Madras High Court
Tamilselvi vs Ramasamy ... 1St on 10 June, 2025
2025:MHC:1619
A.S(MD)No.276 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 13.03.2025
Pronounced on : 10.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE P.VADAMALAI
A.S(MD)No.276 of 2022
and
C.M.P(MD)No.12638 of 2022
Tamilselvi ... Appellant/1st Defendant
Vs.
1.Ramasamy ... 1st Respondent/Plaintiff
2.The Sub Registrar,
Kariapatti,
Virudhunagar District. ...2nd Respondent/2nd Defendant
PRAYER :- This Appeal Suit is filed under Section 96 and Order 41 of the Civil
Procedure Code, to call for records relating to the judgment and decree dated
14.10.2022 made in O.S.No.12 of 2020 on the file of the Additional District
Judge, Virudhunagar and set aside the same and allow the first appeal.
For Appellant : Mr.J.Bharathan
for Mr.V.Sasikumar
For R1 : Mr.P.Athimoolapandian
For R2 : Mr.S.Vinodh
Government Advocate
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A.S(MD)No.276 of 2022
JUDGMENT
This Appeal is filed against the judgment and decree, dated 14.10.2022 made in O.S.No.12 of 2020 on the file of the learned Additional District Judge, Virudhunagar.
2. The appellant is the 1st defendant in O.S.No.12 of 2020 on the file of the Additional District Court, Virudhunagar. The 1st respondent is the plaintiff and the 2nd respondent is the 2nd defendant in that suit.
3. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
4. The brief facts are as below:
(a) The case of the plaintiff (1st respondent herein):-
The suit property measuring 10 cents comprising a part out of 2.75 acres in S.No.33/12, Sevalpatti, Kariapatti Registration District, Virudhunagar, belonged to the appellant/1st defendant. The defendant offered to sell the suit property at the rate of Rs.2,06,000/- per cent. The plaintiff agreed for the same. They entered into sale agreement, dated 14.05.2020. The plaintiff paid Rs.5,10,000/- towards advance to the 1st defendant. The sale has to be completed within 45 days by 2/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 paying the balance sale consideration. The 1st defendant agreed to measure the suit property through surveyor, but the 1st defendant has not come forward to measure the suit property. The 1st defendant encroached 7 feet in common pathway and so the plaintiff was ready to complete the sale if the 1st defendant cleares the encroachment by measuring the suit property. The plaintiff asked the 1st defendant to complete the sale on measuring the suit property after receipt of balance sale consideration, till the expiry of agreed period on 29.06.2020. So, the plaintiff issued legal notice, dated 30.06.2020 to the 1st defendant, who sent reply on 03.07.2020 denying the contents of the plaintiff except the agreement of sale.
Hence, the plaintiff filed the suit for specific performance with lodgment schedule for payment of balance sale consideration of Rs.15,51,299/-.
(b) The case of the 1st defendant (appellant herein):-
The sale agreement, dated 14.05.2020 fixing 45 days for completion of sale is admitted. But, the plaintiff did not perform his part of contract within the 45 days. The plaintiff did not come forward to pay the balance sale consideration and to get the sale deed registered. The plaintiff was not ready and willing to complete the sale within the 45 days period, which ended on 29.06.2020.
The plaintiff falsely averred that the 1st defendant agreed to measure the suit property through surveyor, and there is no such clause in the sale agreement.
3/27https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 After expiry of 45 days, the plaintiff issued legal notice dated 30.06.2020 with false averments, which were denied by the 1st defendant by sending reply notice dated 03.07.2020. The plaintiff falsely stated about the alleged encroachment of 7 feet in the common pathway, which is only for the purpose of the suit.
