Madras High Court
Mohanasundaram vs Kishanlal on 13 March, 2012
Equivalent citations: AIR 2012 (NOC) 341 (MAD.)
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 13.3.2012 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.228 of 2011 and M.P.No.1 of 2011 Mohanasundaram .... Appellant vs. Kishanlal ... Respondent Appeal against the judgement and decree dated 26.11.2010 passed by the Additional District Judge cum Fast Track Court No.I, Chengalpattu, in O.S.No.65 of 2006. For appellant :: Mr..Manohar For Respondent :: Mr.R.Thiaarajan JUDGEMENT
This appeal is focussed by the defendant in the suit, as against the judgement and decree dated 26.11.2010 passed by the Additional District Judge cum Fast Track Court No.I, Chengalpattu, in O.S.No.65 of 2006, which was one for specific performance of an agreement to sell.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus:
(i) The respondent herein, as plaintiff, filed the suit for specific performance based on the agreement to sell-Ex.A1 dated 20.9.2004, which emerged between the plaintiff on the one side and the defendant. Whereby, the latter agreed to sell in favour of the former the suit property for a total sale consideration to be calculated at the rate of Rs.6000/- per cent. An advance of Rs.five thousand was paid by the plaintiff to the defendant. The parties also agreed that depending upon the actual measurement available on ground, the price would vary. Even though the plaintiff was ready and willing to perform his part of the contract, the defendant was dilly- dallying and shilly-shallying with the matter and that he was dragging his feet. Whereupon, after exchange of notices, the suit was filed by the plaintiff seeking the following reliefs:
"to pass a decree and judgement for specific performance of agreement of sale dt.20.9.2004 directing the defendant to execute and register a sale deed in favour of the plaintiff by receiving the balance of sale consideration of Rs.10,21,000/- and in the event of his refusal or failure to comply with such decree or this Hon'ble court may itself be pleased to execute a sale deed (by deputing an officer of this Hon'ble Court) in favour of the plaintiff and (b) to direct the defendant to deliver possession of the property and (c) to direct the defendant to pay costs of the suit."
(ii) Challenging and refuting the averments in the plaint, the defendant filed the written statement, the gist and kernal of it would run thus:
(a) As agreed in Ex.A1-the receipt, the plaintiff did not keep up his promise in paying a sum of Rs.95,000/- as advance per acre within a reasonable time and also in expressing his readiness to get the sale deed executed in his favour.
(b) The plaintiff did not have had the financial wherewithal to pay the sale consideration and he simply made the defendant to incur loss by waiting in vain; whereupon, the defendant was constrained to execute a Power Deed, whereby, his power agent sold the suit property in two moieties to third parties.
Accordingly, the defendant prayed for the dismissal of the suit.
(iii) Whereupon, the trial Court framed the issues.
(iv) During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A39 were marked. On the defendant's side, the defendant examined himself as D.W.1 and Exs.B1 to B5 were marked.
(v) Ultimately, the trial Court decreed the suit.
4. Being aggrieved by and dissatisfied with the same, the defendant preferred this appeal on various grounds.
5. The learned counsel for the appellant/defendant, by placing reliance on the grounds of appeal would put forth and set forth his arguments, which could tersely and briefly be set out thus:
(i) The trail Court failed to take into consideration the fact that the plaintiff, after paying a paltry sum of Rs.5000/- as token advance, virtually kept quiet and he indulged in chance litigation by filing the suit, without even depositing the amount agreed as per Ex.A1 in Court.
(ii) The question of the defendant measuring the suit property does not arise at all in this case, because the plaintiff admittedly purchased similar properties in the vicinity from the defendant's brother and he had full knowledge about the perfect title of the defendant and in such a case, the plaintiff's harping on the point that since the original title deeds etc., were not produced by the defendant, he was not coming forward to pay the remaining part of the sale consideration, is nothing but a cock and bull story.
(iii) The trial Court failed to consider the fact that the pass-books and fixed deposits produced on the plaintiff's side were mostly standing in the name of his relatives and also in the name of a trust and the trial Court should have seen that the plaintiff had not produced any evidence to show that he was financially sound to purchase the property.
(iv) Simply because, the plaintiff in his plaint expressed his readiness to purchase the property, that it does not mean that the relief of specific performance should be granted in his favour. The balance of convenience should be seen.
(v) The plaintiff himself admitted that there is escalation in the value of the land and now the plaintiff in this chance litigation initiated by him want to snatch away the property for a meagre sum.
