Madras High Court
S.Krishnan vs V.Arumugam
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan, R.Vijayakumar
2026:MHC:190
AS(MD). No.205 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 20.11.2025
Delivered on : 26.11.2025
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HONOURABLE Mr.JUSTICE R.VIJAYAKUMAR
AS. (MD). No.205 of 2020
and CMP(MD) No.7250 of 2020
1. S.Krishnan,
S/o. Subramonia Mudaliar
No.6-A Mudaliar South Street
Kottar Nagercoil
Agasteeswaram Taluk
Kanyakumari District.
2. K. Rohini,
D/o. S. Krishnan
No.6-A Mudaliar South Street
Kottar Nagercoil
Agasteeswaram Taluk
Kanyakumari District. Appellant/Defendants
Vs
1. V.Arumugam,
S/o. Velappan
No.6 Mudaliar South Street
Kottar Nagercoil
Agasteeswaram Taluk
Kanyakumari District. Respondent/Plaintiff
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AS(MD). No.205 of 2020
PRAYER :-Appeal suit filed under Section 96 r/w Order XLI Rule 1 and
2 of the Code of Civil Procedure against the judgment and decree dated
12.10.2020 in OS No.165 of 2010 on the file of the Principal District
Court, Kanyakumari at Nagercoil.
For Appellants : Mr.H.Arumugam
For Respondent : Mr.M.Antony Rajadurai for
Mr.S.Rajasekar
JUDGMENT
(Judgment of the Court was delivered by C.V.KARTHIKEYAN, J.) The defendants in OS No.165/2010 on the file of the Principal District Court, Kanyakumari at Nagercoil are the appellants herein. OS No.165/2010 had been filed by the respondent seeking specific performance of an agreement of sale deed dated 04.09.2009 relating to the plaint schedule property. By judgment dated 12.10.2010, the suit was decreed. The defendants have therefore filed the present first appeal.
2. OS No.165 of 2010 – Principal District Court, Kanyakumari at Nagercoil:
It had been contended in the plaint that the first defendant was the owner of land and building measuring 4.5 cents of land at Vadiveeswaram Village at Nagercoil. The building consisted of two 2/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 portions. The plaintiff was occupying the northern portion from the year 2004 as lessee. The defendant had been occupying southern portion. It had been contended that the first defendant wanted to sell the suit schedule property in entirety and the plaintiff had agreed to purchase the same and an agreement of sale was arrived at on 04.09.2009. The total sale consideration was determined at Rs.32/- lakhs. An advance of Rs.1,00,000/- was paid. Subsequently another amount of Rs.80,000/-
was paid on 02.11.2009 and a further sum of Rs.1,20,000/- was paid on 04.11.2009. It was contended that the total advance of Rs.3/- lakhs was paid and the balance sale consideration payable was Rs.29/- lakhs. It had been contended that the first defendant had to measure the property and fix the boundaries. It had been further contended that the plaintiff was always ready and willing to perform his part of the agreement.
3. It had been further contended that on 04.02.2010, the plaintiff requested the first defendant to come over to the Sub Registrar's office at Nagercoil on 05.02.2010 and receive the entire sale consideration and execute the sale deed with respect to the plaint schedule property. It was further contended that the plaintiff was waiting at the Sub Registrar's 3/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 Office at Nagercoil on 05.02.2010, but the first defendant did not come. Thereafter, the plaintiff issued a notice on 25.02.2010 asking the first defendant to receive the entire balance of Rs.29/- lakhs and execute the sale deed in favour of the plaintiff. The first defendant sent a reply on 03.03.2010 contending that he was waiting in the Sub Registrar's office on 05.02.2010, but that the plaintiff had only Rs.20/- lakhs and did not have the entire balance sale consideration. The first defendant stated that if the balance sale consideration is paid by way of Demand Draft, he would execute the sale deed. The plaintiff issued a rejoinder on 10.03.2010 that the plaintiff was always ready with the balance sale consideration and calling upon the defendant to provide the documents of the suit schedule property and fix a date for execution of the sale deed. It had been contended that the first defendant did not hand over the documents. It had been contended that thereafter the property was measured on 18.08.2010. The plaintiff then issued a further notice on 30.08.2010 calling upon the first defendant to perform his part of the agreement and fix a date for execution of the sale deed. The first defendant issued a reply on 16.09.2010 that he had executed a gift deed with respect to the property in the name of the 2nd defendant. The first 4/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 defendant also returned the advance amount of Rs.3/- lakhs by way of demand draft to the plaintiff. The plaintiff contended that the said demand draft was never sent to him and that the 1st defendant had deliberately evaded execution of the sale deed. The suit had been filed seeking specific performance of the agreement of sale dated 04.09.2009.