The plaintiff is a realtor, who used to make sale agreement for land with lesser price and used to sell the property with higher price. In this way, the plaintiff delayed the completion of sale. The plaintiff was not ready and willing to perform his part of contract. He filed lodgment schedule along with the suit with false averments. The defendant approached the plaintiff on 30.06.2020 and attempted to repay the advance of Rs.5,10,000/- as the plaintiff did not complete the sale within the stipulated time, but the plaintiff refused to receive the same by demanding further three months. So, the plaintiff is not entitled for the discretionary relief of specific performance.
5. The 2nd respondent/2nd defendant remained ex-parte.
6. The trial Court framed the following issues upon the pleadings of both parties:
(1) Whether the plaintiff has proved his readiness and willingness to perform his part of contract?
(2) Whether the time is essence to the contract?4/27
https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 (3) Whether the plaintiff is entitled for decree for specific performance?
(4) To what other relief?
7. During trial, the plaintiff examined himself as P.W.1 and examined one K.Subbareddiar as P.W.2. On the plaintiff's side eight exhibits were marked as Ex.A.1 to Ex.A.8. The 1st defendant examined herself as D.W.1 and no exhibit was marked.
8. On appreciation of evidence and the submissions made on behalf of the parties, the trial Court has decreed the suit in favour of the plaintiff by its judgment and decree, dated 14.10.2022.
9. The judgment and decree of the trial Court, dated 14.10.2022 is under challenge in this appeal.
10. Both parties have argued at length by relying upon the judgments of the Hon'?ble Supreme Court.
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11. The points for consideration in this appeal are;
1)Whether the plaintiff was always ready and willingness to perform his part of contract?
2) Whether the time is essence of contract?
12. Point Nos.1 and 2:
It is admitted by both sides, that they have entered into a sale agreement dated 14.05.2020 for selling the suit property measuring 10 cents at the rate of Rs.2,06,000/- and an advance of Rs.5,10,000/- was paid, fixing 45 days time for payment of balance sale consideration from the date of sale agreement. During course of arguments, both side admitted that the sale agreement is a registered one. Balance sale consideration was not paid within the 45 days time and after exchange of legal notices, the suit has been filed for the relief of specific performance, which was granted by the trial Court. The learned counsel for the appellant/1st defendant submitted that, though as per sale agreement, 45 days was fixed to complete the sale i.e., on or before 28.06.2020, the plaintiff has not shown any readiness and willingness to perform his part of contract till 28.06.2020.
The learned counsel further submitted that the plaintiff sent the legal notice Ex.A.6 only on 30.06.2020, by that time, the sale agreement was automatically terminated. Moreover, the allegation that the 1st defendant encroached upon 7ft in the common pathway, and the 1st defendant failed to measure the property, are all 6/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 absolute lies and they were also not condition precedent to perform the contract.
Moreover, the plaintiff miserably failed to prove he was ready and willing to perform the contract with the balance amount, and even he deposited the balance sale consideration only on 21.06.2021 i.e., after 1 year from the date of suit.
So it is his further submission that the trial Court misconstrued the facts and the trial court failed to consider the time was the essence of the contract and that the plaintiff was not ready and willing to perform his contract when the time is specifically mentioned as 45 days for completion of sale, and particularly, the plaintiff is not entitled for the discretionary relief of specific performance.
13. In support of his argument, the learned counsel relied on the following citations:
(1) (2015) 8 Supreme Court Cases 695 (Padmakumari and Others) /v/ Dasayyan and Others, wherein it is discussed and held in paragraph Nos.3, 5 and 16 as follows:
''3. Defendant Nos. 1 to 11 entered into an agreement of sale on 19.04.1992 in favour of the plaintiff and executed an unregistered agreement agreeing to sell the suit schedule property measuring 2.08 acres of land belonging to them. The total sale consideration amount is Rs. 65,000/-. Advance amount of Rs. 2,000/- was agreed to be paid for execution of sale and the remaining balance consideration is agreed to be paid within nine months from the date of agreement of sale.7/27
https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 Undisputedly, the remaining balance sale consideration is not paid on or before 18.04.1993.
