Madras High Court
P.J.Ramkumar vs S.Yesodharan on 31 March, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.139 of 2000 1.P.J.Ramkumar 2.P.S.Alagar Raja 3.P.A.Rajeskara Raja 4.T.D.Ramammal 5.T.D.Ramakrishna Raja 6.T.D.Vasudeva Raja 7.P.B.Sulochana ... Appellants/Defendants 1 to 7 Vs. 1.S.Yesodharan 2.Ajith S.Nair ... Respondents 1 & 2 /Plaintiffs 3.P.R.Subramaniya Raja 4.P.S.Rajeswari 5.P.S.Sri Ram Mohan ... Respondents 3 to 5/Defendants 8 to 10 Prayer Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 17.02.2000 passed in O.S.No.23 of 1996 by the Sub Judge, Srivilliputtur. !For Appellants ... Mr.S.Ramesh for Mr.V.Raghavachari ^For Respondents... Mr.A.Sivaji for R.1 and R.2 Mr.PL.Narayanan for R.3 to R.5 :JUDGMENT
This appeal has been filed as against the judgment and decree dated 17.02.2000 passed in O.S.No.23 of 1996 by the Sub Judge, Srivilliputtur.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. Niggard and bereft of details, the case of the plaintiffs as stood exposited from the plaint could be portrayed thus:
(i) The defendants 1 to 7 are the owners of the suit immovable property described in the schedule of the plaint which they agreed to sell in favour of the plaintiffs vide Ex.A.2, the agreement to sell, dated 01.10.1992, for a total sale consideration of Rs.8,50,000/- (Rupees Eight Lakhs and Fifty Thousand only). The plaintiffs paid a sum of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) as advance in favour of the defendants 1 to 7. As per the said agreement to sell, on or before 31.01.1993, the defendants should produce the 'Nil encumbrance' certificate and income tax clearance certificate, whereupon, the plaintiffs should pay the remaining sale consideration of Rs.7,00,000/- (Rupees Seven Lakhs only) and get the sale deed executed in their favour.
(ii) Even though the plaintiffs were ready and willing to perform their part of the contract, nonetheless the defendants 1 to 7 did not come forward to perform their part of the contract by producing the necessary certificates.
Consequent upon the plaintiffs' effort, the encumbrance certificate as revealed by Ex.A.3, was obtained and they came to know that the defendants 1 to 7 suppressed the mortgage deed which the defendants executed in favour of the Government in mortgaging the suit property in consideration of having availed loan of Rs.3,68,125/- (Rupees Three Lakhs Sixty Eight Thousand One Hundred and Twenty Five only). Whereupon when the plaintiffs enquired those defendants, the latter admitted the existence of such encumbrance and they replied that the Government would waive the mortgage dues.
(iii) However, at the time of entering into the agreement to sell as per Ex.A.2, the defendants 1 to 7 did not disclose those facts. The defendants by their subsequent communications put the blame on the plaintiffs as though they were not ready and willing to perform their part. The plaintiffs also in violation of the agreement to sell sold the suit property in favour of the defendants 8 to 10. Accordingly, they prayed for specific performance of the agreement to sell.
4. Denying and disputing, challenging and impugning the allegations/averments in the plaint, the refutatory written statement was filed by the defendants 1 to 7, the gist and kernel of it, would run thus:
(i) Even at the time of entering into the agreement to sell Ex.A.2, the defendants 1 to 7 orally informed the plaintiffs about the mortgage in favour of the Government and also the proposal on the side of the Government to waive the dues. The plaintiffs as per Ex.A.4, the letter dated 27.01.1993 insisted for a certificate to be produced by them from the Revenue authorities, even though no such clause was contemplated in the agreement to sell. The defendants replied on 10.02.1993. Subsequently, there was a meeting between the plaintiffs and the father of the first defendant at Rajapalayam and thereafter, the plaintiffs undertook to communicate with the defendants, but there was no positive response from the plaintiffs.
(ii) However, the plaintiffs prayed further time to pay the remaining sale consideration so as to purchase the suit property. However, they committed breach. The defendants 1 to 7 sent communication dated 28.04.1994 to the plaintiffs informing them the ultimate date for performing their part of the contract and also the intention of the defendants 1 to 7 to sell the suit property to third parties in the event of plaintiffs failing to avail the opportunity. Inasmuch as there was no response, the suit property was sold to the eight defendant consequent upon the agreement to sell which emerged between the defendants 1 to 7 on the one side and the defendants 8 to 10 on the other side. The plaintiffs were not having financial wherewithal to purchase the suit property and they were not ready and willing to perform their part of the contract. The defendants 1 to 7 were not at fault in performing their part of the contract. Accordingly, they prayed for the dismissal of the suit.
