Madras High Court
G.Sundarraj vs Meenakshi on 21 August, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 21.8.2012 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.732 of 2009 G.Sundarraj ... Appellant vs. Meenakshi ... Respondent Appeal against the judgement and decree dated 31.1.2008 passed by the Additional District Judge, Fast Track Court No.4, Bhavani, Erode District in O.S.No. 3 of 2005. For appellant :: Mr.N.Sankaravadivel For Respondent :: Mr.N.Manokaran JUDGEMENT
This appeal is focussed by the plaintiff in the suit as against the judgement and decree dated 1.1.2008 passed by the Additional District Judge, Fast Track Court No.4, Bhavani, Erode District in O.S.No. 3 of 2005, which was one for specific performance of an agreement to sell.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of these appeals, in a few broad strokes can be encapsulated thus:
(i) The appellant/plaintiff filed the suit O.S.No.3 of 2005 seeking specific performance based on the agreement to sell-Ex.A1 dated 12.6.1987, purported to have emerged between the plaintiff and the defendant(Meenakshi) in respect of 1/7th undivided share of the defendant in a vast extent of agricultural land of 22 acres and odd.
(ii) The defendant resisted the suit disputing the genuineness of the agreement to sell.
(iii) Whereupon issues were framed. During trial, the plaintiff examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A24 were marked. The defendant examined herself as D.W.1 along with D.Ws.2 & 3 and Exs.B1 to B3 were marked.
(iv) Ultimately, the trial Court dismissed the suit.
(v) Being aggrieved by and dissatisfied with the said judgement and decree of the trial Court, this appeal has been filed on various grounds.
4. The indubitable and indisputable facts could succinctly and precisely be set out thus:
(i) A vast extent of land measuring 22 acres and odd, as found described in the schedule of the plaint, belonged to as many as seven female members. At the time of the alleged emergence of the agreement to sell-Ex.A1, there was no partition among those seven persons. Two persons among those seven persons, namely, Meenakshi-the defendant herein and Ramayammal (the defendant in O.S.No.1 of 2009) filed the partition suit O.S.No.1 of 2004 (O.S.No.20 of 2004 on the file of the Fast Track Court, Bhavani) during the year 2004.
(ii) Thereafter, the plaintiff did choose to issue a notice, calling upon the defendant-Meenakshi to execute a sale deed in his favour in respect of her 1/7th share, based on the suit agreement to sell Ex.A1 dated 12.6.1987. Inasmuch as the said suit notice was replied by her denying and refuting the agreement to sell; the plaintiff filed the present suit.
5. The learned counsel for the appellant herein/plaintiff, by placing reliance on the grounds of appeals would develop his arguements, which could pithily and precisely be set out thus:
(i) The defendant Meenakshi was not consistent in her deposition; she had prevaricative stands; she even went to the extent of disowning her admitted signatures; in one breathe she would acknowledge her signature in Ex.A3-the postal acknowledgement card, which emerged relating to the pre-suit litigation notice, whereas, in another breathe she would state that her signature was concocted by additions etc. As such, her stand was not consistent with regard to her challenge as against the genuineness of the suit agreement to sell-Ex.A1.
(ii) The agreement to sell can never be termed as one bared by limitation and for that matter, the plaintiff also cannot be found fault with for laches. The clauses in the agreement to sell would ex facie and prima facie exemplify and demonstrate that the entire sale consideration relating to 1/7th share of the defendant was paid as on the date of emergence of the agreement to sell Ex.A1.
(iii) In fact, the plaintiff was in possession, as a lessee, in respect of the entire 22 acres and odd. There was nothing more to be performed on his part. Whereupon the defendant gave full authority to the plaintiff to get the sale deed executed as and when he might choose and that she would respond positively without any demur for executing the sale deed. When such is the factual as well as the legal circumstances in favour of the plaintiff, the lower Court failed to take note of the same, but simply looked askance as to the genuineness of the agreement to sell and dismissed the suit, warranting interference in appeal.
(iv) There is no consistency between the plea taken in the written statement and her stand during the trial. In one breathe the defendant would plead as though in blank papers her signatures were obtained and in another breathe she would disown her signatures in Ex.A1.
(v) The defendant would, in her written statement plead as though the appellant herein/plaintiff was paying a sum of Rs.9,000/- annually as rent to Muthammal and her daughter and after the death of Muthammal such rent was paid to all the daughters including the defendant and only thereafter, the appellant was allegedly evicted. However, D.W.1-the defendant subsequently deposed as though the appellant was not at all a lessee in respect of the said property. The very fact that after the emergence of Ex.A1 during the year 1987 and till the year 2004, the defendant simply kept quiet, would speak volumes that she never objected to the plaintiff's claim over the suit property.
Accordingly, the learned counsel for the appellant herein/plaintiff would pray for setting aside the judgement and decree of the lower Court and for decreeing the suit. The rest of his arguements is referred to in appropriate places infra.
6. Per contra, in a bid to extirpate and torpedo the pleas and arguements as put forth and set forth on the side of the appellant/plaintiff, the learned counsel for the defendant would advance his arguements, which could pithily and precisely be set out thus:
(i) The plaint is nothing but a load of baloney fraught with falsities and inconsistencies.
(ii) No person who is in a possession of a genuine agreement to sell of the year 1987 would wait till the year 2004 for getting it specifically enforced.
(iii) The defendant herein and her sister Ramayammal filed the partition suit during the year 2004, citing the plaintiff herein also as one of the defendants, namely, 8th defendant, and in the interlocutory proceedings in that suit, counter and additional counter were filed by the same plaintiff herein as D8 therein. In the original counter filed therein, there is no whisper about the present suit agreement to sell -Ex.A1; however, in the additional counter he would detail about Ex.A1.