5. The plaintiff got issued the legal notice (Exhibit A-3) on 29.04.1993 to defendant Nos. 1 to 15 demanding execution of the sale deed as per the agreement (Exhibit A-1). Defendant Nos. 12 to 15 replied vide Exhibit B-7. The other defendants did not reply to the demand made by the plaintiff, therefore, he was constrained to institute original suit on 14.06.1993 before the Sub Court Kuzhithurai. The written statements were filed by all the defendants denying the claim of the plaintiff inter alia contending that the time is the essence of the contract as per unregistered agreement of sale (Exhibit A-1). As the plaintiff had agreed to pay remaining sale consideration of Rs. 63,000/- within nine months from the date of agreement, the same has not been paid. Since there is breach of contract on the part of the plaintiff and, therefore, he is not entitled for decree of specific performance in respect of the suit schedule property.
16. With reference to the aforesaid rival legal contentions, we are required to examine the correctness of the concurrent finding recorded on the question of stipulation of period to perform the contract by the plaintiff to pay the balance consideration of Rs. 63,000/- on the basis of which he was awarded the decree of specific performance.
We have carefully examined this aspect in the backdrop of the recitals contained in the unregistered agreement to sell the suit schedule property to the plaintiff. As could be seen from the said agreement the plaintiff has agreed for payment of the balance sale consideration amount within nine months from the date of execution of the agreement to sell. The relevant recitals of Exhibit A1 are extracted hereunder for better appreciation of the contentions urged in this regard by the learned counsel on behalf of defendant Nos. 12 to 8/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 15:
"You are willing to purchase this schedule of property for Rs. 65,000/-. As we were fully aware that there was no possibility to purchase this property for a higher price by anybody else, we also were willing to sell for the same amount and hence we received an advance of Rs. 2,000/- from the total price. This amount of Rs. 2,000/- is received to relieve us a little from our debt trap. You should pay the balance of consideration Rs.
63,000/- within 9 months." (emphasis
supplied)
17. The above clause in the agreement to sell clearly indicates that the plaintiff has agreed to perform his part of the contract by paying balance consideration amount of Rs. 63,000/- within nine months. This clause falls within the first part ofArticle 54 of the Limitation Act, 1963.
19.The said legal contention urged on behalf of defendant Nos. 12 to 15 has been strongly rebutted by learned counsel on behalf of the plaintiff contending that the question of payment of balance consideration amount of Rs.63,000/- within nine months would have arisen after the terms and conditions of the contract agreed upon by defendant Nos. 1 to 11 if they had measured the suit schedule property. They have not discharged their part of the contract stipulated in the agreement to sell, therefore, it is urged by him that time was not the essence of the contract as defendant Nos. 1 to 11 themselves have failed to perform their part of the agreement.
20. The said contention urged on behalf of the plaintiff is unacceptable to us that the question of taking measurement would not arise before the plaintiff perform his part of the contract regarding the balance consideration within the period 9/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 stipulated in the agreement. Undisputedly, that had not been done by the plaintiff in the instant case within the stipulated time and the notice was issued by the plaintiff only after one year, therefore, the plaintiff has not adhered to the time which is stipulated to pay the balance consideration amount to defendant Nos. 1 to 11 which is very important legal aspect which was required to be considered by the Courts below at the time of determining rights of the parties and pass the impugned judgment. The Courts below have ignored this important aspect of the matter while answering the contentious Issue Nos. 1 and 2 in favour of the plaintiff.
(2) (2023) 11 Supreme Court Caes 775 (U.N.Krishnamurthy (since deceased) through LRs /v/ A.M.Krishnamurthy), wherein it is held in paragraph Nos.23, 24, 33 to 35 as follows:
23.Section 16 (c)of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause
(c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, explanation
(ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.
24.To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make 10/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.....
