Madras High Court
M.Krishnan vs C.Jawahar on 10 May, 2023
Author: Abdul Quddhose
Bench: Abdul Quddhose
S.A.(MD).No.48 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 26.04.2023
Pronounced on : 10.05.2023
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD).No.48 of 2017
and
C.M.P.(MD).No.1111 of 2017
M.Krishnan ... Appellant/Appellant/Defendant
Vs.
C.Jawahar
Now working as Assistant,
Canara Bank,
Authoor Branch,
Tuticorin District. ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, to
set aside the judgment and decree dated 15.06.2016 passed in A.S.No.78 of
2015 on the file of the Principal District Judge, Tirunelveli, confirming the
judgment and decree dated 24.03.2015 passed in O.S.No.136 of 2012 on the
file of the Additional Sub Court, Tirunelveli by allowing this Second Appeal.
For Appellant : Mr.V.Meenakshisundaram
For Respondent : Mr.M.Ajmal Khan
Senior Counsel
for Mr.G.Prabhu Rajadurai.
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S.A.(MD).No.48 of 2017
JUDGMENT
This Second Appeal has been filed challenging the concurrent findings of the Courts below. The defendant in the suit O.S.No.136 of 2012 on the file of the Additional Sub Court, Tirunelveli is the appellant herein. The respondent is the plaintiff in the said suit.
2. The suit was filed for specific performance of an agreement of sale dated 21.02.2007 and the extension agreement dated 25.06.2009 entered into between the plaintiff and the defendant. In the forthcoming paragraphs, the parties are described as per their litigative status in the suit.
3. The defendant is the owner of the suit schedule property measuring 17 Acres and 19 cents in Survey Nos.1471/B/1B and 1472/2B, Gangaikondan Village, Tirunelveli District. The plaintiff entered into a sale agreement dated 21.02.2007 with the defendant under which he agreed to purchase the suit schedule property from the defendant for a total sale consideration of Rs.7,39,170/-. On the date of the agreement of sale, the plaintiff paid an advance of Rs.5,10,000/- and he agreed to pay the balance sale consideration of Rs.2,29,170/- and complete the sale within a period of one month from the date of the agreement. The plaintiff entered into another agreement with the defendant on 25.06.2009 and as per the said agreement, time for completion of 2/48 S.A.(MD).No.48 of 2017 the sale was extended to enable the defendant to get patta for the suit schedule property. On the date of the agreement dated 25.06.2009, the plaintiff paid an additional advance of Rs.1,50,000/- to the defendant and as per the agreement, the defendant agreed to obtain a patta in his name and on receipt of the balance sale consideration of Rs.79,170/-, he agreed to execute and register a sale deed in favour of the plaintiff within a period of one month thereafter. The plaintiff claims that he was always ready and willing to fulfil his obligations under the agreement of sale dated 21.02.2007 and the extension agreement dated 25.06.2009. According to him, since the defendant did not obtain the patta as agreed by him, the sale could not be completed. The plaintiff sent a legal notice to the defendant on 09.06.2012 calling upon the defendant to fulfil his part of the contract by executing a sale deed in favour of the plaintiff within a period of one month. According to the plaintiff, the defendant received the said legal notice on 11.06.2012, but he had not sent any reply. According to the plaintiff, only in those circumstances, he was constrained to file a suit for specific performance against the defendant.
4. However, according to the defendant, as seen from his written statement, the plaintiff was not ready and willing to complete the sale within the stipulated time as fixed under the agreement of sale dated 21.02.2007. According to the defendant, in a hurried manner, the suit was filed without 3/48 S.A.(MD).No.48 of 2017 giving an opportunity for the defendant to reply to the legal notice of the plaintiff dated 09.06.2012. According to the defendant, it was only the plaintiff, who had approached the defendant on 25.06.2009 seeking for extension of time to complete the sale and therefore, the plaintiff was not always ready and willing to perform his part of the contract as per the agreement of sale dated 21.02.2007 by completing the sale within a period of one month from that date.
5. Based on the pleadings of the respective parties, the Trial Court framed the following issues:
a) Whether the plaintiff is entitled for the relief of specific performance as prayed for in the plaint?
b) As to what other reliefs the plaintiff is entitled there to?
6. Before the Trial Court, four documents were filed on the side of the plaintiff, which were marked as Exhibits A1 to A4. The documents marked as exhibits on the side of the plaintiff are as follows:
Exhibit No. Date Description
Ex.A1 21.02.2007 Agreement of sale entered into
between the plaintiff and the
defendant.
Ex.A2 25.06.2009 Extension agreement entered into
between the plaintiff and the
defendant.
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S.A.(MD).No.48 of 2017
Ex.A3 09.06.2012 Legal notice issued by the plaintiff
to the defendant.
Ex.A4 11.06.2012 Acknowledgement card from the
defendant for having received the
legal notice dated 09.06.2012.
The plaintiff himself was examined as a witness (P.W.1). No documents were filed on the side of the defendant and the defendant was examined as D.W.1.
7. The Trial Court, namely, the Additional Sub Court, Tirunelveli by its judgment and decree dated 24.03.2015 in O.S.No.136 of 2012 decreed the suit for specific performance as prayed for by the plaintiff in the suit by giving the following findings:
a) The statement of the defendant that only under compulsion of the plaintiff, he had signed the extension agreement dated 25.06.2009 is unbelievable.
b) The defendant has not proved through proper evidence that only under compulsion of the plaintiff, he was forced to sign the extension agreement dated 25.06.2009.
c) The defendant is not an ordinary person as he is a seasoned lawyer and therefore, his statement that he was compelled to sign the extension agreement dated 25.06.2009 is unbelievable.