5. The defendants 8 to 10 filed the written statement, the pith and marrow of it, would run thus:
The plaintiffs had no sufficient funds to get the sale deed executed in their favour and hence, they did not perform their part of the contract, which resulted in breach of the contract. Thereafter alone, an agreement to sell emerged between the defendants 1 to 7 and the defendants 8 to 10. Subsequently, the eight defendant purchased the suit property and thereafter, as per sale deeds, Exs.B.15 to B.18, the respective portions of the suit property were purchased. The defendants 8 to 10 after such purchase, made significant improvements in the suit property. Accordingly, they prayed for the dismissal of the suit.
6. The trial Court framed the relevant issues.
7. Ultimately, the trial Court decreed the suit.
8. Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court, the defendants 1 to 7 filed this appeal on the following main grounds among others:
(i) The judgment and decree of the trial Court is against law and weight of evidence. The trial Court failed to uphold that the plaintiffs were not ready and willing to perform their part of the contract and that the defendants 1 to 7 never intended to extend the time for performing the contract of agreement to sell. The plaintiffs were not having sufficient funds to fulfil their part. By their communications, they expressed their desire to get the time extended as they are not having sufficient funds.
(ii) The trial Court failed to consider all these salient features including the one that at the time of emergence of Ex.A.1, the defendants 1 to 7 conveyed orally to the plaintiffs, that there was Government encumbrance over the suit property. Even as per the averments of the plaintiffs, they were aware of the encumbrances even as early as on 03.11.1992. The defendants 1 to 7 gave option to the plaintiffs to withhold from the remaining part of the sale consideration, necessary amount equivalent to the Government dues and pay the remaining sale consideration. However, the plaintiffs have not come forward to perform their part of the contract.
(iii) Various correspondences between the parties would speak volumes about it. The trial Court failed to note that by virtue of Ex.B.12, letter dated 16.09.1994, the first plaintiff himself expressed his regret and his guilty conscience in not performing the plaintiffs' part of the contract, within the time within which he agreed to perform by paying the remaining part of the sale consideration concerned. The trial Court failed to hold that the plaintiffs filed the suit with false facts as though various written communications sent by the first plaintiff were not of his own. The first plaintiff shunned the witness box and he never denied on oath the correspondences sent by him. The lower Court failed to consider that the subsequent purchasers, namely the defendants 8 to 10 made significant improvements in the suit property and by spending huge amounts and that therefore granting the discretionary relief of specific performance was not tenable.
(iv) The trial Court failed to note that there were lapses on the part of the plaintiffs in instituting the original suit. The trial Court erroneously relied on the alleged financial capacity of the plaintiffs during the pendency of the suit which was not germane for the deciding the case. Accordingly, they prayed for setting aside the judgment and decree of the trial Court and for dismissing the original suit.
9. The points for consideration are:
(i) Whether the plaintiffs were ready and willing to perform their part of the contract throughout and to that effect, whether there is any specific averment in the plaint in accordance with Section 16 of the Specific Relief Act?
(ii) Whether the trial Court failed to consider the significance of Section 20 of the Specific Relief Act, consequent upon the subsequent developments effected in the suit property by the defendants 8 to 10 who happened to be the subsequent purchasers of it?
(iii) Whether there is any infirmity in the judgment and decree of the trial Court?
10. Heard both sides.
11. The apple of discord between the parties to Ex.A.2, the agreement to sell, dated 01.10.1992, is that the proposed purchaser would contend that he after parting with his sum of Rs.1,50,000/- as advance under Ex.A.2, demanded the proposed sellers as per Ex.A.4 letter dated 27.01.1993 for production of the income tax clearance certificate, possession certificate and also discharge certificate proving the nil encumbrance of the Government loan, for the proposed purchaser to perform his part of the contract. Whereas the defendants by their reply Ex.A.12, dated 10.02.1993, contended that such income tax clearance certificate was not mandatory for getting the sale deed registered and that there was no suppression of the Government encumbrance over the suit property and that the defendants 1 to 7 would bear the Government dues.
12. As such, both sides would try to find fault with the other relating to the non-performance of the agreement to sell. There were other exchange of notices between themselves also.
13. It is the contention of the proposed sellers (defendants 1 to 7) that the plaintiffs were not ready and willing to perform their part of the contract by paying the money as they had no sufficient funds.