33.There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar cited by Mr.Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar
34. Even in a first appeal, the first Appellate Court is duty bound to examine whether there was continuous readiness and willingness on the part of the Plaintiff to perform the contract. This proposition finds support from Balraj Taneja v. Sunil Madan, and H.P. Pyarejan v. Dasappa where this Court approved the views taken by the Privy Council inArdeshir Mama v. Flora Sassoon.
35. In Malluru Mallappa v. Kuruvathappa, this Court observed and held:-
“13. It is a settled position of law that an appeal is a continuation of the proceedings of the 11/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable 7 (1996) 4 SCC 526 8 (2018) 3 SCC 658 9 (1999) 8 SCC 396 10 (2006) 2 SCC 496 11 AIR 1928 PC 208 12 (2020) 4 SCC 313 right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see : Santosh Hazariv.
Purushottam Tiwari [Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179] , Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756], B.M. Narayana Gowda v. Shanthamma [B.M. Narayana Gowda v. Shanthamma, (2011) 15 SCC 476 : (2014) 2 SCC (Civ) 619], H.K.N. Swami v.
Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243] and Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar [Sri Raja Lakshmi Dyeing Works v. Rangaswamy, (1980) 4 SCC 259]] (3) (2024) 3 Supreme Court Cases 232 (Alagammal and Others /v/ Ganesan and Anr.), wherein it is held in paragraph Nos.26, 27 and 28 as follows:
''26. Having considered the matter, this Court finds that the Judgment impugned cannot be sustained. The moot question revolves around whether the Agreement dated 22.11.1990 discloses a fixed time-frame for making payment in full by the respondents that is, in terms of the recitals in the agreement for sale executed by the appellant 12/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 no.1 in favour of the respondents. The admitted position is that the time indicated in the agreement was six months from 22.11.1990 i.e., till 21.05.1991 and as per the legal notice dated 18.11.1997 sent by the respondents to the appellants, only Rs.7000/- was paid within the time stipulated.
27. Perusal of the Agreement reveals that the respondents had agreed to pay the appellants Rs.21,000/- for the property in question, out of which Rs.3,000/- was already paid as earnest money and the rest was to be paid within 6 months.
The respondents were to purchase stamp papers at their expense and the appellants had to register the Sale Deed either in the name of the respondent no. 1 or as proposed by him before the Sub-Registrar after paying the remaining/balance amount. If the appellants failed to register the Sale Deed, respondent no.1 had a right to deposit the balance of sale consideration in the Civil Court and get sale with possession effected through Court from the first party i.e., appellants no.1 to 3.
28. At this juncture, the Court would indicate that within six months there existed the onus of paying the entire balance amount of Rs. 18,000/- by the respondent no.1 to the appellant no.1. It is not the case of the respondents that they had even offered to pay the remaining/balance amount before the expiry of the six-month period. Thus, payment of Rs.3,000/- only out of Rs.21,000/- having been made, or at best Rs.7,000/- out of Rs.21,000/-, which is the amount indicated in the Legal Notice sent by the respondents to the appellants, the obvious import would be that the respondents had not complied with their obligation under the Agreement within the six-month period.
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14. Per contra, the learned counsel for the plaintiff/1 st respondent has argued that the plaintiff issued legal notice Ex.A.6, dated 30.06.2020, wherein the plaintiff has specifically stated his readiness and willingness. The defendant has not taken any steps to send notice to the plaintiff terminating the contract as the payment was not made within 45 days, but sent reply Ex.A.7, dated 03.07.2020.
The sale agreement and sale consideration and also receipt of advance were admitted by the defendant. The plaintiff filed the suit on 21.07.2020 along with lodgment schedule, but due to administration delay by the Court, the challan Ex.A.8 was issued only on 21.01.2021 and the balance sale consideration was deposited immediately into court on 29.01.2021. So, it proved the plaintiff's readiness with sufficient funds. The learned counsel further submitted that even fixing 45 days would not mean time was the essence of the contract. Unless a default clause was incorporated, the sale agreement can not be automatically terminated. The trial Court has properly appreciated the evidence, and the findings of the Court below need not be set aside. The learned counsel further relied A Larger Bench Decision of the Hon?ble Supreme Court reported in (1993) 1 Supreme Court Cases 519 for the proposition that normally time was not essence of the contract relates to the sale of immovable property, and requested this Court to dismiss the appeal.