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d) The defendant has undertaken as per the extension agreement dated 25.06.2009 (Ex.A2) that he shall obtain the patta in his name for the suit schedule property within one month from the date of the extension agreement, i.e., from 25.06.2009 and after obtaining patta and on receipt of the balance sale consideration of Rs.79,170/-, he shall execute a sale deed for the suit schedule property in favour of the plaintiff.
e) During the course of his cross-examination, the defendant (D.W.1) has admitted that he has filed a suit before the I Additional District Court, Tirunelveli in O.S.No.162 of 2007 seeking for declaration that he is the absolute owner of the suit schedule property and also for a mandatory injunction to direct the competent authorities to issue a patta in his name for the suit schedule property. The suit O.S.No.162 of 2007 was partly decreed in favour of the defendant and the I Additional District Court, Tirunelveli had granted the declaratory relief in favour of the defendant, but rejected his request for grant of patta in respect of the suit schedule property.
f) As per the extension agreement dated 25.06.2009 (Ex.A2), the defendant has agreed to obtain a patta in his name and on receipt of the same, the plaintiff on payment of the balance sale consideration of Rs.79,170/- to the defendant has agreed to get a sale deed executed in his name within a period of 6/48 S.A.(MD).No.48 of 2017 one month from the date when the defendant obtains patta for the suit schedule property in his name. Since the defendant has not obtained patta in his name as per the extension agreement dated 25.06.2009 (Ex.A2), the suit filed by the plaintiff in O.S.No.136 of 2012 on 25.06.2012 is within the period of limitation as the said suit has been filed on the last date of limitation, i.e., on 25.06.2012.
g) The defendant himself has admitted in his oral evidence that he had filed a suit in O.S.No.162 of 2007 on the file of the I Additional District Court, Tirunelveli seeking for a direction to issue a patta in his favour for the suit schedule property. The defendant has also not till date obtained patta for the suit schedule property in his name. Hence, the contention of the defendant that the plaintiff was not ready and willing to perform his part of the contract by paying the balance sale consideration and getting a sale deed executed in his name is unbelievable.
h) The plaintiff had sent a legal notice dated 09.06.2012 (Ex.A3) through his lawyer calling upon the defendant to execute a sale deed in favour of the plaintiff on receipt of the balance sale consideration of Rs.79,170/- and despite receipt of the said notice, the defendant has not replied to the same. Based on the oral and documentary evidence available on record, the plaintiff has been able to prove that he was always ready and willing to perform his part of the contract as per the agreement of sale dated 21.02.2007 (Ex.A1) and the 7/48 S.A.(MD).No.48 of 2017 extension agreement dated 25.06.2009 (Ex.A2).
i) As seen from the oral and documentary evidence available on record, the plaintiff was having the means to pay the balance sale consideration of Rs.79,170/- to the defendant.
j) As the plaintiff was always ready and willing to perform his part of the contract, there is no reason why the plaintiff, who is not a defaulting party, should not be allowed to reap the benefit of the manifold increase in the price of the suit schedule property.
8. Aggrieved by the judgment and decree of the Trial Court, namely, the Additional Sub Court, Tirunelveli passed in O.S.No.136 of 2012 on 24.03.2015, the defendant filed a first appeal before the Principal District Court, Tirunelveli in A.S.No.78 of 2015. The Lower Appellate Court by its judgment and decree dated 15.06.2016 in A.S.No.78 of 2015 confirmed the findings of the Trial Court, namely, the Additional Sub Court, Tirunelveli in its judgment and decree dated 24.03.2015 passed in O.S.No.136 of 2012, by dismissing the first appeal filed by the defendant . Aggrieved by the judgment and decree dated 15.06.2016 passed in A.S.No.78 of 2015 by the Principal District Court, Tirunelveli, this Second Appeal has been filed by the defendant in the suit O.S.No.136 of 2012 on the file of the Additional Sub Court, Tirunelveli.
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9. This Court on 08.02.2017 admitted the Second Appeal by formulating the following substantial questions of law:
"a) Whether the Courts below are correct in decreeing the suit for specific performance when the respondent/plaintiff failed to prove his readiness and willingness specifically during the period between 21.02.2007 to 25.06.2009 inspite of specific defence on that aspect has been taken by the appellant/defendant in his written statement?
b) Whether the suit for specific performance filed by the respondent/plaintiff can be decreed when he has failed to prove continuous readiness and willingness to perform his part of the contract from the date of agreement till the date of hearing of the suit when the settled law is even if for a single day, the plaintiff agreement holder is not ready to take the sale deed, the equitable remedy of specific performance shall not be granted?
c) When the respondent/plaintiff filed the suit for specific performance nearly after a period of five years, it is not a mere delay but it is a case of total inaction on the part of the respondent/plaintiff and considering the substantial raise in price is it not brought the situation as inequitable to grant the relief of specific performance by the Courts below?
9/48 S.A.(MD).No.48 of 2017
d) Whether the Courts below have failed to hold that Ex.A.2 the deed of extension of time to execute the sale deed is void on account of vagueness and uncertainty since no time has been fixed for obtaining patta by the appellant?
e) Whether the respondent/plaintiff is entitled to get decree in the absence of mandatory pleadings regarding readiness and willingness as required under Order 6 Rule 3 C.P.C and Section 16(c) of the Specific Relief Act?"
10. Heard Mr.V.Meenakshisundaram, learned counsel for the appellant and Mr.M.Ajmal Khan, learned Senior Counsel for the respondent.
11. The learned counsel for the appellant/defendant submitted as follows:
a) It is mandatory under the old Specific Relief Act before the recent amendment that the plaintiff in the suit for specific performance is mandated “to aver and prove” his readiness and willingness to fulfil his part of the contract right from the date of the agreement to the date of filing of the suit and at every stage of the suit proceedings. He would submit that in the present case, it is to be noted that the main agreement Ex.A1 was entered into on 21.02.2007 and the time fixed for performance was one month, i.e., on or before 21.03.2007. The extension agreement was entered into on 25.06.2009 (Ex.A2). According to him, between this period, i.e., from 21.03.2007 to 10/48 S.A.(MD).No.48 of 2017 25.06.2009, the plaintiff has not produced any piece of evidence to establish that he contacted the defendant for completion of the sale by paying the balance sale consideration and getting a sale deed executed in his favour by the defendant .
b) Under Ex. A1 agreement dated 21.02.2007, there is no burden on the defendant to get mutation of patta for the suit schedule property in his name. Therefore, the plaintiff is duty bound to establish his readiness and willingness to perform his part of the contract between 21.03.2007 and 25.06.2009.
c) The extension agreement dated 25.06.2009 (Ex.A2) was entered into between the plaintiff and the defendant and there is a specific clause regarding mutation of patta on the side of the defendant. But according to the learned counsel for the appellant, right from the date of extension agreement (Ex.A2), i.e., 25.06.2009, till the date of issuance of pre-suit notice (Ex.A3), i.e., 09.06.2012, there is no evidence placed on record by the plaintiff to establish that he was always ready and willing to perform his part of the contract. Moreover, the learned counsel for the appellant would submit that the suit was filed only on the last date of limitation, i.e., on 25.06.2012 and in such a background, there is no iota of evidence to prove that the plaintiff was always ready and willing to perform his part of the contract.
d) After drawing the attention of this Court to the deposition of the 11/48 S.A.(MD).No.48 of 2017 defendant (D.W.1), the learned counsel for the appellant would submit that it is to be noted that the defendant (D.W.1) in his deposition has referred to O.S.No.162 of 2007, but those documents were not marked even during the cross-examination of D.W.1. In such circumstances, he would submit that both the Courts below were not correct in decreeing the suit for specific performance, which is purely a discretionary relief.
e) The grant of specific performance to the plaintiff against the defendant in respect of the suit schedule properties will cause great hardship to the plaintiff as the suit was filed nearly after five years after the date of initial agreement.