14. The onus of proof is on the plaintiffs to prove that they were always ready and willing to perform their part of the contract and that there were no latches on their part.
15. Section 16 of the Specific Relief Act is extracted hereunder for ready reference:
"16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person-
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(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.
Explanation.- For the purposes 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;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." (emphasis supplied.)
16. Section 16(c) of the Specific Relief Act, would unambiguously highlight that the proposed purchaser should have been ready and willing to perform his part of the contract. Relating to this proposition, catena of decisions emerged.
17. On the side of the appellants/defendants 1 to 7, the following decisions have been cited:
(i) N.P.Thirugnanam v. R.Jagan Mohan Rao reported in AIR 1996 SUPREME COURT 116.
(ii) M/s.P.R.Deb & Associates v. Sunanda Roy reported in AIR 1996 SUPREME COURT 1504.
(iii) K.S.Vidyanadam and others v. Vairavan reported in (1997) 3 Supreme Court Cases 1.
(iv) Ajaib Singh v. Tulsi Devi reported in AIR 2000 SUPREME COURT 2493.
(v) Surjit Kaur v. Naurata Singh reported in AIR 2000 SUPREME COURT 2927.
(vi) Pushparani S.Sundaram v. Pauline Manomani James reported in (2002) 9 Supreme Court Cases 582.
(vii) Umabai v. Nilkanth Dhondiba Chavan reported in (2005) 6 Supreme Court Cases 243.
(viii) Aniglase Yohannan v. Ramlatha and others reported in (2005) 7 Supreme Court Cases 534.
(ix) Basheer v. Khadeeja reported in 2001 (2) KLT 632.
(x) Mathew v. Thomas reported in 2005 (2) KLT SN 9.
(xi) Jacob Silas v. John Balthasar Kholoff reported in 1954 KLT SN 3.
(xii) Singaravelu Kounder v. Sulaiman reported in 2007 (2) KLT 556.
(xiii) Chand Rani v. Kamal Rani reported in AIR 1993 SUPREME COURT 1742.
(xiv) Vidhyadhar v. Mankikrao reported in AIR 1999 SUPREME COURT 1441.
(xv) Lourdu Mari David v. Louis Chinnaya Arogiaswamy reported in AIR 1996 SUPREME COURT 2814.
(xvi) A.C.Arulappan v. Ahalya Naik reported in (2001) 6 Supreme Court Cases 600.
18. The perusal of the aforesaid decisions, highlights the point that the plaintiffs should always ready and willing to perform his part of the contract and there should not be any latches on their side.
19. Hence, it is just and necessary to see in this case as to whether the plaintiffs have been ready and willing to perform their part of the contract.
20. Placing reliance on Exs.B.2, B.4, B.11 and B.12, the learned Counsel for the appellants/ defendants 1 to 7, would advance his arguments that the first plaintiff Yasodharan who is an Advocate by profession has categorically expressed the inability of the plaintiffs to perform their part of the contract. Whereas it is the contention of the plaintiffs that the first plaintiff is not the author of those documents and virtually, their case is that those documents are forged documents.
21. At this juncture, it would not be out of place to observe that the trial Court has miserably failed to address itself to those exhibits and give its verdict on that. The trial Court simply proceeded on the proposition that the time is not the essence of the contract relating to the specific performance of the agreement to sell of immovable property and accordingly, held that the suit which was filed within the period of limitation could be decreed.
22. It is also the finding of the trial Court that the defendants by their own communications waived the time to be the essence of the contract upto 1994 and based on such finding the trial Court without considering the main condition for seeking specific performance namely the readiness and willingness on the part of the plaintiffs to perform their part of the contract, as to whether the plaintiffs complied with condition or not, decreed the suit.
23. The nature of the case is such that once it is held that Exs.B.2, B.4, B.11 and B.12 were actually executed by the first plaintiff, then the plaintiffs should fail and they would not be able to get the specific performance of the agreement to sell as contained in Ex.A.2 enforced. The plaintiffs without concentrating on this main issues, simply dilated on various points and tried to find fault with the falsity of the case of the defendants.
24. Trite law, as it is, the plaintiffs cannot try to achieve success in the litigative battle by picking holes in the case of the defendants and that too, in a case of specific performance of agreement to sell, the plaintiffs should approach the Court with clean hands and there should not be any falsity in their plea.
25. At this context, I would like to cite the decision reported in 1994-1- L.W.321 (Chokkalingam, S.S. v. R.B.S.Mani & 5 others) which is to the effect that the party who approaches the Court for specific performance should not approach the Court with false facts.