(iv) The fact also remains that only after the filing of the partition suit by the plaintiff and her sister, the present plaintiff herein, who is D8 therein, did choose to issue the notice seeking specific performance. As such, the said agreement to sell-Ex.A1 herein is nothing but a forged and fabricated document and it was not earlier referred to in any proceedings before any authority.
(v) Admittedly, during the year 1990, the plaintiff herein sold a portion of the suit property without the back up of the sale deed in his favour; the plaintiff as vendor, while selling a portion of the suit property in favour of the third party, described the said property as the ancestral property and not as the property, which he had been allegedly enjoying as the agreement holder.
(vi) There is also nothing to show on what basis the plaintiff got the patta transferred in his favour and there is no reference about the suit agreement to sell before any authority.
(vii) The undisputed fact is that the defendant is an aged and illiterate lady, wherefore she might not have been having good memory to precisely put forth her pleas while she was being cross-examined and the plaintiff cannot try to make a mountain out of a mole hill.
(viii) The lower Court taking into account the pro et contra, appropriately disbelieved the case of the plaintiff and dismissed the suit.
(ix) In the plaint, in adherence to Section 16 of the Specific Relief Act there should be an averment to the effect that the plaintiff has been ready and willing to perform his part of the contract throughout ever since the emergence of the agreement to sell, but in this case, the plaint is conspicuous of its missing, whereupon the plaintiff cannot be held to be the one who is entitled to get the sale deed executed in his favour.
Accordingly, the learned counsel for the defendant would pray for dismissal of the appeal. The rest of his arguements is referred to infra in appropriate places.
7. The points for consideration are as under:
(i) Whether the plaint is bad for want of a specific averment to the effect that the plaintiff has been ready and willing to perform his part of the contract throughout?
(ii) Whether the suit is barred by limitation?
(iii) Whether the suit agreement to sell Ex.A1, was proved to be a genuine one?
(iv) Whether the plaintiff was not suffering from any personal bar as contemplated under Section 16 of the Specific Relief Act and whether the plaintiff's case is not one falling foul of Section 20 of the Specific Relief Act?
(v) Whether the plaintiff had been ready and willing to perform his part of the contract throughout?
(vi) Whether there is any perversity or illegality in the judgement passed by the lower Court?
8. All these points are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with one another.
9. Ex.A1 is purported to be an agreement to sell, upon which the plaintiff is relying, to get his suit decreed for specific performance in his favour. In such a case, the initial burden is on the plaintiff to prove that the said agreement to sell is a genuine one and he has been ready and willing to perform his part of the contract throughout.
10. The learned counsel for the plaintiff would precisely put froth his arguement to the effect that this is a singularly singular case, in which the entire sale consideration relating to 1/7th share of the defendant in the larger extent of land was paid as on the date of emergence of Ex.A1-the agreement to sell and there was nothing more on his part to perform under Ex.A1; over and above that the clauses in Ex.A1 would recite that unfettered and unlimited right was given to the plaintiff to get the sale deed executed whenever he might find it convenient to get executed in his favour. As such, the principle of estoppel could rightly be applied as against the defendant and virtually the defendant is having no defence at all in the suit, even then the lower Court failed to take note of all these facts.
11. Whereas, the learned counsel for the defendant would counter the arguement of the learned counsel for the plaintiff by pointing out that the recital in Ex.A1 in no way gives unlimited power to the plaintiff to flout Sections 16 and 20 of the Specific Relief Act.
12. Hence, at this juncture, it is just and proper to refer to the decisions cited on both sides.
(b) On the side of the appellant/plaintiff the following decisions are cited:
(i) AIR 1985 BOMBAY 128 TRIMBAK SHANKAR TIDKE V. NIVRATTI SHANKAR TIDKE, certain excerpts from it would run thus:
"6. As stated above at the outset, this view is hypertechnical. Such a view should not be taken in any Court unless the Court is absolutely compelled to take such a hypertechnical view. The point is that in the instant case there was nothing to be performed by the plaintiff at all. The entire amount of Rs.7000/- which was the consideration for the sale deed is already lying in the coffers of the defendant. The possession of the land has already been made over by the defendant to the plaintiff. All that remains to be done is the execution of the sale deed by the defendant in favour of the plaintiff. So far as the plaintiff is concerned, it is an executed contract on his part; what remains executory is the part to be performed by the defendant. These are the facts averred in the plaint and not denied in the written statement at all. If this is the position, it beats understanding as to what is that part that the plaintiff is yet to perform. Pleadings are intended to reflect the substantive rights claimed by the parties. In the instant case, every shade of the right of the plaintiff stands fully reflected in the plaint. . . . . . . .
If the plaintiff refused to amend the plaint even after such direction by the Court, the court may be required to consider whether the plaintiffs suit for specific performance should be decreed or not in the absence of such necessary averment in the plaint; but all this discussion is academic so far as the present case is concerned. In the present case there remains nothing for the plaintiff to perform towards the contractual obligation. If this is so, failure on his part to express his willingness to perform his obligation is of no legal consequence."
(ii) AIR 1986 MADHYA PRADESH 39 MITHU KHAN V. MS.PIPARIYAWALI AND OTHERS, an excerpt from it would run thus:
"9. Last material submission of the appellant is that, in a case of specific performance of contract, the plaintiff is required to plead and prove that he is ready and willing to perform his part of the contract and absence of such averment shows unwillingness on his part. This submission is not tenable. The plaintiff, after he paid the full amount to respondent and obtained from him the receipt of the last payment, completes his part of the contract. The proof as to readiness and willingness by plaintiff to perform his part of the contract has to be adjudged in the broad perspective. The Court in suitable cases should look into the totality of the circumstances and the allegations made in the plaint and from them come to the conclusion whether necessary allegations have been made by the plaintiff in that regard or not. No particular language or phraseology is needed to be employed by the plaintiff. A literal compliance of the language appearing in the provision is not imperative, nor is this the requirement of law."