12. In support of his contentions, the learned counsel for the appellant drew the attention of this Court to the following authorities:
a) N.P.Thirugnanam (Dead) by LRs Vs. Dr.R.Jagan Mohan Rao and others reported in (1995) 5 SCC 115
b) K.S.Vidyanadam and others Vs. Vairavan reported in AIR 1997 SC 1751
c) Gobind Ram Vs. Gian Chand reported in (2000) 7 SCC 548
d) Kamal Kumar Vs. Premlata Joshi and others reported in 2019 (1) MWN (Civil) 334
e) A judgment of the Division Bench of the Madras High Court in the 12/48 S.A.(MD).No.48 of 2017 case of T.R.Murugesan Vs. S.Balakrishnan and others reported in 2018 (6) CTC 56
f) A decision of the Hon'ble Supreme Court in the case of Desh Raj and others Vs. Rohtash Singh reported in 2023 (1) MWN (Civil) 403.
13. Per contra, the learned Senior Counsel for the respondent/plaintiff would submit as follows:
a) Subsequent to the agreement of sale dated 21.02.2007 (Ex.A1), the defendant filed a suit in O.S.No.162 of 2007 on the file of the I Additional District Court, Tirunelveli for declaration and mandatory injunction to mutate the patta in his name. The suit was partly allowed and the relief of declaration was granted, but however, the relief of mandatory injunction was denied. The defendant has admitted the same in his cross-examination. As the defendant was unable to discharge his contractual obligation as the patta still stood in the name of his father, he approached the plaintiff for extension of time and signed the extension agreement dated 25.06.2009 (Ex.A2).
b) The execution of the agreements Ex.A1 and Ex.A2 dated 21.02.2007 and 25.06.2009 respectively are admitted by both the parties and the recitals in Ex.A2 (25.06.2009) reflects that the defendant approached the plaintiff for extension of time as he was unable to fulfil his part of the contractual obligation in obtaining patta in his name before completing the conveyance of the 13/48 S.A.(MD).No.48 of 2017 property. The defendant's recitals in Ex.A2 ratifies the time period between Ex.A1 and Ex.A2.
c) The plaintiff was always ready and willing to perform his part of the contract as he is a man of means, who had paid the substantial part of the sale consideration in furtherance of the sale agreement and only a meagre sum of Rs.79,170/- was remaining unpaid for want of patta, which was also subsequently deposited to the credit of the suit. The plaintiff has also purchased few other properties from the very same defendant between the years 2007 and 2008. The agreement of Sale, dated 21.02.2007 (Ex.A1), which is the subject matter of this Second Appeal was also entered into during the very same period. Hence, it is clear that the plaintiff was always ready and willing to perform his part of the contract, but on the other hand, it was only the defendant, who had committed breach of contract by not obtaining patta in his favour for the suit schedule property.
d) Since the plaintiff was always ready and willing to perform his part of the contract, the burden to prove his willingness will arise only when the defendant completes his contractual obligation by getting the patta mutated in his name. In furtherance of the agreement (Ex.A1), the defendant had filed a suit which was unsuccessful, after which the agreement to extend time (Ex.A2) was entered into by the plaintiff. As there is a specific recital in the subsequent 14/48 S.A.(MD).No.48 of 2017 agreement, it casts the initial obligation upon the defendant. The obligation of the plaintiff to pay the balance sale consideration arises only if and when the defendant gets patta in his name and not earlier.
e) Article 54 of the Limitation Act, 1963 stipulates that the time period within which a suit for specific performance can be filed. The three years period begins to run from the date fixed for the performance or if no such date is fixed, when the plaintiff notices that the performance is refused. The parties entered into an agreement to extend the time on 25.06.2009 and the plaintiff was expecting the defendant to discharge his obligation till the penultimate end of the limitation period. However, the defendant failed to perform his part of the contract by mutating the patta in his name and as a result of the same, the plaintiff was forced to file a suit in the far end of the limitation period, i.e., on 25.06.2012. Since the plaintiff has fulfilled his part of the contract, the Courts below have rightly granted the relief of specific performance in his favour.
14. In support of the plaintiff's contentions, the learned Senior Counsel for the respondent/plaintiff relied upon the following authorities:
a) R.Lakshmikantham Vs. Devaraji reported in (2019) 8 SCC 62
b) Gaddipati Divija and another Vs. Pathuri Samrajyam and others reported in 2023 LiveLaw (SC) 327 15/48 S.A.(MD).No.48 of 2017
c) Navaneethammal Vs. Arjuna Chetty reported in (1996) 6 SCC 166.
Discussion:
15. Before deciding the issue as to whether the Courts below were right in granting the relief of specific performance in favour of the plaintiff, the following undisputed facts will have to be noted:
a) The execution of the agreement of sale dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2) have not been disputed by both the plaintiff as well as the defendant.
b) The total sale consideration of Rs.7,39,170/- payable to the defendant by the plaintiff for the purchase of the suit schedule property has not been disputed by the defendant.
c) The defendant acknowledges the receipt of the advance of Rs.5,10,000/- from the plaintiff towards part of the sale consideration on the date of the agreement of sale, i.e., on 21.02.2007.
d) The defendant also does not dispute having received a sum of Rs.1,50,000/- as further advance on the date of the extension agreement dated 25.06.2009 (Ex.A2).
e) The balance sale consideration payable by the plaintiff to the defendant out of the total sale consideration of Rs.7,39,170/- is only Rs. 79,170/-.