26. It is the well settled proposition of law that granting specific performance is a discretionary one. However, it has to be exercised judiciously. In the cited decision, it is also found highlighted that it is an equitable relief. I recollect the maxim "He who seeks equity must do equity and he who comes to equity must come with clean hands". Here, it has to be seen whether the plaintiffs have come to Court with clean hands.
27. The trial Court for the purpose of finding out those features should have necessarily focussed its attention on Exs.B.2, B.4, B.11 and B.12. But, it did not do so. This Court being the first appellate Court in this case is bound to look into the factual aspects along with the legal intricacies and accordingly, I proceed further to discuss the circumstances pertaining to Exs.B.2, B.4, B.11 and B.12. The first plaintiff is the author of Exs.B.2, B.11 and B.12 and the second plaintiff is the author of Ex.B.4.
28. It is significant to note that the first plaintiff, the author of Exs.B.2, B.11 and B.12 has not chosen to figure himself as a witness to depose in support of his case that he was not the author of those exhibits.
29. The preponderance of probabilities would govern the adjudication in civil cases.
30. Exs.A.4, the letter dated 27.01.1993 sent by the plaintiffs to the defendants and A.12, the letter dated 10.02.1993,which is the reply by the defendants 1 to 7 to the plaintiffs, are admitted documents.
31. It has to be seen as to how far the plea of the plaintiffs is tenable in the light of the other available exhibits.
32. Ex.A.1, is the lawyer's notice dated 28.04.1994 sent on behalf of the defendants 1 to 7 to the plaintiffs, setting out the stand of the defendants and as per which, fifteen days' time was finally granted by the defendants 1 to 7 so as to enable the plaintiffs to pay the remaining part of the sale consideration and get the sale deed executed in their favour.
33. Ex.A.1 dated 28.04.1994 is the notice sent by the defendants 1 to 7 to the plaintiffs calling upon the latter, within fifteen days to come forward to get the sale deed executed after paying the remaining sale consideration, for which the first plaintiff by his communication vide letter dated 10.05.1994, Ex.A.13, prayed three months time. However, in Ex.A.13, he contended that the defendants did not clearly spell out what are all the amounts due to the Government. An excerpt from Ex.A.13, could rightly be reproduced hereunder for ready reference:
"Now, we are finalising the arrangements between myself and another party which I am to execute at great financial loss for me just because we have to purchase the property of your clients. So please advise your party to wait for another three months for the final execution of the sale deed. If your clients decline to do so and incline to cancel the agreement inspite of all this, we would be put to great financial loss and loss of reputation. For all such consequences your party would be solely responsible. It may be mentioned that we are agreeable to pay the amount of tax your client had paid since the date of agreement with us. In conclusion, I am to ask you to forget all uncalled for circumstances and advise your client to give us a further extension of three months time to enable us to execute the sale deed. I only want it should be done."
34. In the aforesaid extract as well as in the entire reply, there is no whisper about the non-production of the income tax clearance certificate etc., as found set out in their earlier communication Ex.A.4, dated 27.01.1993.
35. As such, the contention of the plaintiff placing reliance on Section 230(A) of the Income Tax Act, that the defendants 1 to 7 did not secure Income Tax clearance certificate, to get the sale deeds registered is found to be not well-founded.
36. The learned Counsel for the plaintiffs would contend that Section 230(A) of the Income Tax Act was repealed only in the year 2001 and till then, it was mandatory. In such a case, it is not known as to why then the plaintiffs in Ex.A.13 did not stick on to it. As per Section 230(A) of the Income Tax Act, if one transaction is more than Rupees Five Lakhs, then only such Income Tax clearance certificate was contemplated, however here, clause 8 of Ex.A.2 the agreement to sell, is extracted hereunder:
"8. The sale shall be in favour of purchasers or his nominee and shall be registered in either one lot or in convenient lots or bits of land or in undivided share as may directed by the purchasers to suit their convenience."
(emphasis added.)
37. It is therefore explicit that sale deeds in piece meal also was contemplated as per Ex.A.2. there are two plaintiffs and seven defendants (D.1 to D.7) who were parties in Ex.A.2 and in fact, Exs.B.15 to B.18 relating to the suit property would reveal that they were registered in Sub Registrar Office during the year 1995 itself. As such, viewing in this factual circumstances, the parties in practice followed Section 230 (A) of the Income Tax Act, more in its breach than its adherence and presumably the plaintiffs themselves while issuing Ex.A.13 understanding the same, had given a go-bye to such plea based on Section 230(A) of the Act. However, subsequently in the litigation, they took it as a ground to find fault with the defendants so as to camouflage and conceal the plaintiffs' own non-readiness in performing their part of the contract.