(b) On the side of the respondent/defendant, the following precedents are cited:
(i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. Hartar Singh Sangha]; certain excerpts from it would run thus:
"40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations."
(ii) (2011) 1 SUPREME COURT CASES 429 J.P.BUILDERS AND ANOTHER V. A.RAMADAS RAO AND ANOTHER would run thus:
"27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
(iii) 2001(6) SCC 600 A.C.ARULAPPAN V. AHALYA NAIK, certain excerpts from it would run thus:
"9. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son2 this Court cautioned and observed as under: (SCC p. 345, para 14) 14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.
10. In Lourdu Mari David v. Louis Chinnaya Arogiaswamy3 the plaintiff, who sought for specific performance of an agreement to purchase immoveable property, filed a suit with incorrect and false facts. In the plaint, it was alleged that the plaintiff was already given possession of Door No. 2/53 as a lessee and he was given possession of Door No. 1/53 on the date of the agreement itself. But he did not give any evidence that he had got possession of Door No. 1/53 on the date of the agreement. It was found that his case as regards Door No. 1/53 was false. He also alleged that he had paid Rs 400 in addition to the sum of Rs 4000 paid as advance, but this was proved to be an incorrect statement. He alleged that the third defendant had inspected the house during the course of negotiations, but this also was found to be false. This Court held that it is settled law that the party who seeks to avail of the jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words, the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief.
11. In Gobind Ram v. Gian Chand4 it was observed in para 7 of the judgment that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it would be fair, just and equitable. The court is guided by the principles of justice, equity and good conscience.
15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court. The trial court, which had the added advantage of recording the evidence and seeing the demeanour of the witnesses, considered the relevant facts and reached a conclusion. The appellate court should not have reversed that decision disregarding these facts and, in our view, the appellate court seriously flawed in its decision. Therefore, we hold that the respondent is not entitled to a decree of specific performance of the contract."
(iv) 1987 SCC (SUPP) 340 PARAKUNNAN VETTILL JOSEPH'S SON MATHEW V. NEDUMBARA KURUVILLA'S SON AND OTHERS, certain excerpts from it would run thus:
"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex.A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance.
(v) (2006) 2 SUPREME COURT CASES 428 R.K.PARVATHARAJ GUPTA V. K.C.JAYADEVA REDDY;
(vi) 2012(114) AIC 375 (KER H.C.) SUSHEELA (DEAD) AND OTHERS V. T.M.MUHAMMEDKUNHI
(vii) 1995(5) SCC 115 N.P.THIRUGNANAM (DEAD) BY LRS.VS.DR.R.JAGAN MOHAN RAO AND OTHERS
(viii) 2011(2) MWN (Civil) 1 M.KARUPPUSAMY V. S.KARUNAIYAMMAL
(ix) 1998 GAU.92 MD.MOHAR ALI V. MD MAMUD ALI AND OTHERS.
13. I suo moto refer to the following judgements:
(i) 2007-2-L.W.481 [M.Meenakshi & Others v. Metadin Agarwal (D) By LRs & others] "39. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the Courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction should be exercised or not, the orders of a competent authority must also be taken into consideration. While the court upon passing a decree for specific performance of contract is entitled to direct that the same shall be subject to the grant of sanction by the concerned authority, as was the case in Mrs.Chandnee Vidya Vati Madden v. Dr.C.L.Katial and Others [AIR 1964 SC 978] and Nirmal Anand v. Advent Corporation (P) Ltd. And Others [(2002) 5 SCC 481]; the ratio laid down therein cannot be extended to a case where prayer for such sanction had been prayed for and expressly rejected. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted." (Emphasis supplied)
(ii) 2007-4-L.W.36 [Janardhanam Prasad v. Ramdas] "11. The Court, in applying the period of limitation, would first inquire as to whether any time was fixed for performance of agreement of sale. If it is so fixed, the suit must be filed within the period of three years, failing which the same would be barred by limitation. Here, however, no time for performance was fixed. It was for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter.
14. ...Even if the suit was not barred by limitation on that account, it was a fit case, where the Court should have refused to exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963.
17. ...In that view of the matter too, in our opinion, it was a fit case where the discretionary jurisdiction of the Court under Section 20 of the Specific Relief Act should not have been exercised and, instead, monetary compensation could be granted."
(Emphasis supplied)
(iii) 2007 (1) CTC 57 [A.Ganapathy v. S.Venkatesan] "19. In a case of specific performance of a contract, in the judgment reported in Smt.Mayawanti v. Smt.Kaushalya Devi JT 1990 (3) SC 205, the Supreme Court has held as under in paragraphs 8 and 11:
8. ......
"11. .... It is settled law that if a contract is to be made, the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer. The rule is that the acceptance must be absolute, and must correspond with the terms of the offer. If the two minds were not ad idem in respect of the property to be sold, there cannot be said to have been a contract for specific performance. If the parties themselves were not ad idem as to the subject matter of the contract the Court cannot order specific performance...."
(iv) 2003(1) CTC 355 [Arunachala Mudaliar v. Jayalakshmi Ammal and another] "25. ...The plaintiff has not deposited the amount that she should have deposited as per Ex.A7 before filing the suit for specific performance. The defendant had raised the plea that the deposit was not made and it would show the plaintiff's lack of bona fides. In spite of that the plaintiff not only does not deposit the amount before filing the suit, but P.W.1, the plaintiff's husband glibly says in his evidence that he has deposited the amount. The plaint does not even refer to any readiness or willingness to deposit and the suit notice claimed to have been issued has not been proved to have been issued. In the particular circumstance of the case and in view of the specific recitals regarding the deposit the plaintiff cannot be content with citing the explanation to Section 16(c) of the Act without proving his readiness and willingness clearly and beyond doubt." (Emphasis supplied)
(v) (2008) 6 MLJ 587 [Periyaya v. M.Rajagopal and another] "18. In P.V.Joseph's Son Mathew v. N.Kuruvila's Son AIR 1987 SC 2328 : 1987 Supp SCC 340, the Apex Court considered the scope and ambit of Section 20 of the Specific Relief Act and observed thus:
"Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppressions to have an unfair advantage to the plaintiff."