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f) The defendant admits in his deposition that he had filed a suit subsequent to the agreement dated 21.02.2007 (Ex.A1) in O.S.No.162 of 2007 seeking for declaration of his title and also for issuance of patta in his name. It is also an undisputed fact that the suit O.S.No.162 of 2007 was only partly decreed in favour of the defendant as the Court had granted in favour of the defendant only the relief of declaration, but had rejected the relief of issuance of patta in favour of the defendant.
g) The defendant in his written statement has not pleaded whether he is ready and willing to refund to the plaintiff the total advance amount of Rs.6,60,000/- received by him but at the same time he says that the plaintiff was not ready and willing to complete the sale by paying the balance sale consideration of Rs.79,170/- within the stipulated time.
h) It is an admitted fact that out of the total sale consideration of Rs.7,39,170/-, the plaintiff has paid Rs.6,60,000/-, which works out to 89% of the total sale consideration leaving a balance of only a meagre sum of Rs.79,170/- to be paid by him.
i) The defendant under the extension agreement dated 25.06.2009 (Ex.A2) has admittedly agreed to obtain a patta for the suit schedule property in his name and after the defendant obtains the same, the plaintiff has agreed to get the sale deed for the suit schedule property executed in his name by paying 17/48 S.A.(MD).No.48 of 2017 the balance sale consideration of Rs.79,170/- to the defendant within a period of one month thereafter. Though the defendant may contend that he was compelled to sign the extension agreement dated 25.06.2009 (Ex.A2), he has not pleaded in his written statement that the said extension agreement dated 25.06.2009 (Ex.A2) was obtained by the plaintiff through coercion, undue influence or by fraudulent means. There is also absolutely no evidence placed on record by the defendant to prove the same. It is also an admitted fact that the plaintiff after filing the suit for specific performance has deposited the balance consideration of Rs.79,170/- payable to the defendant under the agreement of Sale dated 21.02.2007 (Ex. A1) to the credit of the specific performance suit viz., O.S. No.136 of 2012 on the file of the Additional Sub Court, Tirunelveli.
j) Both the Courts below have exercised their discretion in favour of the plaintiff by granting the relief of specific performance and by holding that the plaintiff was always ready and willing to perform his part of the contract as he had paid the major part of the sale consideration and it was only the defendant, who had committed breach of contract by not obtaining the patta in his name as agreed upon by him under the extension agreement dated 25.06.2009 (Ex.A2).
k) The plaintiff has not sought for any alternate relief in the suit and has sought for only the relief of specific performance.
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16. The plaintiff in the plaint has averred that he was always ready and willing to perform his part of the contract by fulfilling his obligations contained in both the agreements, namely, the agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2). As the first agreement is dated 21.02.2007 (Ex.A1) and the extension agreement is dated 25.06.2009 (Ex.A2), the old Specific Relief Act prior to the amendment in the year 2018 applies.
(i) Section 16(c) of the old Specific Relief Act, 1963, envisages that the plaintiff must plead and prove that he was always ready and willing to perform his part of the contract to enable him to get the relief of specific performance. Section 16(c) of the old Specific Relief Act, 1963 reads as follows:
“16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person-
(c) 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 terms the performance of which has been prevented or waived by the defendant.”
(ii) The larger relief of specific performance is basically founded on equity considerations, such as conduct of the plaintiff, the element of hardship that may be caused to one of the parties, the availability of adequate alternative 19/48 S.A.(MD).No.48 of 2017 relief and such other matters, the Court deems fit to consider. The grant of specific performance by the Court is a discretionary relief. The explanation to Section 10 of the old Specific Relief Act also makes it clear that unless and until the contrary is proved, the Court shall presume that the breach of contract to transfer immovable property cannot be adequately compensated in terms of money. Section 10 of the old Specific Relief Act, 1963 reads as follows:
10. Cases in which specific performance of contract enforceable – Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the Court, be enforced -
(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.
Explanation- Unless and until the contrary is proved, the Court shall presume-
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:-
(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or 20/48 S.A.(MD).No.48 of 2017 consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.”
(iii) However, Section 20 of the old Specific Relief Act makes it clear that while granting the discretionary relief of specific performance, the discretion exercised by the Court should not be arbitrary, but sound and reasonable and guided by judicial principles. The explanation 1 to Section 20(2) of the old Specific Relief Act also makes it clear that mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage or hardship. Section 20(3) of the old Specific Relief Act also makes it clear that the Court can exercise its discretion to grant the relief of specific performance in favour of the plaintiff when he has done substantial acts or has suffered losses in consequence of a contract capable of specific performance.
Section 20(4) of the Act also makes it clear that the Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party. Section 20 of the old Specific Relief Act is extracted hereunder:
“20. Discretion as to decreeing specific performance- (1) The jurisdiction to decree specific performance is discretionary, 21/48 S.A.(MD).No.48 of 2017 and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
(2) The following are cases in which the Court may properly exercise discretion not to decree specific performance-
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1 – Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2 – The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the 22/48 S.A.(MD).No.48 of 2017 contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.”
17. This Court will now have to examine and decide as to whether the Courts below have exercised their discretion properly and the reasons given by them for granting the relief of specific performance in favour of the plaintiff are sound and reasonable and guided by well settled judicial principles. The defendant has admitted the execution of both the agreements, namely, the agreement of sale dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2). Eventhough in his written statement as well as in his deposition, he may state that only under compulsion, he had to sign the extension agreement dated 25.06.2009 (Ex.A2), there is absolutely no evidence placed on record by the defendant to prove that the extension agreement dated 25.06.2009 (Ex.A2) was obtained by the plaintiff from the defendant through coercion, undue influence or by fraudulent means. There is also no pleading in 23/48 S.A.(MD).No.48 of 2017 the written statement that the plaintiff had obtained the extension agreement dated 25.06.2009 (Ex.A2) from the defendant through coercion, undue influence or by fraud. Under the extension agreement dated 25.06.2009 (Ex.A2), the defendant has agreed to obtain a patta for the suit schedule property in his name and the plaintiff has agreed to get a sale deed executed in his name by the defendant on payment of the balance sale consideration of Rs.79,170/- within a period of one month from the date when the defendant obtains a patta for the suit schedule property in his name. The defendant (D.W.1) has also admitted in his cross-examination that subsequent to the first agreement, namely, the agreement of sale dated 21.02.2007 (Ex.A1), he had filed a suit in O.S.No.162 of 2007 seeking for a declaratory relief to declare that the defendant is the absolute owner of the suit schedule property and in the very same suit, he had also sought for a direction to the competent authorities to issue patta for the suit schedule property in his name. The defendant has also admitted in his deposition that the Court had granted the declaratory relief in O.S.No.162 of 2007, but rejected the relief of issuance of patta in his favour. Therefore, though in the agreement of sale dated 21.02.2007 (Ex.A1), there is no specific undertaking given by the defendant that he shall obtain a patta in his name for the suit schedule property, which is a condition precedent for completion of the sale by the plaintiff within a period of one month, it can be 24/48 S.A.(MD).No.48 of 2017 conclusively inferred that the defendant had infact undertaken to obtain a patta in his favour after entering into the agreement of sale dated 21.02.2007 (Ex.A1) and if not for the said fact, there was no necessity for the defendant to file a suit in O.S.No.162 of 2007 seeking for directions from the Court to the competent authorities to issue a patta in his favour subsequent to the date of the sale agreement, i.e., on 21.02.2007 (Ex.A1). If there was no reciprocal promise under the agreement of sale dated 21.02.2007 (Ex.A1) on the part of the defendant, there was no necessity for him to file a suit O.S.No.162 of 2007 seeking for issuance of patta immediately after the date of the sale agreement (Ex.A1), i.e., 21.02.2007. Infact, the relief sought for by the defendant in O.S.No.162 of 2007 also included the relief of declaration of title of the defendant over the suit schedule property. Unless and until there was a cloud over the title of the suit schedule property, the necessity for the defendant to file a suit O.S.No.162 of 2007 for the relief sought for therein as referred to supra would not have arisen. Section 57 of the Indian Evidence Act empowers the Court to take judicial notice of certain facts and one of them is concerning facts which cannot be doubted at any stretch of imagination. Being a Court decree passed in O.S.No.162 of 2007 and that too, when the defendant has admitted in his deposition about the passing of the said decree and has also admitted that he filed the said suit only after the agreement of sale dated 21.02.2007 (Ex.A1), 25/48 S.A.(MD).No.48 of 2017 the defendant cannot now contend that since the judgment and decree passed in O.S.No.162 of 2007 was not marked as an exhibit, the plaintiff cannot rely upon the same.