38. Had really the non-production of the income tax clearance certificate as well as the non-discharge of the encumbrance was the main embargo as per the plaintiffs, then in Ex.A.13, the first plaintiff might not have projected the plaintiffs' case in that manner seeking three months time for getting the sale deed executed. In Ex.A.13, the plaintiffs clearly spelt out his inability to raise the said amount, for which he would blame the plaintiffs that there was Government encumbrance over the suit property. Quite antithetical to Ex.A.13, the plaintiffs let in evidence before the trial Court as though they were having enough money to purchase the property and in that connection, Exs.A.27 to A.43 were marked.
39. In fact, Ex.B.11, was written by the first plaintiff in his own handwriting in the letter head of Jagadeeswara Raja, the father of the first defendant, while he was negotiating with him. Had the defendants 1 to 7 intended to fabricate such a document, then there would have been no necessity for them to fabricate it on the letter head of Jagadeeswara Raja, the father of the first defendant.
40. Further Ex.B.12, is found written by the first plaintiff in his own letter head. If really it is not his letter head, he could have produced his one such letter head to prove that Ex.B.12 letter head was a fabricated one.
41. It is quite obvious that the oral evidence as available on the plaintiffs' side in the wake of the discussions supra based on documentary evidence, is of no significance.
42. A tabulation of the crucial documents would highlight the tenor of the ratiocination involved in my discussion as under:
Exhibits Details Ex.B.4 dated 07.01.1994 Letter sent by the second plaintiff to the first defendant. Ex.A.1 dated 28.04.1994 Advocate's notice sent by the defendants to the plaintiffs. Ex.A.13 dated 10.05.1994 Reply sent by the first plaintiff to the defendants. Ex.A.16 dated 13.06.1994 Rejoinder notice sent by the defendants to the plaintiffs through Advocate. Ex.B.2 dated 02.07.1994 Letter sent by the plaintiffs to the eighth defendant.
Ex.B.11 dated 30.08.1994 Letter sent by the first plaintiff to the first defendant. Ex.B.12 dated 16.09.1994 Letter sent by the first plaintiff to P.S.A.Jagadeeswara Raja. Ex.B.13 dated 17.09.1994 Telegram sent by the first plaintiff to P.S.A.Jagadeeswara Raja. Ex.B.14 dated 17.10.1994 Telegram sent by the first plaintiff to the first defendant. Ex.A.18 dated 28.12.1994 Notice sent by the plaintiffs to the defendants.
43. The time gap between Ex.A.16 dated 13.06.1994 and Ex.A.18 dated 28.12.1994 would speak volumes that in between those two exhibits, Exs.B.2,B.11,B.13 and A.14 emerged. If according to the plaintiffs, no such communication as in Exs.B.2, B.11, B.13 and B.14 sent by the plaintiffs during that gap, the core question would arise as to why the plaintiffs kept quiet and that too, after Ex.A.16 containing such serious accusation as against the plaintiffs. As such, it is clear that Exs.B.2, B.11, B.13 and B.14 emerged at the instance of the plaintiffs only. The maxim "qui non negat fatetim". (A person who does not deny admits it.) is squarely applicable as against the plaintiffs.
44. In Ex.A.4 as well as in Ex.A.13, it is the consistent case of the plaintiffs that by citing the suit property which was intended to be purchased by them, they wanted to raise the loan and pay the remaining part of the sale consideration. In such a case, it is not known as to how the plaintiffs throwing to winds their own plea, could contend that they had sufficient funds and owing to non-production of the income tax clearance certificate and the non- discharging of the Government loan, the transaction could not be fulfilled. The trial Court in its judgment at paragraph No.13, simply referred to Exs.A.27 to 39 and held that the plaintiffs were financially sound. As such, it is crystal clear that the trial Court misdirected itself, forgetting actually what was the stand of the plaintiff and held that the plaintiffs were not in dearth of money in getting fulfilled the sale transaction.
45. The defendants 1 to 7 issued notice Ex.A.16 dated 13.06.1994 adverting to Ex.A.13 and categorically informed the plaintiffs that the defendants 1 to 7 cancelled the agreement to sell, Ex.A.2. This is a very important stage which should be considered for the purpose of understanding as to whether Exs.B.2, B.11 and B.12 were written by the first plaintiff or not?
