Madras High Court
K. Narasiman (Deceased) vs C.P. Sanjeevi Mudaliar on 4 April, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.07.2018
PRONOUNCED ON: 03.08.2018
CORAM:
THE HON'BLE MR.JUSTICE T.RAVINDRAN
S.A. No.253 of 2005
1. K. Narasiman (Deceased)
2. Arulmigu Lakshmi Narashima Swamy Thirukoil
Rep. By Assistant Commissioner / Executive Officer
Sholinghur 632 101, Vellore District. ... Appellants
(2nd Appellant brought on record as LR
of the deceased sole Appellant vide
order of court dated 04.04.2012
made in CMP. Nos.181, 202 to
206/12 in SA 253/2005)
Vs.
C.P. Sanjeevi Mudaliar ... Respondent
Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 11.02.2003 made in A.S.No.35 of 2002 on the file of the Principal District Judge at Vellore confirming the Judgement and decree dated 21.03.2002 made in O.S. No.75/95 on the file of the Sub Court, Ranipettai.
For Appellants : Mr. K.V. Subramaniam SC
for M/s. K.V. Subramaniam Associates
For Respondent : Mr.C. Ramesh
J U D G M E N T
Challenge in this second appeal is made to the judgment and decree dated 11.02.2003, passed in A.S.No.35 of 2002, on the file of the Principal District Court, Vellore, confirming the judgment and decree dated 21.03.2002, passed in O.S. No.75 of 1995, on the file of the Subordinate Court, Ranipettai.
2. Parties are referred to as per their rankings in the trial Court.
3. Suit for specific performance.
4. The case of the plaintiff, in brief, is that the defendants are the owners of plaint schedule property and on 29.10.1993, the defendants entered into an agreement of sale with the plaintiff for the sale of the plaint schedule property for a sum of Rs.2,49,000/- and the sale agreement was reduced into writing and on the date of the sale agreement, the defendant had received a sum of Rs.5,000/- as advance from the plaintiff and the parties had agreed to complete the sale transaction within a period of six months from the date of the sale agreement i.e., the plaintiff should pay the entire balance sale consideration within the abovesaid period and get the sale deed executed from the defendants at his expenses and even though the plaintiff is always ready and willing to perform his part of contract, according to the plaintiff, the defendants did not comply with the terms and conditions of the sale agreement and despite the readiness and willingness of the plaintiff in parting with the balance sale consideration and getting the sale deed executed, the defendants, on some pretext or the other, had been evading the same and according to the plaintiff, he had issued a telegram on 18.04.1994 to the defendants calling upon them to execute the sale deed as per the sale agreement. However, the defendants had refused to receive the telegram and the plaintiff issued a legal notice on 03.05.1994, calling upon the defendants to complete the sale transaction by executing the sale deed after receiving the balance sale consideration and deliver the possession of the suit property and the defendants with a fraudulent intention to avoid the execution of the sale, sent a reply dated 17.05.1994, projecting the Will executed by one Subba Iyer and thereby contended that by virtue of the Will, they have no right or interest to convey the suit property in favour of the plaintiff. However, the abovesaid the averments contained in the reply notice are false and made only with a view to avoid the execution of the sale deed and to the abovesaid reply notice, the plaintiff had sent a rejoinder dated 25.05.1996 contending that the alleged Will projected in the reply notice is a concocted document and accordingly, it is stated that, in view of the conduct of the defendants in not coming forward to execute the sale deed as per the terms of the sale agreement, it is stated that the plaintiff has been necessitated to lay the suit for appropriate reliefs.
5. The case of the defendants, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts and the time of 6 months stipulated in the sale agreement is the essence of the contract and within the abovesaid stipulated time, the plaintiff was unable to perform his part of the contract and hence, the suit is liable to be dismissed on the abovesaid ground alone. Further, according to the defendants, as per the terms of the sale agreement, the defaulting party is liable to pay Rs.25,000/- as damages to the other party and nowhere it is mentioned in the sale agreement that the other party is entitled to specific performance of the contract and according to the defendants, it is only the plaintiff who is the defaulting party. However, according to the defendants, in case the defendants are deemed to be the defaulting party, according to them, they are willing to pay Rs.25,000/- as damages to the plaintiff as well as willing to refund the advance amount of Rs.5,000/-. Further, according to the defendants, they have no intention of selling the suit property to the plaintiff and the second defendant is planning to conduct a orphanage in the plaint schedule property and in the adjacent house property belonging to the defendants and hence, according to the defendants, the suit laid by the plaintiff is liable to be dismissed.