18. The necessity to enter into an extension agreement dated 25.06.2009 (Ex.A2) has arisen only for the following reasons as seen from the pleadings of the respective parties and the evidence available on record:
a) The suit O.S.No.162 of 2007 filed by the defendant after entering into the agreement of sale dated 21.02.2007 (Ex.A1) was only partly decreed in favour of the defendant as the Court in the said suit had granted only the declaratory relief in favour of the defendant, but has rejected the relief for issuance of direction to the competent authorities to issue patta for the suit schedule property in favour of the defendant.
b) It can be inferred from the evidence available on record that only due to the fact that the defendant did not obtain patta in his name for the suit schedule property, the plaintiff could not complete the sale within a period of one month as agreed by him under the agreement of sale dated 21.02.2007 (Ex.A1), which necessitated him to enter into an extension agreement with the defendant dated 25.06.2009 (Ex.A2) under which, the plaintiff has agreed to get a sale deed executed in his favour within a period of one month from the date when the defendant obtains a patta for the suit schedule property in his name. 26/48 S.A.(MD).No.48 of 2017
c) When the total sale consideration is Rs.7,39,170/- and the plaintiff has admittedly paid 89% of the total sale consideration to the defendant leaving a balance of only a meagre sum of Rs.79,170/- payable to the defendant from the evidence available on record, it can be conclusively inferred that only due to the fact that the defendant did not obtain patta in his name for the suit schedule property as undertaken by him under the extension agreement dated 25.06.2009 (Ex.A2), the plaintiff was unable to complete the sale by getting a sale deed executed in his favour by the defendant on payment of the balance sale consideration of Rs.79,170/-. The evidence available on record also makes it undoubtedly clear that the plaintiff was always ready and willing to perform his part of the obligations under the agreement of sale dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2).
d) On the date of the extension agreement dated 25.06.2009 (Ex.A2), the defendant has also received an additional advance of Rs.1,50,000/- from the plaintiff towards part of the total sale consideration. If the defendant's contention that the plaintiff did not contact the defendant between the date of the first agreement (Ex.A1) dated 21.02.2007 and the date of the extension agreement (Ex.A2) dated 25.06.2009 for the purpose of getting the sale deed registered in the name of the plaintiff has to be believed, there was no necessity for the defendant to receive an additional advance of Rs.1,50,000/- on the date 27/48 S.A.(MD).No.48 of 2017 of the extension agreement, i.e., 25.06.2009 (Ex.A2), which goes to prove that even under the first agreement dated 21.02.2007 (Ex.A1), the defendant had undertaken to obtain patta for the suit schedule property in his name to enable the plaintiff to complete the sale. Though the said condition has not been specifically incorporated in the sale agreement dated 21.02.2007 (Ex.A1), the filing of the suit O.S.No.162 of 2007 by the defendant subsequent to the sale agreement dated 21.02.2007 (Ex.A1) seeking for issuance of patta in his name makes it clear that the defendant had agreed to obtain a patta for the suit schedule property in his name even under the agreement of sale dated 21.02.2007 (Ex.A1) and the production of the patta is a condition precedent for completion of the sale by the plaintiff within a period of one month as agreed upon by the plaintiff under the agreement of sale dated 21.02.2007 (Ex.A1).
e) No prudent and a bonafide purchaser will pay a major portion of the sale consideration and remain silent. In the case on hand, the plaintiff has paid 89% of sale consideration leaving a meagre balance of only Rs.79,170/- payable. When there is no evidence placed on record by the defendant and that too, when the conduct of the defendant, namely, he filing a suit O.S.No.162 of 2007 subsequent to the date of the sale agreement, i.e., 21.02.2007 (Ex.A1), seeking for issuance of patta in his name and undertaking to obtain a patta in his name for the suit schedule property under the extension agreement dated 28/48 S.A.(MD).No.48 of 2017 25.06.2009 (Ex.A2) will make it undoubtedly clear that the plaintiff was always ready and willing to perform his obligations under the sale agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2), but only due to the fact that the patta was not obtained by the defendant for the suit schedule property, the plaintiff did not pay the balance meagre sale consideration of Rs.79,170/- to the defendant and get the sale deed executed in his favour. Just because there was no written communication from the plaintiff between the date of the sale agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2) and from that date till the issuance of the pre-suit legal notice dated 09.06.2012 (Ex.A3) calling upon the defendant to execute the sale deed in favour of the plaintiff, will not imply that the plaintiff was not ready and willing to perform his part of the contract. The surrounding circumstances, namely, the filing of the suit by the defendant seeking for issuance of patta in his favour and signing the extension agreement dated 25.06.2009 (Ex.A2) will conclusively prove that it was only due to the delay on the part of the defendant in obtaining the patta in his name, the plaintiff could not complete the sale as per the agreement of sale dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2).