(Emphasis supplied)
(vi) (2008) 6 MLJ 539 [A.Gunasekaran v. K.Damayanthi]
38. .. The decision in K.S.Vidyanandam v. Vairavan, J.T.1997(2) SC 375 is clearly applicable. Specific performance cannot be ordered merely because they are filed within the period of limitation, especially where time limits have been stipulated in the agreement for performance of certain obligations. To disregard the time stipulation would amount to ignoring the understanding between the parties as though it is of no significance or value."
(Emphasis supplied)
(vii) 2008(2) CTC 382 [P.Sampoornam and others v. L.T.Somasundaram and others] "19. ... The relief of specific performance is a discretionary relief and the Courts have to exercise their discretion on sound and reasonable reasons. Even if a doubt arises whether it is probable or possible that an agreement of sale would have been executed at all, the discretionary relief shall not be granted. By analysing the matter in issue as referred to above, I am of the opinion that it is doubtful that the defendants would have executed an agreement of sale with an intention to sell the suit property. Further more, there is no reason for execution of Ex.A11 endorsement since it has not been proved that there was a lessee in the suit property. Further more, after the endorsement dated 30.12.1990, the plaintiffs would not have waited till the issuance of notice under Ex.A.2 dated 13.07.1996. The silence for nearly six years by the plaintiffs causes much doubt whether there was a real agreement of sale between the plaintiffs and the defendants. Merely because the defendants have accepted their signatures in the endorsement under Ex.A.11, conclusion could not be reached that the defendants have entered into an agreement of sale with an intention to sell the suit property."
(viii) 2007(1) CTC 243 [G.Ramalingam v. T.Vijayarangam] "16. ... Even if for a single day, plaintiff-agreement holder is not ready to take the sale deed, the equitable remedy should not be granted. Readiness and willingness must be there continuously from the date of agreement up to the date of hearing. In this case, the concurrent finding is that the appellant was not ready to take the sale deed and that is proved by Ex.A-3" (Emphasis supplied)
(ix) 2007 (2) L.W.791 [1. Chinnakannu Naidu 2. Saroja v. Chinnappan] "16. In Sandhyarani v. Sudha Rani, AIR 1978 S.C. 537, it is laid down "Where there is inordinate delay on the part of the plaintiff to perform his or her part of contract a decree for specific performance can be refused."
(x) (2006) 2 M.L.J.651 [Yesudass (died) and others v. Henry Victor and others] "15. The factum of readiness and willingness to perform part of the contract is to be adjudged with reference to the conduct of the parties and the attending circumstance. The court must infer from the facts and circumstance whether the plaintiff and third defendant were always ready and willing to perform their part of the contract. The facts of this case would amply demonstrate that the plaintiff and third defendant were not ready nor had the capacity to perform their part of the contract as they have no financial capability to pay the consideration in cash as contracted and intended to bite for the time, which disentitles them as time is the essence of the contract. Continuous readiness and willingness at all stages from the date of agreements till the date of hearing of the suit must be proved."
(Emphasis supplied)
(xi) 2008(1) CTC 86 [Sita Ram and others vs. Radhey Shyam] "6. .....He had in that Suit to allege, and if the act was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brings with it and leads to the inevitable dismissal of the Suit."
(Emphasis supplied)
(xii) 2006(4) MLJ 1348 [V.Kanniammal and others v. Anjalakshmiammal (Died) and others] "28. ..... Therefore, the readiness and willingness pleaded and the attempt made to prove the payment of balance of sale consideration, through P.W.3, fails to satisfy the conscience of the Court and in this view, it should be held that there was slackness on the part of the plaintiff to perform her part of the contract and such being the position, even assuming that there was some contract, the same could not be enforced."
14. A survey of the precedents which emerged over a pretty long period, would unambiguously and unequivocally highlight and spotlight the fact that Section 16 of the Specific Relief Act should necessarily be adhered to irrespective of the fact as to any specific plea has been taken by the defendant or not.
15. The Honourable Apex Court as well as the other High Courts in the following precedents:
(i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. Hartar Singh Sangha];
(ii) (AIR 2003 SC 2508)-The Hon'ble Apex Court, in Ramesh Chand Ardawatiya v. Anil Panjwani.
(iii) Judgement of the Calcutta High Court in Monmatha Kumar v. Josada Lal 1924 Cal 647.
(iv) AIR 1926 Oudh 192 - In Ghulam Hussain v. Singer Sewing Machine Company.
(v) AIR 1926 Oudh 192 In Ghulam Hussain v. Singer Sewing Machine Company.
(vi) AIR 1928 Nagpur 165-In Bhujangrao v. Baliram.
shed light on the point that even in an ex-parte matter, the Court is expected to look into the fact as to whether the plaintiff is suffering from any disabilities as contemplated under Section 16 of the Specific Relief Act.