4. The first defendant filed a written statement disputing the contentions raised. He admitted execution of the agreement and further admitted the receipt of the advance amount. However, he contended that the plaintiff could not mobilise the balance sale consideration and evaded measuring the property. He stated that it was the plaintiff, who had not performed his part of the agreement and not paid the balance sale consideration. He also stated that till the date of filing of the written statement, the balance sale consideration had not been deposited in the Court. He, therefore, stated that the suit should be dismissed.
5. On the basis of the said pleadings, the following issues had been framed:
(i) Whether the plaintiff was ready and willing to 5/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 perform his part of the contract;
(ii) Whether the plaintiff was entitled for the relief of specific performance as prayed for; and
(iii) To what relief .”
6. During trial, the plaintiff examined himself as P.W.1 and marked Ex.A1 to Ex.A10. Ex.A1 was the agreement of sale dated 04.09.2009 and Ex.A2, Ex.A3, Ex.A4, Ex.A6, Ex.A8 and Ex.A9 were notices exchanged between the parties. Ex.A10 was the copy of the settlement deed executed by the first defendant in favour of the 2nd defendant.
7. The first defendant examined himself as D.W.1 and marked Ex.B1 to B4. Ex.B1 was the copy of the reply notice and Ex.B4 was the copy of the demand draft for a sum of Rs.3/- lakhs taken by the defendant in the name of the plaintiff. During trial, a Commissioner had also been appointed and report of the Commissioner was marked as C1.
8. On the basis of the aforementioned evidence, the learned trial Judge came to the conclusion that the plaintiff was ready with the 6/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 balance sale consideration to complete his part of the contract. He stated that an advance of Rs.3/- lakhs had been paid out of the total sale consideration of Rs.32/- lakhs. He further noted the statement of the plaintiff that he was waiting in the Sub Registrar's office on 05.02.2010 and had called upon the 1st defendant to come over to execute the sale deed. He further noted that it was the contention of the 1 st defendant that the plaintiff had only a sum of Rs.20/- lakhs but not the balance of Rs.29/- lakhs. But, however, the learned trial Judge was of the opinion that the first defendant had contradicted himself in his evidence. The learned trial Judge further held that there was an obligation on the first defendant to measure the property and to produce the title deeds. He stated that since the first defendant did not perform that part of the agreement, the plaintiff cannot be non-suited. Holding that the plaintiff was always ready and willing to perform his part of the agreement, the learned trial Judge proceeded to decree the suit as prayed for and decreed the suit. Questioning that decree, the 1st and 2nd defendants have filed the present appeal.
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9. The learned counsel for the appellants pointed out that both the appellants and the respondent were residing in two separate portions of the suit property. He stated that the agreement had been entered into on 04.09.2009 with respect to the suit schedule property and the respondent had paid an advance of Rs.3/- lakhs out of the total sale consideration of Rs.32/- lakhs. The learned counsel contended that the issue of readiness and willingness had not been properly addressed by the learned trial Judge. The learned counsel contended that the plaintiff had never proved that he was ready with the balance sale consideration and was also willing to part take with the same. Even during the trial, no documents had been filed to show the availability of the balance sale consideration with the respondent. The learned counsel contended that in the absence of any documentary evidence to show that the respondent was possessed of the funds, a decision could not be arrived that the respondent was ready and willing to perform his part of the agreement. The learned counsel further pointed out that even the advance sale consideration had been returned back by the appellant by way of demand draft to the respondent. He stated that however the amount had been re-credited to the account of the appellants. It was contended that since the respondent 8/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 had not proved readiness and willingness, the relief of specific performance should not have been granted by the learned trial Judge.
