescribed time.
13 At this juncture, the learned counsel appearing for the plaintiff/appellant relied upon the decision reported in 1996(8) SCC 365 (cited supra) wherein the Hon'ble Supreme Court has held as follows:
"6 It is settled law that unless the deed of agreement of sale stipulated a date for performance, time is not always of the essence of the contract.' Here, in Ex.A1, it was stated that after the suit was ended in favour of the defendant/respondent and he became absolute owner of the property, the defendant/respondent will execute the sale deed within three months. The learned counsel appearing for the plaintiff/ appellant would submit that as per Art.54 of Limitation Act, limitation for specific performance starts from the date fixed in the contract or from the date of refusal to execute the sale deed. The plaintiff/appellant herein kept quiet all along till 2002 even after the compromise decree was passed on 27.4.1979 and even though the defendant/ respondent herein has filed R.C.O.P. No.63 of 1996 for eviction against the plaintiff/appellant herein. Therefore, the above citation (1996 SC 2089 (cited supra)) is not applicable to the facts of the present case.
14 He also relied upon the decision reported in A.I.R. 2001 Karnataka 441 (cited supra) wherein the Karnataka High Court has held that "time for filing suit for specific performance begins to run only when the vendee had knowledge of vendor's refused to perform." The Karnataka High Court further held as follows:
"20. The parties at the time of entering into the "Agreement of Sale" must contemplate a future event, which must be certain to happen. In other words, when they want to "Fix the date of performance" in the Agreement of sale" without reference to a "Calender date", the agreement must mention the nature and description of future event, which according to the knowledge of the parties or "Common knowledge" is CERTAIN TO HAPPEN". If the 'event' stated in the agreement, according to the knowledge of parties, or according to 'Common Knowledge' is of such a nature, it "May" or May not" happen. Then it cannot be said the parties contemplated a "date" with reference to a "future event" from which event the performance becomes due (As limitation being a Rule of Technicality which has the effect of barring a Remedy) in the mind of the parties, "fixing the date" for performance of contract. Mere mentioning of any 'Event', which was never contemplated "Certain to happen" cannot have the effect of "fixing a date" for performance."
There is no quarrel over the above proposition. But Ex.A1 is dated 22.5.1978, the suit in O.S.No.1 of 1978 was compromised on 27.4.1979, the plaintiff/appellant herein kept quiet all along 23 years. In such circumstances, the above citations are not applicable to the facts of the present case.
15 The learned counsel appearing for the defendant/ respondent relied upon the judgment reported in (1990)3 SCC 1 (cited supra) submits that "as per Sec.10 of Specific Relief Act, there must be a valid and binding contract between the parties in respect of which party should be consensus ad idem." But here, admittedly, the sale consideration of Rs.25,000/- and an advance of Rs.5000/- paid. As already stated, in Ex.A1, it was clearly mentioned that if the defendant/ respondent succeeded in the suit, he would become the absolute owner of his share of the property and sale deed will be executed within three months from the date of disposal of the suit and accept to receive the balance sale consideration of Rs.20,000/-. Admittedly, the suit was disposed and compromise decree has been passed as per Ex.B8 on 27.04.1979. The suit property was kept in common. It is relevant to consider the recitals in Ex.A1.
"fPH; tptupf;Fk; brhj;jpd; rk;ke;jkhf 1-MtJ egUf;F nfhh;l; jPh;g;ghy; 2-MtJ 2-MtJ egUf;F bra;J bfhLf;f ,ayhky; nghFk;gl;rj;jpy; 1-MtJ egh; ,d;W njjp Kjy; mr;rhukhf bgw;Wf; bfhz;l U:gha; 5,000/- (U:gha; Iahapuk; kl;Lk;) 2-MtJ egh; trk; igry; bra;a rk;kjpf;fpwhh;/"
Hence, the plaintiff/appellant is entitled to refund of the amount paid as an advance. After the disposal of the suit only, he filed H.R.C.O.P.No.63 of 1996 for wilful default and that has been dismissed on 13.9.1997, against which, appeal has been preferred by the defendant/ respondent, which was also dismissed on 17.12.1998. Even then, the plaintiff/appellant has not issued any notice in respect of the sale agreement. So he was not ready and willing to perform his part of the contract. In Ex.A4 dated 12.12.2001 the defendant/ respondent has stated that he is the absolute owner of the property. He sent reply on 27.12.2001 under Ex.A5. The defendant/respondent send rejoinder on 22.01.2002. The plaintiff/appellant herein sent reply under Ex.A6 on 3.2.2006. Then only he filed the above suit for specific performance which shows that the plaintiff/appellant was not always ready and willing to perform his part of the contract.
16 The learned counsel appearing for the plaintiff/ appellant would submit that his right to sue arose only on the date of denial of the execution of sale deed in pursuance of Ex.A1 sale agreement. On receipt of the notice under Ex.A4 dated 12.12.2001, he has filed the suit for specific performance immediately. So he was always ready and willing to perform his part of the contract. But the fact remains that there is a delay of 23 years. Hence, he is not entitled to discretionary relief of specific performance.