16. IN RE THE POINTS CONCERNING SEC.16 AND SEC.20 OF THE SPECIFIC RELIEF ACT:
It is therefore just and necessary to refer to the relevant clauses in Ex.A1:
@fPH;fz;l rhl;rpfs; Kd;g[ nkw;go fpiuaj; bjhif U:/20.000/00 ,Ugjhapuj;ija[k; ,d;nw ek;kpy; 2 eguhy; 1 egh; buhf;fkha; bgw;Wf; bfhz;lhh; vd;Wk; mjd;go ek;kpy; 2 egh; ve;j njjpapy; ek;kpy; 1 egiu fpiuak; bra;J bfhLf;f Tg;gpl;lhYk; ek;kpy; 1 egh; vt;tpj $thg;g[k; brhy;yhky; rh;t tpy;y';f Rj;jpaha; ek;kpy; 1 eguhYk; mth; jk; thh;Rfs; cl;gl fpiuak; bra;J bfhLf;ft[s;sth;fs;/ mjd;go ek;kpy; 1 egiu 2 egh; fpiuak; bra;J bfhLf;Fk;go Tg;gpl;L 1 egh; tu kWj;jhnyh my;yJ tPz; fhyjhkjk; bra;jhnyh ek;kpy; 2 egh; fpiua cld;gof;ifia rk;ke;jg;gl;l rptpy; nfhh;l;oy; blgh!pl; bra;J nfhh;l; K:yk; fpiuak; bra;J bfhs;s ntz;oaJ mjdhy; ek;kpy; 2 egUf;F Vw;gLk; rfy bryt[fSk; ek;kpy; 1 egiuna nrh;e;jJ vd;Wk; 2 egh; fPH;fz;l brhj;Jf;fis fpiuak; bra;J bfhs;s Kj;jpiuj;jhs; gjpt[ fl;lzk; MfpaitfSf;F jw;rkak; gzk; ,y;yhikahy; fpiuaj; bjhifia KGtJk; 2 egh; 1 eghplk; brYj;jpa[k; fpiuak; bra;J bfhs;stpy;iy/ mjw;Fz;lhd gzk; nrfhpj;jt[ld; ve;j njjpapy; ek;kpy; 2 egh; 1 egiu fpiuak; bra;J bfhLf;f Tg;gpl;lhYk; nkw;go tPjk; fpiuak; bra;J bfhLf;ft[s;sth;/@
17. A plain running of the eye over those portions of Ex.A1 would convey and portray that the plaintiff himself undertook that he would get the sale deed executed no sooner he would be in a position to have the requisite money for getting the sale deed scribed and registered, which means, the plaintiff was not in possession of sufficient funds as on the date of emergence of Ex.A1, which fact the plaintiff unambiguously and unequivocally, pulling no punches admitted in Ex.A1-the agreement itself.
18. When such is the unassailable and unarguable factual scenario, the core question would arise as to how it would lie in the mouth of the plaintiff to contend that ever since 1987 till 2004 he did not have had sufficient funds to purchase non-judicial stamp papers and also to get the sale deed scribed and registered. Absolutely, the plaint is silent as silence could be.
19. At this juncture, I would like to refer to explanation (ii) appended to clause (c) to Section 16 of the Specific Relief Act:
"Sec.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.
Explanation For the purpose of clause (c)
(i) . . . . .
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
which would contemplate that there should be a specific averment in the plaint itself as to the readiness and willingness to perform his part of the contract throughout.
20. On this point also, once again the learned counsel for the plaintiff, by citing the judgements reported in AIR 1985 Bombay 128 Trimbak Shankar Tidke v. Nivratti Shankar Tidke and AIR 1986 Madhya Pradesh 39 Mithu Khan v. Ms.Pipariyawali and Others, referred to supra, would reiterate that absolutely there was no legal duty cast upon the plaintiff to plead that he was ready and willing to perform his part of the contract, because he paid the entire sale consideration and the defendant also empowered the plaintiff to get the sale deed executed as and when he might require.
21. Such an arguement fails to carry conviction with this Court for the simple reason that the document-Ex.A1 itself would recite that the plaintiff would get the sale deed executed no sooner he would get sufficient funds for getting the sale deed scribed on non-judicial stamp papers and registered. There should have been sufficient averments in the plaint as to what prevented the plaintiff from having such meagre amounts for getting the sale deed executed, for almost 17 years.
22. Certain excerpts from the plaint would run thus:
"IV. The plaintiff has been in possession and enjoyment of 1/7 share of the defendant in the schedule property ever since the date of agreement of sale. The plaintiff was expressing his readiness and willingness in the last weak of the month December 2003 to get the sale deed from the defendant in the month of Thai 2004 as it is an auspicious month. The defendant had agreed to execute the sale deed conveying her 1/7 share in the schedule property to the plaintiff in compliance with the demand of the plaintiff. Instead of executing the sale deed in favour of the plaintiff, the defendant rushed to the court and filed a frivolous suit in O.S.No. 1 of 2004 on the file of the Sub Court, Bhavani, against the plaintiff and others and the said suit was transferred to Fast Track Court, Bhavani, and renumbered as O.S.No.20 of 2004. The defendant has deliberately suppressed the agreement of sale of her share of property with the plaintiff, with a mala fide intention to defeat the plaintiff's right to purchase the sale from the defendant. This plaintiff is hotly contesting the said suit. He is entitled to enforce the agreement of sale against the defendant in the suit though the defendant's suit for partition is pending in the Fast Track Court, Bhavani. After having come to know of the suit filed by the defendant for the partition in the Sub Court, Bhavani, in the 3rd week January 2004. The plaintiff did not expect that the defendant would come forward to execute the sale deed in favour of the plaintiff in pursuance of agreement of sale. Therefore the plaintiff was forced to issue registered notice to the defendant on 10.7.2004 calling upon her to fix a date with time and venue of execution of the sale deed within 3 days of the receipt of notice by her. Though the defendant received the notice on 12.7.2004, she has not yet intimated of the plaintiff about her consent to execute the sale deed. The plaintiff is even now ready to get the sale deed from the defendant at his own expenses. Hence, the plaintiff has filed the suit for specific performance of agreement for sale against this defendant." (extracted as such)
23. What one could notice in respect of the mandate as contemplated under Section 16 of the Specific Relief Act, is only the above said excerpt in the plaint. Absolutely there is no expounding or explanation, elucidation or detailing of the fact as to what made the plaintiff to keep quiet till the year 2003 ever since 1987. There is no legal answer to it.
24. My mind is reminiscent and redolent of the following maxims:
'Certum est quod certum reddi potest' That is certain which can be rendered certain.