f) While exercising discretion whether to grant the relief of specific performance or not, the Court will have to see the conduct of both the plaintiff 29/48 S.A.(MD).No.48 of 2017 and the defendant. In the case on hand, as seen from the evidence available on record, it is clear that the plaintiff has been able to prove that he was always ready and willing to perform his part of his obligations under both the contracts, namely, the sale agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2) as he has already paid the major part of the sale consideration, i.e., 89% of the total sale consideration and only due to the fact that the defendant was unable to obtain the patta in his name for the suit schedule property, the sale could not be completed by the plaintiff. As seen from the evidence available on record, the conduct of the plaintiff has been blemishless. The refusal to execute a sale deed by the defendant in favour of the plaintiff after receiving 89% of the sale consideration, that too, when admittedly he has not obtained patta in his name for the suit schedule property till date despite having agreed to get the same will clearly go to show the deliberate intention of the defendant not to fulfil his part of his obligations under both the contracts, namely, the sale agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2). The defendant in his written statement as well as in his deposition has also not expressed his willingness to refund the advance amount which amounts to 89% of the total sale consideration to the plaintiff, which would clearly prove that the defendant has unlawfully retained an amount of Rs.6,60,000/- paid by the plaintiff 30/48 S.A.(MD).No.48 of 2017 towards substantial portion of the sale consideration, which will amount to unjust enrichment. If the defendant's claim that the plaintiff was not ready and willing to perform his part of the contract as per the agreement dated 21.02.2007 (Ex.A1) by completing the sale within a period of one month from that date by paying the balance sale consideration is to be believed, the defendant would have refunded the advance amount of Rs.5,10,000/- received from the plaintiff after adjustment of the defendant's losses immediately on the expiry of the one month period fixed for the plaintiff to complete the sale under the sale agreement dated 21.02.2007 (Ex.A1). The conduct of the defendant in retaining the sale consideration of Rs.6,60,000/- out of the total sale consideration of Rs.7,39,170/- till date even after both the Courts below have concurrently held that the plaintiff is entitled for the relief of specific performance will go to prove that the plaintiff was always ready and willing to perform his part of the contract as per the sale agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2) and complete the sale, but it was only the defendant who had committed breach of contract by not obtaining patta in his name and by not executing a sale deed for the suit schedule property as per the agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2) in favour of the plaintiff or his nominee. Both the Courts below have exercised their discretion correctly in 31/48 S.A.(MD).No.48 of 2017 granting the relief of specific performance in favour of the plaintiff by giving sound and justifiable reasons and they have been guided by well settled judicial principles, which does not call for any interference by this Court.
19. Whether the time is the essence of the contract has to be culled out from the reading of the contract as well as from the surrounding circumstances. Merely having an explicit clause may not be sufficient to make the time the essence of the contract.
20. In the sale agreement dated 21.02.2007 (Ex.A1), it has been stipulated that the plaintiff will have to complete the sale by paying the balance sale consideration within a period of one month. However, the surrounding circumstances including the signing of the extension agreement dated 25.06.2009 (Ex.A2) as well as the fact that the defendant has filed a suit in O.S.No.162 of 2007 subsequent to the date of the sale agreement (Ex.A1), i.e., 21.02.2007, seeking for issuance of patta in his favour for the suit schedule property makes it clear that time was not the essence of the contract as only after obtaining a patta for the suit schedule property in the name of the defendant, the plaintiff was under an obligation to pay the balance sale consideration of Rs.79,170/- and get a sale deed executed in his favour from the 32/48 S.A.(MD).No.48 of 2017 defendant. Since the defendant did not obtain a patta in his name for the suit schedule property as per the extension agreement dated 25.06.2009 (Ex.A2), the suit filed by the plaintiff on 25.06.2012 is within the period of limitation, i.e., it has been filed within the three year period as per Article 54 of the Limitation Act from the date when the plaintiff came to know that the defendant is deliberately avoiding to obtain a patta in his name and execute a sale deed in favour of the plaintiff thereafter.
21. Admittedly, all the defences that have been raised by the defendant in the written statement have been considered by the Courts below in a correct manner only based on the pleadings, oral and documentary evidence available on record and the decree for specific performance has been rightly granted in favour of the plaintiff only by giving sound and justifiable reasons which are guided by well settled judicial principles. The issue framed by the Trial Court as to whether the plaintiff is entitled to the suit relief obviously covers the issue as to whether the plaintiff is entitled for the relief of specific performance and was he always ready and willing to perform his part of the contract. The main object of framing issues is to ascertain the real dispute between the parties by narrowing down the area of conflict and determine where the parties differ. The evidence placed on record are also confined only to the issue as to whether the 33/48 S.A.(MD).No.48 of 2017 relief of specific performance can be granted in favour of the plaintiff or not. The judgment of the Courts below have also analyzed the pleadings and the evidence available on record in a proper manner and have come to the right conclusion that the plaintiff is entitled for specific performance. The issue framed by the Trial Court cannot be considered irrelevant and going beyond the scope of the suit. Therefore, the contention of the learned counsel for the appellant/defendant that the issues framed by the Trial Court is not proper has to be rejected by this Court. Having answered all the issues raised by the defendant in his written statement as well as in his deposition in a correct manner based on well settled judicial principles, this Court cannot find fault with the discretion exercised by the Courts below in granting the relief of specific performance in favour of the plaintiff.