(vi) The trial Court, without considering the over all circumstances involved in this case, simply decreed the suit, warranting interference in the appeal.
Accordingly, the learned counsel for the appellant/defendant would pray for setting aside the judgement and decree of the trial Court and for dismissing the suit.
6. In a bid to torpedo and pulverise and make mincemeat of the arguements as put forth and set forth on the side of the defendant, the learned counsel for the respondent/plaintiff would advance his arguements, which could tersely and briefly be set out thus:
(i) The trial Court deeply considered the evidence on record and held that the plaintiff had been ready and willing to perform his part of the contract, whereas, the defendant, even after undertaking, as per the agreement-Ex.A1, for measuring the suit property and thereafter receiving a sum of Rs.95,000/- per acre, as additional amount under the agreement to sell, had not chosen to raise his little finger in getting the property measured.
(ii) The trial Court also considering properly the relevant Exs.A10 to A35-the copies of post office pass books, which are standing in the names of the plaintiff and his relatives and also taking into account the income tax returns of the plaintiff, held that the plaintiff had financial wherewithal to perform his part of the contract, warranting no interference in appeal at all.
(iii) The defendant even in his reply had not expressed his readiness to measure the suit property and it cannot be taken lightly by the Court as though measuring of the property was a formal one.
Accordingly, the learned counsel for the respondent/plaintiff prayed for dismissal of the appeal.
7. The points for consideration are as follows:
(1) Whether the trial Court failed to take into account the fact that the plaintiff was not ready and willing to perform his part of the contract and that he simply tried to capitalize his own dished out pleas, that the suit property was not measured and that he was having money in the name of his relatives.
(2) Whether the trial Court was justified in holding that the plaintiff was ready and willing to perform his part of the contract, and whereas, the defendant was at fault?
(3) Whether there is any perversity or illegality in the judgement and decree of the trial Court?
8. All these points are taken together for consideration, as they are interwoven and interlinked, interconnected and entwined with one another.
9. The Indubitable and indisputable or at least the undeniable facts could pithily and precisely be set out thus:
Ex.A1- the agreement to sell dated 20.9.2004 emerged between the plaintiff and the defendant; whereby the latter agreed to sell in favour of the former, the suit property measuring an extent of 1.71 acres at the rate of Rs.6000/- per cent.
10. At this juncture, it is just and necessary to refer to the contentions as put forth on the side of the appellant/defendant, who would try to portray and project ExA1 as a mere receipt. In other words, he would state that Ex.A1 was nothing but a prelude to the commencement of an actual agreement to sell.
11. The trial Court, after considering the pros and cons of the matter and also referring to the recitals in Ex.A1, correctly held that it was an agreement to sell. The plaintiff and the defendant signed Ex.A1 in the presence of two attesting witnesses. The recitals would be to the effect that the defendant agreed to sell the property described in the schedule of Ex.A1, i.e. the suit property herein, for a consideration at the rate of Rs.6000/- per cent.
12. At this juncture, it is just and necessary to extract the relevant portion of Ex.A1:
VERNACULAR (TAMIL) PORTION DELETED
13. The above excerpt would unambiguously and unequivocally highlight and spotlight the fact that the defendant should measure the suit property, whereupon the actual extent should be ascertained and in respect of that extent ascertained, a sum of Rs.95,000/- per acre should be paid as further advance or as part of the sale consideration and from that date onwards, within 16 months, the entire sale should be got fructified.
14. Pithily and precisely from clause No.(3) extracted supra, one could understand that the burden was on the defendant to get the property measured.
15. It is a common or garden principle that only the owner can approach the Revenue authorities and get his properties measured. The prospective purchaser cannot petition the tahsildar or the Revenue official for measuring the prospective seller's land, because it is quite obvious that before purchasing the suit property, the prospective purchaser cannot exercise any right over the property concerned.
16. The core question arises as to whether the defendant raised at least his little finger to get the property measured. The answer is at once clear that he did not do so. Even in the reply notice Ex.A6 dated 25.9.2005 sent by the defendant to the plaintiff's notice, the defendant simply stated as though he was ready and willing to perform his part of the contract and it was the plaintiff who was shilly-shallying with the matter, without coming forward to pay the remaining part of the sale consideration or the said sum of Rs.95,000/- per acre as per Ex.A1.
17. The trial Court au fait with law, adverting to the said facts pointed out supra that the defendant did not take any steps to get the property measured. In such a case, the defaulter cannot try to capitalise his own fault.