25. No doubt, apparently and pellucidly the time limit is not set out in Ex.A1. However, the reading of the clauses and the recitals as extracted supra would demonstrate and display, convey and portray that time limit is found impliedly mentioned in Ex.A1 to the effect that no sooner the plaintiff would acquire the sufficient funds for purchase of the requisite non-judicial stamp papers and for registration of the document, he would get the sale deed executed in his favour.
26. The learned advocates on both sides, without any contradiction between themselves, would in unison submit before this Court that at the time of emergence of Ex.A1 the non-judicial stamp papers required for registration of a sale deed contemplating a sale consideration of a sum of Rs.20,000/-, was Rs.2,400/- and the registration charges and the scribe charges, it all taken together, totally it would come to an amount not exceeding Rs.3,000/-.
27. Now the pertinent question arises as to whether the plaintiff was justified in keeping quiet for 17 long years to raise such meagre sum of Rs.3000/- and get the sale deed executed in his favour. Absolutely there is no plausible answer in favour of the plaintiff.
28. At this juncture, it is just and necessary to refer to the following decisions:
(i) (1997) 3 SUPREME COURT CASES 1 K.S.VIDYANADAM AND OTHERS V. VAIRAVAN, certain excerpts from it would run thus:
"10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani1: (SCC p. 528, para 25) ... it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract. In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades particularly after 1973*. In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? The plaintiff says that he has been calling upon Defendants 1 to 3 to get the tenant vacated and execute the sale deed and that the defendants were postponing the same representing that the tenant is not vacating the building. The defendants have denied this story. According to them, the plaintiff never moved in the matter and never called upon them to execute the sale deed. The trial court has accepted the defendants' story whereas the High Court has accepted the plaintiff's story. Let us first consider whose story is more probable and acceptable. For this purpose, we may first turn to the terms of the agreement. In the agreement of sale, there is no reference to the existence of any tenant in the building. What it says is that within the period of six months, the plaintiff should purchase the stamp papers and pay the balance consideration whereupon the defendants will execute the sale deed and that prior to the registration of the sale deed, the defendants shall vacate and deliver possession of the suit house to the plaintiff. There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981. It is not the plaintiff's case that within six months', he purchased the stamp papers and offered to pay the balance consideration. The defendants' case is that the tenant is their own relation, that he is ready to vacate at any point of time and that the very fact that the plaintiff has in his suit notice offered to purchase the house with the tenant itself shows that the story put forward by him is false. The tenant has been examined by the defendant as DW 2. He stated that soon after the agreement, he was searching for a house but could not secure one. Meanwhile (i.e., on the expiry of six months from the date of agreement), he stated, the defendants told him that since the plaintiff has abandoned the agreement, he need not vacate. It is equally an admitted fact that between 15-12-1978 and 11-7-1981, the plaintiff has purchased two other properties. The defendants' consistent refrain has been that the prices of house properties in Madurai have been rising fast, that within the said interval of 2 1/2 years, the prices went up three times and that only because of the said circumstance has the plaintiff (who had earlier abandoned any idea of going forward with the purchase of the suit property) turned round and demanded specific performance. Having regard to the above circumstances and the oral evidence of the parties, we are inclined to accept the case put forward by Defendants 1 to 3. We reject the story put forward by the plaintiff that during the said period of 2 1/2 years, he has been repeatedly asking the defendants to get the tenant vacated and execute the sale deed and that they were asking for time on the ground that tenant was not vacating. The above finding means that from 15-12-1978 till 11-7-1981, i.e., for a period of more than 2 1/2 years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendants' case that the values of the house property in Madurai town were rising fast and this must have induced the plaintiff to wake up after 2 1/2 years and demand specific performance.
11. Shri Sivasubramaniam cited the decision of the Madras High Court in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar2 holding that mere rise in prices is no ground for denying the specific performance. With great respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties fuelled by large-scale migration of people from rural areas to urban centres and by inflation. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs 5000 and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs 5000 (as against the total consideration of Rs 60,000) the plaintiff did nothing until he issued the suit notice 2 1/2 years after the agreement. Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties evolved in times when prices and values were stable and inflation was unknown requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. The learned counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).
14. Shri Sivasubramaniam then relied upon the decision in Jiwan Lal (Dr) v. Brij Mohan Mehra4 to show that the delay of two years is not a ground to deny specific performance. But a perusal of the judgment shows that there were good reasons for the plaintiff to wait in that case because of the pendency of an appeal against the order of requisition of the suit property. We may reiterate that the true principle is the one stated by the Constitution Bench in Chand Rani1. Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.
(ii) (2002) 1 SUPREME COURT CASES 134 VEERAYEE AMMAL V. SEENI AMMAL , certain excerpts from it would run thus:
"13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncracy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P.Ramanatha Aiyar's The Law Lexicon it is defined to mean:
"A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea."
14. In the instance case the parties had agreed to complete the sale by 15.6.1980 despite the fact that the time was not of the essence of the contract. The appellant-plaintiff is stated to have issued letters to the respondent-defendant calling upon to execute the sale deed and thereafter also issued notice. It was further alleged and held proved by the course of fact that the nature of the property was wetland which continued to be such during the trial. As the appellant-plaintiff had contracted to purchase the land with a view to construct a residential house, the respondent-defendant had undertaken to remove the telegraph pole in hone part of the property. The trial as well as the first appellate Court found that in pursuance of the agreement the said pole was got removed in the first week of November 1980 and the appellant-plaintiff issued a notice (Exhibit A-4) on 11.11.1980 calling upon the respondent-defendant to execute the sale deed. The appellant-plaintiff also made a publication on 13.11.1980 in a daily newspaper intimating the people at large not to purchase the property of the respondent-defendant as the same was the subject-matter of agreement to sell executed in favour of the appellant-plaintiff. On the failure of the respondent-defendant to comply with the conditions of the agreement, the demands made in the letters and the notice, the appellant-plaintiff filed O.S.No.1249 of 1980 in the month of November 1980 itself. The legal action initiated by the appellant-plaintiff was rightly held by the trial Court and the first appellate Court to have been commenced without delay and definitely within a reasonable time. The High Court was not justified in disturbing the finding of fact arrived at on appreciation of the evidence, while disposing of the second appeal."