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15. In support of his argument the learned counsel for the first defendant relied on the following citations:
1) 2023 SAR (Civ) 1 (Daivasigamani /v/ Sambandan), the Hon’ble Supreme Court, held the following in paragraph Nos.15 and 20.
''15. Readiness and willingness are not one, but two separate elements. Readiness means the capacity of the plaintiff to perform the contract, which would include the financial position to pay the purchase price. Willingness refers to the intention of the plaintiff as a purchaser to perform his part of the contract. Willingness is inferred by scrutinising the conduct of the plaintiff/purchaser, including attending circumstances1. Continuous readiness and willingness on the part of the plaintiff/purchaser from the date the balance sale consideration was payable in terms of the agreement to sell, till the decision of the suit, is a condition precedent for grant of relief of specific performance.
20. Time, it is stated, is not the essence of the contract in the case of immovable properties, unless there are grounds to hold to the contrary. This doctrine is applied, without being unfair and inequitable to the defendant/seller, as the court should not ignore that a person sells the property when he needs money, and, therefore, expects the money in the stipulated or reasonable time, which would meet the purpose of the sale. The purpose of sale can vary from the need for liquid cash to be invested to earn interest, medical, educational, child’s marriage or purchasing another property. To save capital gains, the seller has to purchase another immovable property, unless the proceeds are exempt. There has been a steep rise in the prices of land in the last quarter of the 20th Century in India. With the rise in property value, the value of money has fallen. At times, delay in 15/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 payment would defeat the defendant/seller’s purpose. Therefore, the offer of the plaintiff/purchaser in writing and the time and occasion when the offer to pay the balance amount to the defendant/seller is an important factor which would matter when the court examines the question of discretion, that is, whether or not to grant a decree of specific performance. While examining these aspects, the quantum of money paid by the plaintiff/seller to the defendant/purchaser may become a relevant fact that merits due consideration. There is a distinction between limitation and delay and laches. Limitation is a ground for dismissing a suit even if the plaintiff is otherwise entitled to specific performance, while delay operates to determine the discretion and exercise under Section 20 of the Specific Relief Act (2) (2023) 2 CTC 350 (P.Ramasubbamma /v/ Vijayalakshmmi and Others), wherein it is held in paragraph No.5.2 as follows:
''5.2 Considering the fact that original defendant No. 1 – vendor – original owner admitted the execution of agreement to sell dated 12.04.2005 and even admitted the receipt of substantial advance sale consideration, the learned Trial Court decreed the suit for specific performance of agreement to sell dated 12.04.2005. Once the execution of agreement to sell and the payment/receipt of advance substantial sale consideration was admitted by the vendor, thereafter nothing further was required to be proved by the plaintiff – vendee.
Therefore, as such the learned Trial Court rightly decreed the suit for specific performance of agreement to sell. The High Court, was not required to go into the aspect of the execution of the agreement to sell and the payment/receipt of substantial advance sale consideration, once the vendor had specifically admitted the execution of 16/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 the agreement to sell and receipt of the advance sale consideration; thereafter no further evidence and/or proof was required.