22. (i) The learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in the case of V.S.Ramakrishnan Vs. P.M.Muhammed Ali reported in 2022 LiveLaw (SC) 935, wherein, it was held that there must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. In the instant case, the defendant is aware that he will be able to succeed only if he is able to disprove 34/48 S.A.(MD).No.48 of 2017 the contention of the plaintiff that he was always ready and willing to perform his part of the contract. As seen from his deposition, the defendant has attempted to disprove the contention of the plaintiff that he was always ready and willing to perform his part of the contract, but despite the said attempt, the defendant has miserably failed to prove that the plaintiff was not ready and willing to perform his part of the contract. In the case on hand, no iota of evidence is available on record to show that the plaintiff did not have the means to pay the balance sale consideration at any point of time and he was also not willing to get the sale deed obtained in his favour by paying the balance sale consideration to the defendant. However, in the decision relied upon by the learned counsel for the appellant referred to supra, the plaintiff therein had committed default by not paying the balance sale consideration of Rs.35,00,000/- as the postal cheque issued by him for the said amount returned dishonoured. In the instant case, the plaintiff never committed any default in payment of the sale consideration as per both the contracts, namely, the contract dated 21.02.2007 (Ex.A1) and the contract dated 25.06.2009 (Ex.A2). Therefore, the decision relied upon by the learned counsel for the appellant referred to supra was a decision rendered based on different set of facts and therefore, has no applicability to the facts of the instant case. 35/48 S.A.(MD).No.48 of 2017
(ii) It has been made clear in the judgment of the Hon'ble Supreme Court in the case of N.P.Thirugnanam (Dead) by LRs Vs. Dr.R.Jagan Mohan Rao and others reported in (1995) 5 SCC 115 that continuous readiness and willingness on the part of the plaintiff is a condition precedent for grant of the relief of specific performance which the plaintiff must establish through evidence. It has also been made clear in the said decision that availability of consideration amount, conduct of the plaintiff and attending circumstances have also to be taken into account by the Court before adjudging readiness and willingness of the plaintiff. In the case on hand, the plaintiff has been able to prove that he was always ready and willing to perform his part of the contract and only due to the fact that the defendant did not obtain patta as per the extension agreement dated 25.06.2009 (Ex.A2), he was unable to get a sale deed executed in his favour by paying the balance sale consideration of Rs.79,170/- to the defendant. The conduct of the plaintiff and the attending circumstances and payment of 89% of the total sale consideration will undoubtedly draw inference that the plaintiff was always ready and willing to perform his part of the contract and it was only the defendant, who did not obtain patta in his name and was not willing to execute the sale deed in favour of the plaintiff by receiving the balance sale consideration. Therefore, the decision relied upon by the learned counsel for the appellant reported in (1995) 36/48 S.A.(MD).No.48 of 2017 5 SCC 115 referred to supra, in fact, supports the case of the plaintiff rather than the defendant.
(iii) In the next decision relied upon by the learned counsel for the appellant, namely, the decision of the Hon'ble Supreme Court in the case of K.S.Vidyanadam and others Vs. Vairavan reported in AIR 1997 SC 1751, the Hon'ble Supreme Court had held that delay coupled with substantial rise in price of properties would make it inequitable to give relief of specific performance to the purchaser. The said decision has no bearing for the facts of the present case as in the instant case, the oral and documentary evidence available on record makes it clear that only due to the fact that the defendant did not obtain patta for the suit schedule property in his favour, the plaintiff was unable to complete the sale. In the decision referred to supra, there was total inaction on the part of the purchaser for 2 ½ years in violation of the terms of the agreement to complete the sale and therefore, only under those circumstances, the Hon'ble Supreme Court held that delay coupled with substantial rise in prices of properties, it would be inequitable to grant the relief of specific performance to the purchaser. In the instant case, the plaintiff has been able to prove through oral and documentary evidence beyond reasonable doubt that he is always ready and willing to perform his part of the contract and 37/48 S.A.(MD).No.48 of 2017 therefore, the above referred decision of the Hon'ble Supreme Court does not apply to the facts and circumstances of the instant case.
(iv) As observed earlier, both the Courts below have exercised their discretion to grant the relief of specific performance in favour of the plaintiff and they have been guided by the principles of justice, equity and good conscience and therefore, the decision relied upon by the learned counsel for the appellant/defendant in the case of Gobind Ram Vs. Gian Chand reported in (2000) 7 SCC 548 has no bearing to the facts of the instant case.
23. The plaintiff has proved beyond any doubt through his pleadings and the oral and documentary evidence available on record that
a) There are two valid contracts, namely, the sale agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2) under which the defendant has agreed to sell the suit schedule property to the plaintiff.
b) Readiness and willingness always on his part to perform his part of the contract.
c) The defendant has committed breach of contract by not executing a sale deed in favour of the plaintiff by receiving the balance sale consideration. 38/48 S.A.(MD).No.48 of 2017
d) The plaintiff has proved that it will be equitable to grant the relief of specific performance in his favour and the hardship the plaintiff will face if specific performance is not granted in his favour will outweigh the hardship, the defendant may face by the grant of the relief of specific performance.
e)The plaintiff having proved through oral and documentary evidence that he is entitled for the relief of specific performance, the question of granting alternate relief in the form of refund of advance does not arise as the Courts below have rightly exercised its discretion guided by well settled judicial principles.
Only by applying the well settled judicial principles for grant of specific performance as laid down by the Hon'ble Supreme Court in the case of Kamal Kumar Vs. Premlata Joshi and others reported in 2019 (1) MWN (Civil) 334 relied upon by the learned counsel for the appellant/defendant, both the Courts below have exercised its discretion and have granted the relief of specific performance in favour of the plaintiff. In the decision of the Hon'ble Supreme Court in the case of Deshraj and others Vs. Rohtash Singh reported in 2023 (1) MWN (Civil) 403 relied upon by the learned counsel for the appellant/defendant, it has been made clear that alternative relief of refund of advance money is permissible where such a relief was specifically pleaded in the plaint. There is no necessity for this Court to consider the aforesaid 39/48 S.A.(MD).No.48 of 2017 decision, since the plaintiff has proved beyond any doubt through his pleadings, oral and documentary evidence that he is entitled for the relief of specific performance and therefore, the question of granting alternative relief will not arise.
24. The decision relied upon by the learned Senior Counsel for the respondent/plaintiff in the case of R.Lakshmikantham Vs. Devaraji reported in (2019) 8 SCC 62 makes it clear that merely on account of the delay in the filing of the suit for specific performance after the accrual of cause of action, it cannot be inferred that the plaintiff was not ready and willing to perform his part of the contract and that the suit is filed beyond the period of limitation. In the case on hand, the suit was filed within the period of limitation and the time was not the essence of the contract as under the extension agreement (Ex.A2), the plaintiff was under an obligation to pay the balance sale consideration to the defendant and get a sale deed executed in his favour only after the defendant obtains a patta in his name for the suit schedule property. Admittedly, the defendant is yet to obtain a patta in his name and therefore, the suit filed by the plaintiff on 25.06.2012 seeking for specific performance to enforce the sale agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2) is well within the period of limitation as 40/48 S.A.(MD).No.48 of 2017 per Article 54 of the Limitation Act. The decision relied upon by the learned Senior Counsel for the respondent in R.Lakshmikantham's case referred to supra supports the case of the respondent that by a mere delay in filing the suit after the accrual of the cause of action, it cannot be inferred against the plaintiff that he was not ready and willing to perform his part of the contract and therefore, the suit filed on 25.06.2012 is within the period of limitation.