(iii) (1993) 1 SUPREME COURT CASES 519 CHAND RANI (SMT) (DEAD) BY LRS. V. KAMAL RANI (SMT)(DEAD) BY LRS., certain excerpts from it would run thus:
"29. The analysis of evidence would also point out that the plaintiff was not willing to pay this amount unless vacant delivery of possession of one room on the ground floor was given. In cross-examination it was deposed that since income tax clearance certificate had not been obtained the sum of Rs 98,000 was not paid. Unless the property was redeemed the payment would not be made. If this was the attitude it is clear that the plaintiff was insisting upon delivery of possession as a condition precedent for making this payment. The income tax certificate was necessary only for completion of sale. We are unable to see how these obligations on the part of the defendant could be insisted upon for payment of Rs 98,000. Therefore, we conclude that though as a general proposition of law time is not the essence of the contract in the case of a sale of immovable property yet the parties intended to make time as the essence under clause (1) of the suit agreement. From this point of view, we are unable to see how the case in Nathulal4 could have any application to the facts of this case.
30. The next question is whether the plaintiff was ready and willing? The notices which were exchanged between the parties have to be looked into in determining readiness and willingness. On September 10, 1971 the plaintiff would say through the registered notice that ready money was available for purchase of the property which was followed up by a telegram. The stand is taken by the defendant that within 10 days from August 26, 1971, the sum of Rs 98,000 was not paid; hence, the sum of Rs 30,000 stood forfeited. The redemption of the mortgage would be done and the income tax clearance also would be obtained after the purchase of stamp paper. Where, therefore, the plaintiff was put on notice as to the stand of the defendant with regard to payment of Rs 98,000 which again was reiterated in the notice dated September 16, 1973, nothing would have been easier for the plaintiff than to pay the said sum. Instead of adopting that course what is stated in the notice dated September 24, 1971 by the plaintiff is as follows:
5. That as per agreement, your clientess has to pay all taxes, rates, municipal taxes up to the date of registration and that the previous and other documents pertaining to the said plot No. 30, Block K, sanctioned plan and completion certificates from Municipal Corporation of Delhi in respect of the superstructure built on the said plot shall be handed over along with the vacant possession of first floor by September 30, 1971.
You know that September 30, 1971 is fast approaching and your clientess is still to comply with these requirements besides mentioned in para Nos. 2 and 3 of the agreement.
I, therefore, call upon you to advise your clientess to comply with the requirements well before September 30, 1971 or latest by September 30, 1971 and obtain the further part consideration of Rs 98,000 from my clientess.
31. Therefore, even as late as September 24, 1971 the plaintiff was never willing to make the payment of Rs 98,000. In this connection, we have already seen the oral evidence. It shows there was no readiness and willingness. We are in agreement with the conclusion of the Division Bench."
(iv) 2011(4) CRC 640 SARADAMANI KANDAPPAN V. S.RAJALAKSHMI & OTHERS=(2011)12 SCC 18, certain excerpts from it would run thus:
"28. The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. If, for example, the vendor discloses in the agreement of sale, the reason for the sale and the reason for stipulating that time prescribed for payment to be the essence of the contract, that is, say, need to repay a particular loan before a particular date, or to meet an urgent time-bound need (say medical or educational expenses of a family member) time stipulated for payment will be considered to be the essence. Even if the urgent need for the money within the specified time is not set out, if the words used clearly show an intention of the parties to make time the essence of the contract, with reference to payment, time will be held to be the essence of the contract.
29. Let us consider the terms of the agreement of sale in this case to find out whether time was the essence. The standard agreements of sale normally provide for payment of earnest money deposit or an advance at the time of execution of agreement and the balance of consideration payable at the time of execution/registration of the sale deed. In the absence of contract to the contrary, the purchaser is bound to tender the balance consideration only at the time and place of completing the sale [see clause (b) of Section 55(5) of the Transfer of Property Act, 1882 (the TP Act, for short)]. In this case we find that there is a conscious effort to delink the terms relating to payment of balance price (Clauses 4, 5 and 6) from the term relating to execution of sale deed (Clause 7) and making the time essence only in regard to the payment of the balance sale consideration. There is also a clear indication that while time would be the essence of the contract in regard to the terms relating to payment of balance price, time would not be the essence of the contract in regard to the execution of the sale deed.
30. The intention making time essence of the contract for payment of balance price is clear from the following:
(a) Clause 4 requires the balance consideration to be paid in three instalments, that is, Rs 1,00,000 on or before 28-2-1981; Rs 1,00,000 on or before 6-4-1981; and Rs 75,000 on or before 30-5-1981;
(b) Clause 5 makes it clear that if any of the above mentioned dates of payment is subsequently declared as a holiday, then the next immediate working day shall be the date of payment. This shows a clear intention that payment should be made on the stipulated dates and even a days delay was not acceptable unless the due date was declared to be a holiday;
(c) Clause 6 specifically stipulates that the payments on due dates is the essence of the contract and in case of failure on the part of the purchaser the vendors shall cancel the agreement.