3) (1993) 1 Supreme Court Cases 519 (Chand Rani /v/ Kamal Rani), it is held in paragraph No.20 as follows:
“20. We will now refer to the decisions of this Court. In Gomathinayagam Pillai case, it was held at pages 231 to 231;
“...Section 55 of the Contract Act which deals with the consequence of failure to perform an executory contract at or before the stipulated time provides by the first paragraph 'When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the opinion of the promise if the intention of the parties was that time should be of the essence of the contract.' It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable: it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. ..If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract.17/27
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16. I have carefully considered the arguments of both sides and the rulings relied on either side, along with material records of the case. As already stated supra, there is no dispute that the plaintiff and defendant entered into sale agreement, dated 14.05.2020, which is a registered one, for sale of suit property, i.e., 10 cents. Sale consideration was fixed at Rs.2,06,000/- per cent and the total sale consideration is Rs.20,61,299/-. The defendant received an advance of Rs.5,10,000/-. In the impugned sale agreement, 45 days time was fixed for the completion of the sale. However, the sale transaction has not been completed within 45 days. It is the case of the plaintiff that the defendant agreed to measure the suit property with the assistance of a surveyor and also there was an encroachment upto 7 feet in the common pathway, so the plaintiff asked the defendant to clear the same, and he failed to do so. But it is denied by the defendant's side that there is no such condition precedent and there is no encroachment as alleged by the plaintiff.
17. As rightly argued by the defendants side, the plaintiff has to prove his willingness and readiness to entitle the relief of specific performance, as per Section 16 of the Specific Relief Act, which dealt with by the Apex Court as follows:
“23.Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a 18/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, Explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.
24.To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him.
33.There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff.19/27
https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 The same view was taken by this Court in Kalawati v. Rakesh Kumar.
34. Even in a first appeal, the first Appellate Court is duty bound to examine whether there was continuous readiness and willingness on the part of the plaintiff to perform the contract. This proposition finds support from Balraj Taneja v. Sunil Madan, and H.P. Pyarejan v. Dasappa where this Court approved the views taken by the Privy Council in Ardeshir Mama v. Flora Sassoon.” From the above it is clear from the explanation that the plaintiff must aver his readiness and willingness to perform the contract according to its true construction.
18. On perusal of plaint, the plaintiff clearly averred as follows:
“thjpf;F 1k; gpujpthjp chpa Kiwapy; jgrpy;
brhj;J Fwpj;j Mtzq;fis fhz;gpj;J jgrpy;
brhj;ij rh;ntah; Jiza[ld; mse;J fhz;gpg;gjhf xg;g[f;bfhz;Lk;> ,Jehs;tiu jgrpy; brhj;ij rh;ntah; Jiza[ld; mse;J fhz;gpf;f Kd;tuhky; fhyk; jhH;j;jp tUfpd;whh;.. mj;Jld; kl;Lky;yhky; 1k; gpujpthjp 7 mo bghJg;ghijiaa[k; nrh;j;J Mf;fpukpj;J fy; Cd;wpa[s;shh;. 1k; gpujpthjp jf;fKiwapy; jgrpy; brhj;jpid mse;J fhz;gpf;Fk; gl;rj;jpy; cldoahf thjp> 1k;
gpujpthjpaplk; fpiuag;gj;jpuk; gjpt[ bra;J bgw;Wf;bfhs;ss jahuhf cs;shh;....”.20/27
https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 And the plaintiff reiterated the same in his legal notice. The plaintiff categorically deposed in his evidence as P.W.1. It is denied by the first defendant that these are not mentioned in the sale agreement. Both the plaintiff and the first defendant have not examined any of the witnesses to the sale agreement.
On perusal of evidence of D.W.1 she has clearly admitted in her cross examination that “gpuhJ brhj;jpd; bjd;tly; ePsk; vt;tst[ vd;W vdf;F gof;fhjjhy; bjhpahJ. jhth brhj;jpw;F ehd; jw;nghJ 7 mo jhz;o ntyp mikj;Js;nsd; vd;why; rhpay;y. ,e;j tHf;fpy; miHg;ghiz thq;fptpl;L jhd; ntyp mikj;njhk; vd;why; rhpjhd;..” The schedule of property mentioned in the sale agreement as well as in the plaint is as follows:
“tpUJefh; gjpt[ khtl;lk;> fhhpahgl;o fpis gjpt[ khtl;lk;> fl;Lf;Fj;jif fhpry;Fsk; cs;fil> brty;gl;o fpuhkj;jpy; rh;nt vz;.33/12 kid epy g[Q;ir Vf;fh; 2.75y; bjd;gf;fk; Vf;fh; 1.72y; vdJ ghfk; nkw;F filrpapy; brz;L 39y;
tlg[wk; fpHnky; ,Ug[wKk; 63 mo>
bjd;tly; ,Ug[wKk; 69 ¼ mo mst[f;F brz;L
10f;F 4362 ¾ rJumo gug;gst[s;s
kidaplj;jpw;F… ..”.