46. It is the admitted fact that Ex.A.16 was received by the plaintiffs. In such a case, the core question arises as to what should be the normal conduct of the individuals who received Ex.A.16, if at all, the individuals had disagreed with the contents of Ex.A.16. The plaintiffs should have replied to Ex.A.16. On the other hand, the plaintiffs simply kept quiet, for which they gave some artificial, unacceptable and unconvincingly explanation for the first time in the plaint as under:
"The defendants 1 to 7 at that time informed the plaintiffs and P.R.Ramasubramania Raja @ Thayappa Raja that the plaintiffs need not sent any reply to those notices and they would not take any action on the basis of those notices and they further agreed to withdraw the notices. The plaintiffs bonafidely believed the representations made by the defendants 1 to 7."
(emphasis supplied.)
47. By no stretch of imagination, the plea as found set out in the plaint, for non-reply could be upheld by the Court. It is not that for the first time, a notice was sent by the defendants 1 to 7. After earlier sending of lawyer's notice and communications and getting replies, the defendants 1 to 7 had chosen to give a final notice, Ex.A.16.
48. Hence, the plaintiffs in all probabilities might not have kept quiet without giving reply to Ex.A.16 and in this case, virtually, the first plaintiff communicated as per his communications vide Exs.B.2 dated 02.07.1994, B.11 dated 30.08.1994 and B.12 dated 16.09.1994. Hence, the explanation as found in the plaint as though there was no reply given by the plaintiffs and that there was only oral assurance by the defendants 1 to 7 that they would not treat the agreement as cancelled, are nothing but false pleas dished out by the plaintiffs so as to wriggle out of the commitment made by the first plaintiff in the form of Exs.B.2, B.11 and B.12.
49. One other probability also should be seen. Whether the plaintiffs after receiving such final notice as per Ex.A.16 from the defendants 1 to 7 would simply accept the oral persuasion of the plaintiffs and allegedly answered by the defendants as set out in the plaint as though, the defendants would not treat the agreement Ex.A.2 as cancelled as per Ex.A.16. The answer at once is clear that the plea of the plaintiffs is totally unacceptable. Whereas Exs.B.2, B.11 and B.12, the communications sent by the first plaintiff on receipt of Ex.A.16, would clearly show that the first plaintiff on behalf of the plaintiffs requested, appealed, entreated and implored for extending the time to perform the plaintiffs' part of the contract. As an afterthought, the plaintiffs understanding that if they accept the factum of having sent Exs.B.2, B.11 and B.12, it would be fatal to their case, they conveniently did choose to deny their own documents in toto. The first plaintiff has not chosen to enter into the box and deny on oath, the said Exs.B.2, B.11 and B.12.
50. Yet, one other probability has to be seen which is in support of the fact that Exs.B.2, B.11 and B.12 were written only by the first plaintiff. Ex.A.25, is the notice dated 30.01.1995 on behalf of the defendants 1 to 7 in reply to Ex.A.18 notice dated 28.12.1994 and in that it is clearly found spelt out about Exs.B.11 and B.14 were written by the first plaintiff by his own hand- writing in ful.
51. Ex.B.11, the letter dated 30.08.1994 and Ex.B.14, the telegram dated 17.10.1994, were sent by the first plaintiff to the first defendant. If really, those exhibits were not authored by the first plaintiff, at once, at least, he should have replied stating that those documents are forged ones and he should have initiated criminal legal action. But, absolutely there was no response to Ex.A.25. As such, it is crystal clear that Exs.B.2, B.4, B.11, B.12 and B.14 are all genuine documents filed on the side of the plaintiff and a reading of those exhibits would clearly demonstrate that the plaintiffs expressed their inability to perform their part of the contract in time and they sought for extension every now and then.
52. The trial Court without considering all these details and the probabilities, simply accepted the false plea of the plaintiffs and decreed the suit. Hence, I am of the view that I need not reproduce the entire contents of those letters. Certain excerpts from those exhibits, would run thus:
In Ex.B.2:
"1. We had misunderstanding of date. I have written to Sri Ram Kumar on 10.05.1994. That is only 10.08.1994 three months to be exempted. So please tell the Senior Raja, Ramkumar and others, and also Kanakkapillai.(Mr.Ramasami Raja) that will be there with money before time.
2. Regarding the Agricultural land kindly send me the names of the area with Taluks, distance from Rajapalayam, etc. Reply urgently."