6. In respect of the plaintiff's case, PWs 1 & 2 were examined, Ex.A1 to A4 were marked. On the side of the defendants, DWs 1 & 2 were examined and Exs.B1 and B2 were marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to accept the plaintiff's case and accordingly granted the necessary reliefs in favour of the plaintiff. Impugning the same, the present Second Appeal has been preferred.
8. At the time of admission of the second appeal, the following substantial question of law was formulated for consideration:
When admittedly the documents itself provided for liquidated damages for breach of contract whether the Courts below are right in granting equitable right of specific performance?
9. The suit has been laid by the plaintiff for specific performance on the basis of the sale agreement dated 29.10.1993, which document has come to be marked as Ex.A1. The defendants as such have not disputed the execution of the abovesaid sale agreement. Though the defendants would contend that by virtue of the Will executed by one Subba Iyer they have no right or interest to convey the suit property in favour of the plaintiff as per Ex.A1 sale agreement and the said Will has come to be marked as Ex.B1, however, as rightly determined by the Courts below, the genuineness of the said Will has not been established by the defendants in the manner known to law and equally, the validity of the abovesaid Will also having not been proved by the defendants as per law, it is found that the defendants, on that basis, cannot be allowed to avoid the sale agreement dated 29.10.1993 marked as Ex.A1 in favour of the plaintiff.
10. On a perusal of the terms contained in Ex.A1 sale agreement, it is found that the parties had agreed to fix the sale price at Rs.2,49,000/- and it is found that on the date of the sale agreement, the plaintiff has paid an advance sum of Rs.5,000/- to the defendants. It is thus found that the balance sale consideration of Rs.2,44,000/- remains to be paid by the plaintiff to the defendants. As per the terms contained in Ex.A1, the plaintiff should part with the balance sale consideration within a period of 6 months and obtain the sale deed executed by the defendants and accordingly, it is seen that a specific time limit has been fixed by the parties concerned to complete the sale consideration.
11. Now, according to the plaintiff, though he has been always ready and willing to perform his part of the contract i.e., in tendering the balance sale consideration within the stipulated time and get the sale deed executed from the defendants, according to his version, the defendants have not come forward to complete the sale transaction on some pretext or the other and hence, it is the case of the plaintiff that he had sent a telegram on 18.04.1994 to the defendants with reference to his readiness and willingness to complete the sale transaction. However, for the reasons best known to the plaintiff, the said telegram or the copy of the same has not been exhibited in the matter. When there is no proof whatsoever placed by the plaintiff to show that he had sent a telegram to the defendants on 18.04.1994 exhibiting his readiness and willingness to pay the balance sale consideration and obtain the sale deed and when the factum of the plaintiff sending the abovesaid telegram has not been accepted by the defendants, in particular, merely from the averments contained in the plaint, we cannot assume that the plaintiff had sent the abovesaid telegram to the defendants to show his readiness and willingness as put forth by him. Though the plaintiff's counsel would contend that the defendants have not in particular disputed the factum of the issuance of the abovesaid telegram in the written statement, however, the defendants in their written statement, have specifically pleaded that they are denying all the averments and allegations in the plaint except those that are those specifically admitted in the written statement and when the factum of sending a telegram by the plaintiff has not been admitted by the defendants in the written statement either impliedly or expressly, it is found that it is for the plaintiff to establish the abovesaid plea. However, it is seen that the plaintiff has not endeavored to place any material to show that he had sent a telegram on 18.04.1994 as projected in his plaint. Thus, it is found that the case of the plaintiff that he had issued a telegram on 18.04.1994 calling upon the defendants to execute the sale deed after receiving the balance sale consideration cannot be acceded to. As rightly put forth by the defendant's counsel, the abovesaid plea has been made by the plaintiff without any basis and only to project the case as if he has been always ready and willing to perform his part of the contract.