10. The learned counsel for the respondent however contended that out of the total sale consideration, which had been determined as Rs.32 lakhs, an advance of Rs.3/- lakhs had been paid. He contended that there was a reciprocal obligation by the appellants to measure the property and to produce the title deeds of the property. He contended that the respondent was waiting in the Sub Registrar's office on 05.02.2010 and the first appellant never appeared before the Sub Registrar's Office. He contended that the respondent was always ready and willing to perform his part of the obligation. He stated that the learned trial Judge had considered the evidence available on record in their correct perspective and had come to a correct conclusion to decree the suit. The learned counsel therefore contended that the appeal should be dismissed.
11. We have carefully considered the arguments advanced on either side and perused the materials available on record. 9/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020
12. The following point arises for consideration:
“(i) Whether the learned trial Judge had correctly appreciated the evidence on record to hold that the respondent was ready and willing to perform his part of the agreement?”
13. The suit had been filed seeking specific performance of an agreement of sale dated 04.09.2009, which had been marked as Ex.A1. In the suit property, the appellants herein were residing in the southern portion and the respondent was residing in the northern portion. It had been contended that the first appellant, who was the owner of the property had an intention to sell the same. An agreement of sale had been entered into on 04.09.2009. This fact is neither denied nor disputed by either party. The total sale consideration was determined at Rs.32/- lakhs. This fact is also neither denied nor disputed. An advance amount of Rs.3/- lakhs had been paid. Again this fact is also neither denied nor disputed. The respondent had an obligation to pay the balance sale consideration of Rs.29/- lakhs. It is contended that he was waiting in the Sub Registrar's office on 05.02.2010 with the balance sale consideration. He had requested the first appellant to come over to the Sub Registrar's 10/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 office and execute the sale deed. The contention of the first appellant in this regard is that he also went over to the Sub Registrar's office on 05.02.2010 with an intention to execute the sale deed but that the respondent had only Rs.20/- lakhs and not Rs.29/- lakhs and therefore, he had not executed the sale deed. There is no documentary evidence produced by the respondent to show availability of the balance sale consideration of Rs.29 lakhs. The Court will therefore have to examine the issue based on the notices, which had been exchanged between the parties to determine whether the respondent was bona fide in his intention to pay the balance sale consideration to the appellants.
14. The first notice/Ex.A2, which had been issued, was dated 25.02.2010. In that notice, it had been contended that the first appellant had agreed to measure the suit schedule property but that he had not done so. It had been further contended that on 05.02.2010, the respondent was waiting with the balance sale consideration but that the first appellant did not come to the Sub Registrar's office. The first appellant was therefore called upon to receive the balance sale consideration and execute the sale deed. A reply notice was issued on behalf of the first appellant dated 11/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 03.03.2010. It was marked as Ex.A3. In that particular reply notice, it had been very specifically stated that the first appellant was ready to execute the sale deed provided the respondent paid the balance sale consideration of Rs.29/- lakhs by demand draft within a period of 7 days from the date of receipt of the notice. It was further contended that if the said amount was not paid, it should be construed that the contract is broken and that the respondent can receive back the advance amount of Rs.3/- lakhs. It is thus seen that the first appellant was always ready to execute the sale deed, provided the respondent paid the balance sale consideration.
15. It is the contention of the respondent that the appellant had an obligation to measure the suit property. This condition will however have to be examined in conjunction with the fact that the respondent was already residing in a portion in the suit property. He therefore cannot disclaim ignorance or lack of knowledge of the lay of the land. In the plaint, he had very specifically stated that he had been residing in the northern portion of the suit schedule property from the year 2004 onwards. The agreement had been entered into in the year 2009, which 12/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 means that for five previous years, the respondent was already in occupation. Therefore, we hold that this contention of the respondent that unless the appellants measure the property, he would not come forward to pay the balance sale consideration only indicates that the respondent was not ready with the balance sale consideration and even if he possessed the balance sale consideration, he was not willing to pay the same to the appellants.