In Ex.B.4:
"Thayappan reached here today (7.1.1994) and insisted us for an immediate registration. Unfortunately my partner, Mr.Yesodharan is admitted to Kottakkal Arya Vidya Sala and they requested him not to travel long distance. I think it will be O.K on 25th of this month. Meanwhile in my family also, there are certain functions and so I am also very busy. Any how, we will reach there by 25th and we can finish every thing.
What about your health. I know you will take proper rest and care. I think your son and all family members are doing well. Convey any regards and new year greeting to all of them. More news when we meet."
In Ex.B.11:
"Dear Sri P.J.Ramkumar, May I as you an extension of time upto 18th September 1994 for registration of the assignment deed of the estate. This will be the last date I am asking. After that date the agreement between us will stand cancelled."
In Ex.B.12:
"Dear Sir, With great regret and anguish, and of course, also with a bit of guilty consciousness, I am writing this to inform you that I cannot reach there, as was promised, before 18th of this month. I have left Rajapalayam on 7th instance itself on receiving a phone message calling my urgent presence here. So, I cancelled the trip to the estate and returned home. My younger sister-in-law's husband is troubled by a very bad kidney ailment and had to be given immediate medical care. So he has been subjected to various complicated tests like ultra sound scaning; C.T.Scan; I.V.P, K.U.B; Isotop regograme. The difficulty is that all these tests could not be done in one centre. So he has been taken to different centres at Thiruvananthapuram and Kozhicode, where there is a famous kidney clinic. Now we are awaiting the result of the last mentioned test. The general tendancy and opinion of the specialists point to a surgery.
He has no brothers and his father is no more. This mental agony and anguish is very great in my wife house. In this circumstance, I cannot leave him until a final solution is reached.
So kindly understand the situation and allow us another two weeks for fulfilling our contractual obligation. However, I will try my level best to come there as early as possible."
53. As such, the aforesaid excerpts, would clearly show that the plaintiffs are not entitled to specific performance. As such, based on these deeds, the judgment and decree of the trial Court could be set aside and the original suit be dismissed.
54. However, for the purpose of comprehensively discussing the other pleas raised on the plaintiffs' side, I proceed to discuss further.
55. The learned Counsel for the plaintiffs would contend that the defendants in Ex.A.2 suppressed the factum of Government encumbrance. No doubt, in Ex.A.2. there is no reference to the encumbrance and the plaintiff themselves after getting Ex.A.3, the encumbrance certificate, came to know about the encumbrance. On the one hand, the plaintiffs would contend that there was suppression of material facts in Ex.A.2 and on the other hand, the defendants 1 to 7 would plead that there was no suppression of such encumbrances as at the time of emergence of Ex.A.2 itself, such encumbrance was disclosed orally to the plaintiffs and both sides had chosen not to incorporate the said fact in the agreement itself. If really, weightage has to be given to the plaintiffs' plea, that the plaintiffs were cheated into the belief that the property was free from encumbrance and thereupon, Ex.A.2 was got executed, then it would be ex facie suicidal to the plaintiffs' case because, Ex.A.2 would be lacking in consensus ad idem and that Ex.A.2 on that count itself would become an unenforceable contract. The subsequent conduct of the parties would clearly prove that both of them, mutually agreed as per the correspondences between them that the defendants 1 to 7 would bear the responsibility of discharging the debt and to that effect they also, agreed for adjusting in the sale consideration payable by the plaintiffs to the defendants 1 to 7.
56. Had really, the plaintiffs were ready to get the sale deed executed by having money with them, they could have very well expressed their readiness and willingness to pay the remaining part of the sale consideration on receipt of several earlier notices and communications from the plaintiffs.
57. Hence, I am of the considered opinion that the subsequent conduct of the plaintiffs would further point out that they have given a go-bye to their earlier plea as found in Ex.A.4 and hence, they are not entitled to revive their own stale earlier plea as contained in Ex.A.4. Had really they wanted to stick on to their plea in Ex.A.4, it is not known as to why they should file the suit for specific performance, but they should have filed the suit for damages for having allegedly cheated the plaintiffs by the defendants 1 and 2. Had really the Government encumbrance and want of Income Tax clearance, even the obstacle, then the question arises as to why the plaintiffs gave a go-bye to it.
58. The plaintiffs also would contend that the subsequent sale deeds Exs.B.17 and B.18 are all make-believe documents emerged between the defendants 1 to 7 and the defendants 8 to 10 so as to defeat the interest of the plaintiffs and that those deeds were registered in Kerala State showing along with the suit property herein some fictitious property. In this connection, the learned Counsel for the plaintiffs would cite the decision in Manoharadhas, M. v. C.Arumughaperumal Pillai reported in 2003(1) CTC 539.