18. At this juncture, I recollect and call up the following maxims:
(i) Nul Prendra advantage de son tort demesne No one shall take advantage of his own wrong.
(ii) Nullus commodum capere potest de injuria sua propria No one can gain advantage by his own wrong.
19. A person cannot capitalize his own mistake or wrongful act, is the sum and substance of those maxims.
20. Here the defendant, after ex facie and prima facie committing de fault of Ex.A1, was not justified in finding fault with the plaintiff as though he was not ready and willing to perform his part of the contract. Over and above that, such a person, namely, the defendant, was not justified in unilaterally cancelling the agreement to sell also and send the pay order on 25.9.2005 to the plaintiff. The evidence on record also would demonstrate and display that as per Ex.A6, the said pay order was returned. The defendant was wishy-washy, even on that aspect, as he would try to project the case as though he was in receipt of Ex.A7-the plaintiff's advocate notice dated 28.9.2005, but however, he was not in receipt of the pay order. If that be so, the defendant, who is the protagonist of the pay order should have obtained necessary particulars from the bank concerned relating to the factum of encashment and tried to pin down the plaintiff, but he did not do so.
21. The contention on the side of the defendant was that the trial Court simply took it for gospel truth the contents of Exs.A10 to A.35-the copies of post office pass books, as though the amounts lying in the account happened to be the amounts of the plaintiff and that he had financial wherewithal to pay the remaining sale consideration etc.
22. The learned counsel for the plaintiff would explain and expound by pointing out that nowhere it is contemplated that the plaintiff himself should possess money in the bank in his own name or he should jingle the coins before the defendant by way of expressing his readiness and willingness to purchase the suit property. It is sufficient if the plaintiff could show that he could raise sufficient amount for the purpose of paying the remaining part of the sale consideration.
23. According to the plaintiff, the documents referred to supra would unambiguously and unequivocally display and demonstrate that the plaintiff as well as his near relatives had various amounts and they happened to be the trustees of a trust.
24. At this juncture, I would like to recollect the following decisions of the Honourable Apex Court emerged under Sections 16 read with Section 20 of the Specific Relief Act:
(i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. Hartar Singh Sangha]; certain excerpts from it would run thus:
"40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations."
(ii) (2011) 1 SUPREME COURT CASES 429 J.P.BUILDERS AND ANOTHER V. A.RAMADAS RAO AND ANOTHER would run thus:
"27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
25. It has to be seen as to whether there are any laches on the part of the plaintiff so as to label him or dub him as the one who suffered from personal bar under Section 16 of the Specific Performance Act. Absolutely there is nothing to indicate that the plaintiff suffered from any such par, as contemplated under Section 16 of the Specific Relief Act.
26. A bare poring over and perusal of the above precedents would unambiguously and unequivocally spotlight and indicate the fact that it is not necessary that in all cases the plaintiff should produce any Bank pass-book to prove his financial wherewithal to purchase the property. It is sufficient if he could show that he is financially sound.
27. Here the aforesaid exhibits would show that the plaintiff was having sufficient funds at the relevant time. Over and above that he himself is doing money lending business and also real estate business. His income tax returns Exs.36 and 37 would also indicate and establish that the plaintiff is a man of means and law does not contemplate that at one and the same point of time the plaintiff, who seeks specific performance should have in his bank deposit exactly the amount incommensurate with the sale consideration and that is not the expectation of the law also.
28. At this juncture, I would like to extract hereunder Section 16(c)(i) of the Specific Relief Act.
"Sec.16.Personal bars to relief-
(a) . . .
(b). . .
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation For the purpose of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court;
. . . .
29. A bare running of the eye over it would exemplify and demonstrate that it is sufficient if the plaintiff pays the amount in Court on being ordered to do so. In this case, consequent upon the decree, the amount was deposited by the plaintiff.
30. The Discretionary power of the Court in this case as per Sec.20 of the Specific Relief Act in ordering specific performance also should be used in favour of the plaintiff, because there is nothing to proclaim or display that the plaintiff suffers from any disability to seek for specific performance. Merely because in the written statement or during trial, the defendants 3 to 5 contended that the value of the property was more and it was sought to be sold for a song, the specific performance cannot be denied in view of the following decision of this Court.