16. The exchange of notices thereafter continued by Ex.A4 dated 10.03.2010. The counsel for the respondent stated that the appellants had no right to claim the entire balance sale consideration of Rs.29/- lakhs and that the appellants should first measure the property. Even in the said notices, it had been admitted that the respondent was already residing in the portion of the said property as a tenant under the appellants.
17. In N.P.Thirugnanam (Dead) by LRs. vs. Dr.R.Jagan Mohan Rao and others reported in (1995) 5 SCC 115 : AIR 1996 SC 116, the Hon'ble Supreme Court had held as follows:-
''5. It is settled law that remedy for specific 13/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short “the Act”). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available.14/21
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.''
18. In C.S.Venkatesh vs. A.S.C.Murthy (Dead) by Legal Representatives and others reported in (2020) 3 SCC 280, the Hon'ble Supreme Court had held as follows:-
''16. The words “ready and willing” imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and 15/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.''
19. In Pushparani S.Sundaram vs. Pauline Manomani James reported in (2002) 9 SCC 582, the Hon'ble Supreme Court had held as follows:-
''5. … So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at 16/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020 the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.''
20. In Umabai vs. Nilkanth Dhondiba Chavan reported in (2005) 6 SCC 243, the Hon'ble Supreme Court had held as follows:-
''30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the respondent-plaintiffs were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the respondent- plaintiffs must be judged having regard to the entirety of the pleadings as also the evidence brought on record.'' 17/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm ) AS(MD). No.205 of 2020
21. The dictum laid down in the aforementioned judgments is that the respondent should have been ready with the balance sale consideration right from the date of the agreement onwards. The relevant dates are also significant. The agreement was dated 04.09.2009. The reply notice calling upon the respondent to pay the balance sale consideration by way of demand draft was dated 03.03.2010. Even after that the respondent had not paid the balance sale consideration. He had also not deposited the balance sale consideration at the time of filing of the suit. It is imperative that the respondent should have proved readiness by establishing possession of the balance sale consideration and willingness to part take with the same. There are no documents produced during the course of trial that the respondent had in his possession the balance sale consideration. The only documents filed are notices exchanged between the parties apart from the agreement of sale and the settlement deed executed by the first appellant in favour of the second appellant. Moreover, the suit had also been filed only on
07.10.2010 after nearly seven months from the date on which the first appellant had called upon the respondent to pay the balance consideration by way of demand draft.
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22. The contention of the respondent that the appellants should have measured the property cannot be countenanced, since the respondent was already residing in a portion of the suit property and therefore, cannot disclaim ignorance of either the area of the suit property or of its physical features. We hold that the said contention has been raised only to avoid payment of balance sale consideration and to drag the matter. We hold that no bona fide has been exhibited by the respondent herein in claiming readiness and willingness to pay the balance sale consideration.
23. In view of these reasons, we hold that the learned trial Judge had not come to a correct decision while holding that the respondent was ready and willing to pay the balance sale consideration. There is not even one document to show the availability of funds with the respondent to pay the balance sale consideration.
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24. In view of these reasons, the point is answered that the learned trial judge had misdirected himself in analyzing the evidence available on record with respect to the issue of readiness and willingness. We hold that the respondent was not ready and willing to pay the balance sale consideration. The appeal, therefore, stands allowed and the suit in OS No.165/2010 stands dismissed. However, there shall be no order as to costs. Consequently connected Miscellaneous Petition is closed.
[C.V.K,J] [R.V,J]
26.11.2025
NCC : Yes
Index : Yes
RR
To
1.The Principal District Court, Kanyakumari at Nagercoil
2.VR Section Madurai Bench of Madras High Court,Madurai.
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AND R.VIJAYAKUMAR, J.
RR Pre-delivery judgment made in AS(MD) No.205 of 2020 Date : 26.11.2025 21/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/01/2026 06:16:44 pm )