17. Learned Senior Counsel appearing for the respondent submitted that the delay is coupled with substantial rise in prices, the plaintiff/appellant kept quiet and come forward with the suit after 23 years. Hence, he is not entitled to decree for specific performance. To substantiate the same, he relied upon the judgment reported in 1997 (3) SCC 1 (cited supra), wherein, the Hon'ble Supreme Court has held as follows:
"12. Shri Sivasubramaniam relied upon the decision of this Court in Mademsetty Satyanarayana V. G.Yellogi Rao, wherein it has been held:
"As Article 113 of the Limitation Act prescribes a period of 3 years from the date fixed thereunder for specific performance of a contract, it follows that mere delay without more extending up to the said period cannot possibly be a reason for a court to exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion, after excluding the cases mentioned in Section 22 of the Specific Relief Act, be confined to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises, for either there will be no subsisting right or there will be a bar against its assertion. So, there must be some discretionary field unoccupied by the three cases, otherwise the substantive section becomes otiose. It is really difficult to define that filed. Diverse situations may arise which may induce a court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a court of appeal." (emphasis supplied)
13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 = years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices. - according to the defendants, three times between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff."
The learned counsel appearing for the defendant/respondent would submit that it is not merely a delay it is the case of total inaction on the part of the plaintiff/appellant herein for nearly 23 years. It is clearly violation of terms of agreement which requires him to pay the balance, purchase of stamp papers and then ask for execution of sale deed within three months. Delay is coupled with substantial rise in prices. At the time of execution of Ex.A1, the value is only Rs.25,000/-. It is Rs.50 lakhs in the year 2002. The delay has brought about the situation where it would be inequitable to give the relief of specific performance to the plaintiff as per the decision rendered by the Hon'ble Supreme Court in 1997(3) SCC 1 (cited supra).
18 The learned counsel appearing for the plaintiff/ appellant would submit that as per Sec.10 of Specific Relief Act, the specific performance of contract is enforceable. However, in the present case, because of the financial crisis, the defendant/respondent borrowed a sum of Rs.5000/- from the plaintiff/appellant herein who is a tenant under the defendant's/ respondent's father and the defendant/ respondent was a Medical College student and the plaintiff/ appellant was working as part time Accountant at the time of execution of Ex.A1. So there is no "consensus-ad-idem" and it is not valid and binding the defendant/respondent herein. The plaintiff/appellant herein was aware of the fact that a suit filed by the sister of the defendant/respondent was pending. In these circumstances, the plaintiff/appellant entered into a sale agreement and paid an advance amount of Rs.5000/-. To show his bonafide, he has not paid the balance amount, even though suit was disposed on 27.4.1979. Admittedly, the plaintiff/appellant has not taken any steps to get the sale deed executed. The defendant/respondent herein filed a petition in H.R.C.O.P. No.63 of 1996 against the plaintiff/appellant for eviction on the ground of wilful default of payment of rent. The plaintiff/appellant has enjoyed the property without paying rent. Admittedly, the plaintiff/appellant herein paid proportionate share of rent to the defendant's/respondent's brother and sister. He has not paid rent to the defendant/ respondent in pursuance of Ex.A1. From 22.05.1978 till today, the plaintiffs/appellants are enjoying the property without paying rent on the basis of agreement. He filed the suit after 23 years, that too after the defendant/respondent issued notice under Ex.A4 which shows that the plaintiff/appellant is not always ready and willing to perform their part of the contract and so, they are not entitled to the discretionary relief of specific performance.
19 Considering the facts and circumstances of the case and conduct of the plaintiff/appellant herein, it is not a fit case where discretionary jurisdiction under Sec.20 of Specific Relief Act should be exercised. Hence the appeal is deserves to be dismissed.
20 In the result,
(i) The Second Appeal is dismissed.
(ii) Judgments and decrees passed by the first appellate Court is hereby confirmed.
(iii) No costs.
At the time of pronouncing this judgment, the learned counsel appearing for the appellants submitted that since this appeal is dismissed, the appellants may be permitted to withdraw the sum of Rs.25,000/- deposited before the trial Court as per order dated 01.07.2005 in C.M.P.No.3212 of 2005.
2 Considering the request made by the learned counsel for the appellants, the appellants are permitted to withdraw the amount already deposited in O.S.No.96 of 2002 on the file of the Additional Subordinate Judge's Court, Pondicherry.
12.11.2010 Index: Yes Internet:Yes vaan To 1 The Principal District Judge, Pondicherry 2 The Additional Subordinate Judge, Pondicherry.
3 The Record Keeper, V.R.Section, High Court, Madras.
R.MALA, J.
vaan Pre-Delivery Judgment in S.A.No.235 of 2005 .11.2010