25. In the case of Navaneethammal Vs. Arjuna Chetty reported in (1996) 6 SCC 166 relied upon by the learned Senior Counsel for the respondent, it has been made clear by the Hon'ble Supreme Court that interference with the concurrent findings of the Courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the Courts below. In the present case, the Courts below have rightly and concurrently held that the defendant has not produced patta and thus failed to fulfil his contractual obligation despite the plaintiff's readiness and willingness as per the sale agreement in Ex.A1 and the extension agreement in Ex.A2 and therefore, the concurrent findings of the Courts below requires no interference by this Court.
41/48 S.A.(MD).No.48 of 2017
26. In the pre-suit legal notice (Ex.A3) dated 09.06.2012, the plaintiff had called upon the defendant to execute the sale deed by obtaining patta within a period of one month from that date. Though the plaintiff had given one month time in the pre-suit notice dated 09.06.2012 (Ex.A3), it can be inferred from the surrounding circumstances from the oral and documentary evidence available on record that only out of anxiety to complete the sale, the plaintiff had requested the defendant to complete the sale within a period of one month from 09.06.2012 and therefore granting time for the defendant will not annul the terms and conditions of the agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2), which are sacrosanct as it is mandatory for both the parties to fulfil the terms and conditions contained therein. The reliance by the learned counsel for the appellant on the pre-suit legal notice dated 09.06.2012 in his contention that even though one month time was granted in the said pre-suit notice to the defendant to execute a sale deed in favour of the plaintiff, the suit was filed on 25.06.2012 even before the expiry of the one month period, will not alter the adjudication of the dispute as the sale agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2) are the only contracts, the terms of which have to be fulfilled by both the parties. Hence, the contention of the learned counsel for 42/48 S.A.(MD).No.48 of 2017 the appellant that the plaintiff having granted one month time under the pre-suit notice dated 09.06.2012, the plaintiff's suit filed on 25.06.2012 even before the expiry of the one month period is not maintainable has to be rejected by this Court.
27. The hardship of the plaintiff far outweighs the hardship of the defendant, in case specific performance is not granted in favour of the plaintiff .
a) Having always been ready and willing to perform his part of the contract and having paid 89% of the total sale consideration without committing any default under the expectation that the defendant will obtain a patta in his name and execute a sale deed thereafter within a period of one month and
b) the value of Rs.6,60,000/- which was paid by the plaintiff between 2007 and 2009 is phenomenal for that period and for no fault of the plaintiff, he cannot be deprived of specific performance on account of the alleged hardship caused to the defendant due to the rise in the price of the suit schedule property when it has been clearly established that only due to the breach of contract committed by the defendant, the plaintiff was unable to get the sale executed in his favour. The plaintiff would have faced anxious moments since despite having paid 89% of the total sale consideration and having fulfilled his 43/48 S.A.(MD).No.48 of 2017 part of his obligations under the Sale Agreement (Ex. A1), he was unable to get the Sale Deed executed and registered in his name by the defendant. Subsequently after the filing of the specific performance suit, he has also deposited the balance sale consideration of Rs.79,170/- payable to the defendant to the credit of the specific performance suit. Having paid the entire sale consideration and that too when the delay has occurred in the completion of the sale only due the fact that the defendant did not obtain a patta in his name for the suit property as undertaken under the extension agreement dated 25.06.2009(Ex.A2), the hardship faced by the plaintiff cannot be equated in terms of money. Justice can be done to the plaintiff only if the relief of specific performance is granted to him as was rightly granted by the Courts below. Having received 89% of the total consideration under the two agreements viz., Exs. A1 and A2, the defendant cannot wriggle out of the contracts when the plaintiff was always ready and willing to perform his part of his obligations and have not committed any breach of contract. Escalation in the price of the suit schedule property cannot be a ground for the defendant to escape the execution and registration of the sale deed for the suit schedule property in favour of the plaintiff as he has received 89% of the total consideration and the delay in completion of the sale was entirely due to his fault as he did not obtain patta for the suit schedule property as undertaken by him in the extension agreement 44/48 S.A.(MD).No.48 of 2017 dated 25.06.2009 (Ex. A2).
28. For the foregoing reasons, the substantial questions of law formulated by this Court on 08.02.2017 while admitting this Second Appeal have to be answered against the appellant/defendant by holding that
a) The Courts below were correct in decreeing the suit in favour of the plaintiff for specific performance as the respondent/plaintiff has proved through his pleadings, oral and documentary evidence that he was always ready and willing to perform his part of the contract both under the sale agreement dated 21.02.2007 (Ex.A1) and the extension agreement dated 25.06.2009 (Ex.A2).
b) The plaintiff was always ready and willing to perform his part of the contract from the date of the agreement till the date of filing of the suit and thereafter too.
c) Only due to the fact that the defendant did not obtain patta for the suit schedule property in his name, the plaintiff did not pay the balance sale consideration of Rs.79,170/- and get a sale deed executed in his name by the defendant.
d) The extension agreement (Ex.A2) is not vague as it makes it clear that the defendant will have to obtain patta for the suit schedule property in his name and the plaintiff within a period of one month from the date of obtaining 45/48 S.A.(MD).No.48 of 2017 the patta by the defendant by paying the balance sale consideration of Rs,79,170/- to the defendant will have to get the sale deed executed in his favour.
e) The plaint averments have satisfied the requirements of Section 16(c) of the old Specific Relief Act, 1963 as the plaintiff has made a specific averment in the plaint that he is always ready and willing to perform his part of the contract and he has also been able to prove through his pleadings, oral and documentary evidence that he was always ready and willing to perform his part of the contract.
29. In the result, this Court is of the considered view that there is no merit in this Second Appeal as the Courts below have rightly held that the respondent/plaintiff is entitled for the relief of specific performance as prayed for in the plaint. The substantial questions of law formulated by this Court while admitting this Second Appeal are therefore answered against the appellant/defendant. In fine, this Second Appeal is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition stands closed.
10.05.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Lm/vsi2
46/48
S.A.(MD).No.48 of 2017
To
1.The Principal District Court,
Tirunelveli.
2.The Additional Sub Court,
Tirunelveli.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
47/48
S.A.(MD).No.48 of 2017
ABDUL QUDDHOSE, J.
Lm
Judgment made in
S.A.(MD).No.48 of 2017
10.05.2023
48/48