A conjoint perusal of evidence of D.W.1 along with particulars of schedule of property mentioned in the sale agreement and in the plaint, the averment of the 21/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 plaintiff that the first defendant agreed to measure the suit property with the assistance of surveyor has some force, and it cannot be brushed aside.
19. Of course, the stipulated period of 45 days was ended on 29.06.2020, itself and the plaintiff issued Ex A6, legal notice, only on 30.06.2020, for which the defendant sent reply on 03.07.2020. Immediately the plaintiff has filed the suit along with lodgment schedule on 21.07.2020, for deposit of the balance sale consideration of Rs.15,51,299/- and the deposit was made on 21.06.2021 as seen from Ex.A.8. Rightly the delay was explained by the plaintiff as it was due to issuing order by the concerned Court office. Any fault due to the Court proceedings cannot affect a litigant. At this juncture, the learned counsel for the defendant argued that there is no material placed by the plaintiff to show that he has been possessed with sufficient means to pay the balance sale consideration during the subsistence of the agreement. This argument is not acceptable as the plaintiff need not prove his source to mobilize money simply it is enough to aver his readiness, as per the judgment reported in (2017) 4 Supreme Court Cases 654 ?A.Kanthamani/v/ Nasreen Ahmed case ?it is not necessary for the plaintiff to produce the money or vouch a concluded scheme for financing the transaction to prove his readiness and willingness, much less purchaser need not prove possession of sufficient money for financing transaction during stipulated period.
22/27https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 In this case, the defendant admitted the execution of sale agreement and also receipt of advance of substantial amount.
20. Similarly, this Court also held in a case reported in 2022 (4) CTC 649 following the judgment of the Hon'ble Supreme Court in P.Ramasubbamma v.
V.Vijayalakshmi & Others [Civil Appeal No.2095 of 2022, dated 11.04.2022], which is reproduced hereunder.
''20.Once the execution of the agreement of sale and the receipt of the substantial amount towards the sale consideration is established, there is nothing more to be proved by the agreement holder to establish his readiness and willingness to perform his part of the contract. The finding of the lower Appellate Court in this regard does not suffer from any perversity and it does not require the interference of this Court. This Court holds that the plaintiff had established the execution of the sale agreement and also the payment of substantial amount towards sale consideration and also his readiness and willingness to perform his part of the contract. Therefore, the natural consequence would be that the plaintiff will be entitled for the relief of specific performance. The substantial question of law framed by this Court is answered accordingly.''
21. Moreover, the plaintiff's side another witness P.W.2 deposed as “uhkrhkp (thjp) jahuhfjhd; ,Ue;jhh;. mjw;Fs; nul;L gpur;rid Vw;gl;L epd;D nghr;R. ahh; nul; gpur;rid bra;jhh; vd;why; nfrtd; ma;ah kidtp (gpujpthjp) TLjyhf vjph;ghh;j;jhh;. ml;thd;]; bfhLj;jnghJ ehd;
23/27https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 ghh;j;njd;...”. To disprove the above evidence, the defendant has not examined any other witness except her own evidence. But D.W.1 deposed that “thjp hpay;v];nll; bjhHpy; bra;J tUtjhft[k; ,Jnghd;W gy egh;fsplk;
Fiwe;j tpiyf;F brhj;Jf;fis fpiua xg;ge;jk; bra;J TLjy; yhgk;
<l;Lk; tifapy; ntWegh;fSf;F brhj;jpid khw;wp bfhLf;Fk; egh; Mthh;.” The demand of higher price for selling the suit property by the defendant is established. From the above facts and circumstances, the plaintiff has established his readiness and willingness to perform his part of contract, and the trial Court has correctly held the same in favour of the plaintiff.