1995(1) L.W. 716 [K.M.Madhavakrishnan vs. S.R.Swami and another], certain excerpts from it would run thus:
"39. Even though the fairness of the price was concluded by the earlier Division Bench judgment, Mr.G.Subramaniam contended that the question of grant of equitable relief of specific performance has got to be seriously considered by us. According to him, a paltry sum of Rs.10,011/- was paid by way of advance and that all through the respondents have never moved the trial Court for trial of the suit and they have been only delaying and subsequently, the old lady herself has been fighting the litigation. However, since the decree for specific performance is against deceased Paramayammal and at present against her heirs, if it is granted, it will be grossly inequitable. The respondents have taken possession of the property as early as 19.3.1968 and that they have been enjoying the property. This contention of Mr.G.Subramaniam is also liable to be rejected. Increase in price of properties cannot be a ground for refusing the decree for specific performance. The parties are not responsible for the law's delays. The respondents have denied that they have enjoyed the property. Once the fairness of price is concluded by the earlier Division Bench judgement of this Court, which was later on confirmed by the Apex Court, it is not at all open to the learned Senior counsel for the appellant to raise this contention once over again. Hence, we reject this contention as well." (emphasis supplied)
31. A bare perusal of the above precedent and also explanation (1) to sub-Section (2) of Section 20 of the Specific Relief Act would reveal that a mere escalation in value of the land or by projecting that the suit property is of higher value, one cannot try to wriggle out of his liability to execute the sale deed.
32. In fact, the suggestion put by the defendant to the plaintiff that there occurred 25% increase in price would speak the real intention of the defendant that he was for selling the property for higher price.
33. The learned counsel for the plaintiff would draw the attention of this Court to Exs.B4 and B5-the sale deeds dated 18.12.2006 for Rs.3,24,000/- & Rs.1,89,000/- purported to have been executed by the defendant through his power agent and argue that the defendant, in fact allegedly sold the suit property for a paltry sum even though in Ex.A1-the total sale consideration contemplated was above Rs.10,00,000/-(ten lakhs). As such, the prevarigative stands of the defendant stood exposed by his own conduct.
34. It is also quite obvious that pendente lite purchasers could have no claim over the suit property. In this connection, I would like to cite the decision of the Hon'ble Apex Court reported in (2011) 2 MLJ 317 (SC) [ T.G.Ashok Kumar vs. Govindammal and another]. Certain excerpts from it would run thus:
"9. ................ In Jayaram Mudaliar vs. Ayyasami AIR 1973 569 this Court held that the purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. This Court in Hardev Singh v. Gurmail Singh (2007) 2 SCC 404: (2007) 3 MLJ 44 held that Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation.
10. The principle underlying Section 52 is clear. If during the pendency of any suit in a Court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitle, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bona fide transferee's right and title are saved fully or partially.
11. In this case, a suit for partition filed by the first respondent against the second respondent in the year 1985 which included the suit property, was pending in a court of competent jurisdiction as on the date of sale (11.4.1990) by the second respondent in favour of the appellant. The partition suit was not collusive. Having regard to Section 52 of the Act, the sale by the second respondent in favour of the appellant did not in any way affect the right of the first respondent (plaintiff in the partition suit) or the decree made in her favour in the said partition suit. It is thus evident that the sale by second respondent in favour of the appellant though not void, did not bind the first respondent who was the plaintiff in the partition suit. On the other hand, the sale in favour of appellant was subject to the right declared or recognized in favour of the first respondent-plaintiff under the decree passed in the pending partition suit. The sale pendente lite would therefore be subject to the decree in the partition suit. In the final decree passed in the partition suit, the major portion of the suit property shown by the letters, B,C, D,E,F,G,H, I, B in the Commissioner's sketch (Exhibit C-5) was allotted to the share of the first respondent and to that extent, the sale in favour of the appellant would be ineffective. But, in regard to the remaining portion of the suit property namely the portion shown by the letters A, B,I, H, A in the Commissioner's sketch (Exhibit C-) which stood allotted to the share of the second respondent in the final decree in the partition suit, the sale by the second respondent in favour of the appellant is effective, valid and binding on the second respondent and to that extent, the appellant is entitled to a declaration of title and consequential injunction.
12. We are therefore, of the view that the suit ought not to have been dismissed in entirety even if the sale by the second respondent in favour of the appellant on 11.4.1990 was hit by the doctrine of lis pendens. The second respondent cannot avoid the sale made by her on the ground that she was held to be not the exclusive owner, in the pending partition suit. Therefore, the courts below ought to have decreed the appellant's suit in part, in regard to the portion of the suit property that fell to the share of second respondent instead of dismissing the suit."
35. As such, the trial Court was right in rejecting the prayer of the defendant to implead the pendente lite purchasers as defendants in the suit.