12. Admittedly, the parties had fixed the time limit for completing the sale transaction. Thus, it is found that, within six months from Ex.A1 sale agreement, the plaintiff should pay the balance sale consideration. However, there is no material placed on the part of the plaintiff other than the ipse dixit testimony of the plaintiff that he has been always ready and willing to part with the balance sale consideration to the defendants within the stipulated period. As aboveseen, the claim of the plaintiff to have issued a telegram on 18.04.1994 is not buttressed by acceptable material. It is thus found that, no proof whatsoever has been placed by the plaintiff worth acceptance to establish that he has been always ready and willing to part with the balance sale consideration from the date of sale agreement to the defendants within the stipulated period or even thereafter. On the other hand, for the first time, it is found that the plaintiff had chosen to issue a legal notice dated 03.05.1994 to the defendants as regards the completion of the sale agreement. It is, thus found that the abovesaid legal notice marked as Ex.A2 has come to be issued only after expiry of the time limit stipulated in the sale agreement. With reference to the abovesaid notice, the defendants had repudiated the case of plaintiff by sending a reply dated 17.05.1994, marked as Ex.A3 and the plaintiff had sent a rejoinder to the same on 25.05.1994, which has come to be marked as Ex.A4.
13. In the reply notice, the defendants have made clear their intention in not willing to execute the sale deed in favour of the plaintiff with reference to the suit property and in the said reply notice, the defendants have projected a Will said to have been executed by Subba Iyer and their inability to convey the suit property in favour of the plaintiff on account of the same. No doubt, the plaintiff had sent a rejoinder to the same, marked as Ex.A4 on 25.05.1994. However, when the defendants have made known their intention clearly that they are not willing to come forward to execute the sale deed to the plaintiff pursuant to Ex.A1 sale agreement, as rightly contended by the defendants' counsel, the plaintiff, immediately thereafter, should have preferred the suit against the defendants claiming appropriate reliefs. However, it is found that, despite the issuance of the reply notice dated 17.05.1994, the plaintiff has come forward with the present suit only on 16.03.1995, nearly 10 months after the abovesaid reply notice. As to why the plaintiff has not evinced interest to institute the suit immediately thereafter, there is no proper explanation offered on the part of the plaintiff. No doubt, the plaintiff's counsel would contend that the period of 10 months cannot be interpreted as a serious lapse on the part of the plaintiff in not being ready to complete with his part of the sale agreement. However, the fact remains that the plaintiff, despite the reply notice Ex.A3, has not instituted the suit for nearly 10 months and only thereafter has laid the suit as above discussed. The plaintiff has thus not established that he has been always ready and willing to pay the balance sale consideration and complete the sale transaction since the date of the sale agreement. Thus, the abovesaid facts taken cumulatively, it is found that nearly one and half years after the sale agreement, the plaintiff has come forward with the suit seeking the relief of specific performance. Thus, it is found that the plaintiff has miserably failed to establish the readiness and willingness on his part to pay the balance sale consideration and obtain the sale deed pursuant to the sale agreement Ex.A1.
14. The readiness and willingness on the part of the plaintiff, being the essential ingredient for entitling the plaintiff to obtain the discretionary relief of specific performance and when the abovesaid plea has not been established by the plaintiff in any manner as above discussed and when it is found that there is no material placed on record worth acceptance to show that the plaintiff has been ready and willing to pay the balance sale consideration of Rs.2,44,000/- to the defendants from the date of the sale agreement till the date of laying the suit, thus, it could be seen that the readiness and willingness aspects are completely missing in the present case and accordingly, it is found that the Courts below having failed to note the above aspects of the matter, being the essential one, in my considered opinion, plaintiff cannot be granted the discretionary relief of specific performance in view of his laches and not coming forward with the performance of his part of the contract as per the terms contained in the same.
15. The deposit of balance sale consideration, as now argued, in the Court by the plaintiff thereafter by itself would not in any manner enable the plaintiff to contend that he has been always ready and willing to pay the balance sale consideration to the defendants and obtain the sale deed as per the terms of the sale agreement.