59. In view of the discussion supra, no doubt, simply because those deeds were got registered in Kerala State under questionable circumstances, that would not enure to the benefit of the plaintiffs who approached the Court with false plea suppressing his own lack of readiness and willingness to purchase the suit property.
60. Here, it has to be seen as to the readiness of the plaintiffs in getting the sale deed executed in his favour. My above discussion would demonstrate that the plaintiffs were guilty of latches and they have not at the relevant time sufficient funds to purchase it and in such a case, he cannot pick holes in the case of the defendants and also in the transactions which emerged between the defendants 1 to 7 and the defendants 8 to 10.
61. Here, the case of the defendants 8 to 10 is not that they had no knowledge about the previous agreement to sell, Ex.A.2. It is their specific case that Ex.A.2 was cancelled by the defendants 1 to 7 and thereafter, they purchased it. The method and manner, they purchased is beyond the scope of this suit and the plaintiffs' plea on that score is not having the effect of benefiting the plaintiffs in seeking specific performance of the agreement to sell.
62. The contention of the plaintiffs that time was not the essence of the contract, is having no relevancy in this case as there is no quarrel over such a proposition. However, the decision of the Honourable Apex Court in Balasaheb Dayandeo Naik (dead) through LRs & others v. Appasaheb Dattatraya Pawar reported in 2008-1-L.W.801 was cited by the learned Counsel for the plaintiffs.
63. No doubt, the aforesaid decisions would highlight that time was not essence of the contract and the cited decision is not applicable in the facts and circumstances of this case for the reason that my above discussion supra, would clearly highlight that the plaintiffs were not ready and willing to perform their part of the contract despite the repeated extension of time given in favour of the plaintiffs to perform their part of the contract by the defendants 1 to 7 to the plaintiffs. One cannot expect that the time had to be extended ad infinitum.
64. Here, the question involved is not that the time is the essence of contract or not. But, the question involved is as to whether the plaintiffs were ready and willing to perform their part of the contract throughout. The documentary evidence would clearly show that the plaintiffs were bent upon postponing the performance of their part of the contract under one pretext or the other. Ultimately, they came forward with a clear fact that they could not raise money in time and in such a case, the decision of the Honourable Apex Court cited on the side of the plaintiffs is not applicable in the facts and circumstances of this case.
65. The learned Counsel for the plaintiffs also cited the decision of this Court in Thailammai v. Karuppannan reported in 2008 (2) CTC 11 which is on a different footing it is clear and from a perusal of it and the reason given for non-applicability of the aforesaid decision of the Honourable Apex Court, are also applicable to the cited decision of this Court.
66. Relating to specific pleading in the plaint concerning the readiness and willingness to perform the plaintiffs' part of the contract, even though there is no specific sentence to that effect, nonetheless the plaint averments cumulatively would be relating to such readiness and willingness. Hence, the suit cannot be held to be bad on such non-specification.
67. The learned Counsel for the plaintiffs has argued that after the decree, the plaintiff also deducting the amount due towards the Government encumbrance, deposited the remaining sale consideration as quantified by the trial Court. I am of the considered opinion that had the plaintiff resorted to such an exercise in adjusting the Government dues and tendering the amount to the defendants 1 to 7 at the earliest, even when the defendants gave time to the plaintiffs to fulfil their part of the contract, the matter would have been different.
68. Accordingly, Point No(i) is decided in favour of the defendants and as against the plaintiffs.
Point No:(ii)
69. The learned Counsel for the defendants 8 to 10 would develop his argument that after purchase, they effected developments as revealed by the Commissioner's report and in such a case, the plaintiffs are not entitled to pray for specific performance and to that effect, he placed reliance on Section 20 of the Specific Relief Act.
70. Here, no doubt, the Commissioner's report which emerged after his visiting the suit property, would be to the effect that the defendants 8 to 10 started cultivation in a portion of the suit property and that they also raised some structures.
71. Be that as it may, in my opinion, those are not germane for deciding this issue in view of my categorical finding that the plaintiffs were not ready and willing to perform their part of the contract. Accordingly, Point No.(ii) is also decided.
72. In the result, the appeal is allowed, setting aside the judgment and decree dated 17.02.2000 passed in O.S.No.23 of 1996 by the Sub Judge, Srivilliputtur and the original suit is dismissed. However, in the facts and circumstances of the case, both sides shall bear their respective costs throughout. The plaintiffs are entitled to get back the amount deposited by them from the Court.
rsb To The Sub Judge, Srivilliputtur.