22. The next point is, whether time is the essence of contract. In this case as specifically 45 days time was fixed in the sale agreement, dated 14.05.2020, which was ended on 29.06.2020. At the same time, as rightly contended, there is no default clause about the consequences of failure to comply within the specified time. The defendant also has not taken any coercive steps either before or after the expiry of 45 days to terminate the sale agreement. The first defendant as D.W.1 has clearly admitted ?“29.06.2020k; njjp fpiua xg;ge;jk; fhyhtjp Mfptpl;ljhYk; nkw;go njjpf;Fs; ehd; thjpf;F gpuhJ brhj;ij fpiuak;
bra;J bfhs;s Twp vdJ tHf;fwpQh; K:ynkh my;yJ ehndh mwptpg;g[ bfhLj;njdh vd;why; ,y;iy. ,J rk;ge;jkhf fhty;epiyaj;jpw;F g[fhh; bfhLf;ftpy;iy..”.
24/27https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022
23. On perusal of Ex.A.7 reply notice, the first defendant stated that ?“nkYk; thjp hpay;v];nll; bjhHpy; bra;J tUtjhft[k; ,Jnghd;W gy egh;fsplk; Fiwe;j tpiyf;F brhj;Jf;fis fpiua xg;ge;jk; bra;J TLjy;
yhgk; <l;Lk; tifapy; ntWegh;fSf;F brhj;jpid khw;wp bfhLf;Fk; egh;
Mthh;. mnj nghd;nw jhth brhj;jpida[k; gpujpthjpaplk; fpiua xg;ge;jj;ij kl;Lk; nghl;L itj;Jf;bfhz;L ntW egh;fSf;F TLjy; yhgk;
itj;J khw;wp bfhLf;Fk; nehf;fj;jpy; xg;ge;j fhyj;jpw;Fs; fpiuak; gjpahJ fhyq;flj;jpna te;Js;shh;..”. If the defendant took the above stand, the defendant ought to have issued a notice before the expiry of time for terminating the sale agreement. From the above facts and circumstances, it is clearly proved in the case on hand that time is not the essence of the contract. Moreover, it is a trite principle of law that “Time is not the essence of the contract in the case of immovable properties, unless there are grounds to hold to the contrary?
Each case has to be considered upon available evidence on record of that case.
The citations relied on by the appellant/1st defendant side are not applicable to the facts and circumstances of this case, whereas the rulings relied on by the 1st respondent/plaintiff side are applicable to the facts of this case.
24. Therefore, this Court is of the considered view that the trial Court has correctly appreciated the evidence adduced on both side and after considering the arguments and citations relied on by both, the trial Court correctly held that the 25/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 1st respondent/plaintiff has proved his case and he is entitled to the discretionary relief of specific performance. For all these reasons, the judgment and decree of the trial Court is sustainable in law and the same need not be interfered by way of this appeal. Thus, the appeal fails.
25. In the result,
i) This appeal is dismissed. No costs.
ii) The judgment and decree, dated 14.10.2022 made in O.S.No.12 of 2020 on the file of the learned Additional District Judge, Virudhunagar is confirmed.
iii) Consequently, the connected Civil Miscellaneous Petition is closed.
10.06.2025 NCC : Yes / No Internet : Yes / No Index : Yes / No VSD To
1.The Additional District Judge, Virudhunagar.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
26/27https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am ) A.S(MD)No.276 of 2022 P.VADAMALAI, J.
VSD Pre-Delivery Judgment made in A.S(MD)No.276 of 2022 and C.M.P(MD)No.12638 of 2022 10.06.2025 27/27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/07/2025 11:27:49 am )