16. The defendants' counsel would contend that there is a clause in the agreement Ex.A1 granting an option to the defaulting party to pay the liquidated damages to the other party in lieu of the specific performance and accordingly, it is his contention that the plaintiff as such would not be entitled to obtain the relief of specific performance and at the most, he would be entitled to obtain the liquidated damages in case the defendants are held to be the defaulting party and accordingly sought for the dismissal of the plaintiff's suit. It is further contended by the defendants' counsel that no relief of specific performance as such had been granted to the plaintiff against the defendants under/pursuant to the sale agreement other than the entitlement to receive the liquidated damages specified in the sale agreement. However, the abovesaid contention of the defendants' counsel cannot be accepted considering the terms of the sale agreement Ex.A1 in entirety. On a perusal of the terms of the sale agreement Ex.A1 in toto, it is found that no doubt, there is a clause provided therein directing the defaulting party to pay the liquidated damages to the other party. However, the agreement does not bar the entitlement of the plaintiff to seek the relief of specific performance against the defendants in case the defendants are the defaulting parties. Thus, it is found that though the sale agreement contains a clause with an option of providing money to the other party by the defaulting party, it is found that as such, the sale agreement does not bar the availment of the remedy of specific performance by the plaintiff pursuant to the sale agreement in case the defendants fail to perform their part of the contract. Such being the position, the contention of the defendants' counsel that the plaintiff cannot be granted the relief of specific performance in the light of the abovesaid clause providing for the specific payment of sum, as such, cannot be countenanced.
17. The readiness and willingness on the part of the plaintiff to part with the balance sale consideration having not been established as above discussed and the courts below having erred in holding that the plaintiff has been always ready and willing to pay the balance sale consideration without there being no material pointing to the same and the relief of specific performance being the discretionary relief and need not be granted for the mere asking for it, but, should be granted only to the party entitled thereto and when the readiness and willingness aspect being the main ingredient for enabling the party to obtain the abovesaid equitable and discretionary relief, the plaintiff having failed to establish the same as above pointed out, in my considered opinion, the plaintiff would not be entitled to obtain the relief of specific performance as directed by the courts below. The substantial question of law formulated in the second appeal is accordingly answered.
18. The counsel for the plaintiff in support of his contentions placed reliance upon the decisions reported in (2017) 9 SCC 622 (Nadiminti Suryanarayan Murthy (dead) through legal representatives Vs. Kothurthi Krishna Bhaskara Rao and others), (2018) 2 SCC 82 (Balwant Vithal Kadam Vs. Sunil Baburaoi Kadam), 2004 (4) CTC 150 (P.D'Souza Vs. Shondrilo Naidu), (2010) 10 SCC 512 (Man Kaur (dead) by Lrs. Vs. Hartar Singh Sangha), 2001-1-L.W.364 (Govind Ram Vs. Gian Chand), 2006-4-L.W.959 (Mst. Sugani Vs. Rameshwar Das & another), 2016 SCC Online Mad 31659 (Lurthumary (died) and 7 others Vs. M.Vijaya) and (1995) 2 SCC 31 (Jugraj Singh and another Vs. Labh singh and others) and similarly, the counsel for the defendants in support of his contentions placed reliance upon the decisions reported in (2010) 10 SCC 512 (Man Kaur (dead) by Lrs. Vs. Hartar Singh Sangha), (2008) 6 MLJ 539 (A.Gunasekaran Vs. K.Damayanthi), 2005 (4) CTC 426 (A.Ulaganatha Reddy Vs. D.Nandagoppal Chetti and others), 2004 (4) CTC 375 (Ranganatha Gounder Vs. Sahadeva Gounder and others), 2002 (3) CTC 277 (Mrs. Saradamani Kandappan Vs. Mrs. S.Rajalakshmi and 3 others), AIR 2008 SC 1378 (Pratap Lakshman Muchandi and Ors. Vs. Shamlal Uddavadas Wadhwa and Ors.) and (1997) 3 SCC (K.S.Vidyanadam and others Vs. Vairavan). The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand.
19. In conclusion, the judgment and decree dated 11.02.2003, passed in A.S.No.35 of 2002, on the file of the Principal District Court, Vellore, confirming the judgement and decree dated 21.03.2002, passed in O.S.No.75 of 1995, on the file of the Subordinate Court, Ranipettai are set-aside. Resultantly, the suit laid by the plaintiff in O.S. No.75 of 1995 is dismissed with costs. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.
03.08.2018 bga/sli Index:Yes/No Internet:Yes/No To
1. The Principal District Court, Vellore.
2. The Subordinate Court, Ranipettai.
3. The Section Officer, VR Section, High Court, Madras.
T.RAVINDRAN, J.
bga/sli Pre-delivery judgment made in S.A.No.253 of 2005 03.08.2018