36. The learned counsel for the defendant would submit that the period of performance was eleven months as agreed between the parties. Whereas, the learned counsel for the plaintiff would explain and expound that as per Ex.A1-the agreement to sell, 16 months' period was contemplated as the period of performance and at no point of time the plaintiff stated that he wanted to avail the entire 16 months period, because he did not have had sufficient funds with him, as tried to be projected by the defendant.
37. The learned counsel for the defendant, by inviting the attention of this Court to certain portions of the depositions of P.W.1 would try to project and portray that the plaintiff himself admitted that even at the time of emergence of Ex.A1 he had seen the original documents and his subsequent pleading of ignorance about the original is nothing but a stooge to wriggle out of his liability.
38. In my considered opinion, such an inference cannot be drawn from the evidence of P.W.1, who has been consistent in his deposition that he has been ready and willing to perform his part of the contract and at no point of time he ever prayed time to perform his part of the contract.
39. In fact, D.W.1 in his deposition candidly and categorically admitted that he never took steps to get the property measured. That fact also was adverted to by the trial Court and accordingly found fault with the defendant. Hence, in this view of the matter, I am of the considered view that absolutely there is no merit in this appeal and accordingly, it has to be dismissed.
40. The law is well settled that the plaintiff should be always ready and willing to perform his part of the contract and even for certain period he was not ready to perform his part of the contract, then it would boomerang as against his claim for specific performance.
41. Even though on the defendant's side it was contended that the plaintiff did not express his readiness and willingness to perform his part of the contract, nevertheless, the evidence betoken otherwise.
42. After the emergence of Ex.A1-the agreement to sell dated 20.9.2004, Ex.A2-the advocate notice dated 30.7.2005 was first issued by the plaintiff and it is not as though the defendant called upon the plaintiff to get the contract performed at the earliest point of time. However, the response of the defendant is found exemplified in Ex.A3-the reply notice dated 17.8.2005, which would demonstrate and cannote that even in that notice, he did not express his readiness to get the property measured, but on the other hand, his expectation was that even without measuring the property and handing over the original deeds etc., the plaintiff should have parted with a sum of Rs.95,000/- per acre as additional advance or part of the sale consideration. Such a contention in Ex.A3 is not having the back up of the law. In fact, Ex.A4-the Advocate notice dated 18.9.2005 would convey and project that the plaintiff was always ready and willing to perform his part of the contract even by foregoing the requirement that the defendant should measure the property. In fact, Ex.A4 would highlight and portray that the plaintiff was ready to get the sale deed executed as per Ex.A1 dated 20.9.2004. However, the response from the defendant side was not to execute the sale deed, but to cancel it unilaterally, as found exemplified in Ex.A6-the letter sent by the defendant to the plaintiff dated 25.9.2005. In my considered opinion, the conduct of the defendant would pellucidly and palpably show that he was not willing to sell the suit property in favour of the plaintiff and because of that alone, he delayed the process, for which, the plaintiff cannot be found fault with.
43. The plaintiff filed the suit as early as on 28.11.2005, so to say, a year and two months from the date of emergence of Ex.A1, which in my opinion can never be labelled or dubbed as a delayed action on the part of the plaintiff.
44. Ex.A2-the plaintiff's notice dated 30.7.2005 emerged within a period of ten months from the emergence of Ex.A1 expressing his eagerness to get the sale deed executed. However, the defendant would try to explain his conduct by stating as though orally he entreated and implored the plaintiff to come and get the sale deed executed, but it was the plaintiff who delayed the process, for which absolutely there is no molecular or miniscule evidence,
45. The preponderance of probabilities would govern the adjudication in civil cases. Accordingly, if viewed the records bespeak and betoken that it was the plaintiff who has been entreating and imploring the defendant to perform his part of the contract and even at one point of time he went to the extent of parting with his money and get the sale deed executed without imposing any pre condition based on Ex.A1 and even for that the defendant was not willing to comply with. Hence, in such a case, the trial Court correctly appreciated the evidence available on record and decided the lis, warranting no interference in appeal. Accordingly, the points are decided in favour of the plaintiff and as against the defendant as under:
The trial Court took into consideration properly the fact that the plaintiff was ready and and willing to perform his part of the contract and also correctly held that the defendant was not ready to measure the suit property, as per the agreement to sell. The trial Court also took into account the pass-books and the income tax returns marked in the case for holding that the plaintiff was having financial wherewithal to perform his part of the contract.
46. In the result, the appeal stands dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.
Msk To The Additional District Judge cum Fast Track Court No.I, Chengalpattu