31. On the other hand, if we look at the terms relating to performance of sale, there is a clear indication that time was not intended to be the essence, for completion of the sale. Clause 3 provides that the execution of sale deed shall depend upon the second party (the purchaser) getting satisfied regarding the title to the lands, so also the nil encumbrance. It is significant that the said clause does not say that payment of balance consideration shall depend upon the purchaser getting satisfied regarding title or nil encumbrances. Clause 7 provides that the sale deed shall be executed at the convenience of the purchaser, as and when she wants them to be executed either in her name or in the name of her nominee or nominees. Clause 12 provides that if the second party (the purchaser) finds the title of the properties to be unsatisfactory or unacceptable, the vendors shall be put on notice about her intention not to conclude the sale and in such an event, if the vendors fail to satisfy the purchaser regarding their title, the vendors shall pay to the purchaser within three months from that date, all monies advanced by the purchaser till then. It is thus evident from Clause 12 also that the payments of balance sale price in three instalments on the specified due dates were not dependent upon the further examination of title or the satisfaction of the purchaser about the title."
29. The plaintiff cannot plead carte blanche in his favour and simply at his whims and fancies approach the Court for specific performance.
30. As such, applying the dicta as found exemplified and expatiated in the aforesaid precedents, if the facts on hand are analysed it is glaringly and pellucidly clear that there are laches on the part of the plaintiff in filing the suit for specific performance.
31. The learned counsel for the plaintiff would cite the second part of Section 54 of the Limitation Act and he would also place reliance on the following decision of the Honourable Apex Court:
2006(4) CTC 326 K.BALARAMAN AND OTHERS V. PATTAMMAL AND OTHERS, certain excerpts from it would run thus:
"It is argued by the learned counsel for the appellants that the suit is barred by limitation. The parties have entered into an agreement, Ex.A1 on 20.08.1980 wherein, admittedly, there is no specific date fixed for performance of the contract, the limitation starts from the date when the plaintiff has notice that the performance is refused as contemplated under Article 54. In this case, the first defendant refused to execute the Sale Deed only through his reply notice, Ex.A7 dated 01.10.1988 and the suit was filed by the plaintiffs on 01.12.1988, hence, the suit is in time."
32. For which the learned counsel for the defendant would invite the attention of this Court to the indubitable and indisputable, unarguable and unassailable facts that even though the plaintiff did not take steps to get the sale deed executed in his favour in respect of the suit property, he got patta in his favour.
In re the genuineness or otherwise of Ex.A1-the agreement to sell:
33. The fact remains that the plaintiff himself was an ex V.A.P. at the relevant time and he got the patta changed in his name obviously without any reference to Ex.A1. There is no smidgen or pint evidence to highlight that anterior to the filing of the additional counter in the partition suit as D8 therein, the plaintiff herein disclosed anything about Ex.A1 before any authority or he issued any notice to the defendant. These facts, the lower Court correctly took note of.
34. Common or garden principle of law as it is, that preponderance of probabilities would govern the adjudication in civil cases; such elements, it is quite obvious and axiomatic in the facts and circumstances of this case, are against the plaintiff and it is discernible in view of the ratiocination adhered to supra in discussing the matter by this Court.
35. Keeping the aforesaid dicta, the lower Court analysed appropriately the evidence on both sides.
36. At this juncture I recollect the following maxims:
(i) Affirmatis est probare He who affirms must prove.
(ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.
37. The sum and substance of those maxims is to the effect that it is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect.
38. Here, the plaintiff approached the Court by asserting that Ex.A1 is a genuine document, which was denied to be so by the defendant. The lower Court appropriately and appositely negatived the arguement on the plaintiff's side that the Court itself by invoking Section 73 of the Indian Evidence Act could compare the disputed signatures of the defendant with that of the admitted ones.
39. At this juncture, I would like to refer to the decision of the Hon'ble Apex Court reported in (2008) 4 SCC 530 [Thiruvengadam Pillai vs. Navaneethammal and another]; certain excerpts from it would run thus:
"16. When there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.
17. The decision in Murari Lal and Lalit Popli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal.
19. The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and the High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of Pws. 1 to 3. We therefore of the view that the decision of the High Court, reversing the decision of the first appellate Court, does not call for interference."
40. There is also one other decision rendered by me reported in 2008 (3) CTC 470 [Ganapathy Thevar v. Shanmuga Thevar]; certain excerpts from it would run thus:
"14. .......The Court cannot assume the role of an expert in comparing the disputed handwriting with that of the admitted ones. No doubt, the Court as per Section 73 of the Evidence Act, in certain circumstances could exercise its power with caution. In such an event, it is the bounden duty of the Court to specify clearly as to what are the salient features based on which the finding is arrived at.
15. It is common knowledge that the science of analysing the questioned documents contemplates certain principles and theories. Here, both the Courts below were not objective in analysing the impugned handwriting.
16. No carte blanche is given to any Court to simply compare the disputed handwriting with that of the admitted handwritings and arrive at a subjective satisfaction about the similarities and dissimilarities. There should have been reasons set out for arriving at such conclusion, but here, both the Courts below have not resorted to such a procedure. The subjective satisfaction of both the Courts below cannot be taken in favour of the defendant."
Yet one other precedent is as under:
(iii) (1979) 2 SUPREME COURT CASES 158 THE STATE (DELHI ADMINISTRATION) V. PALI RAM.
41. A mere poring over and perusal of the above precedents would highlight and spotlight the fact that the Court is not expected to assume the role of an expert and arrive at the conclusion in one way or other relating to the genuineness or otherwise of a document unless extraordinary circumstances warrant so, and furthermore, once the Court assumes the role of an expert necessarily, the various characteristics as found recognised in the science of handwriting analysis should be referred to, so to say, at least a famous treatise on handwriting analysis should be referred to and accordingly, there should be a detailed judgment. Mere subjective satisfaction would not be sufficient. No carte blanche is given to any Court to simply look at the disputed signature with some admitted signatures and give a finding that the Court is satisfied in one way or the other.
42. In this case, the lower Court correctly held that it was the duty of the plaintiff to take steps to get the disputed signatures compared with the admitted signatures of the defendant but the plaintiff, for reasons best known to himself, did not choose to do so.
43. The learned counsel for the plaintiff, by placing reliance on the evidence of P.W.2-Rangasamy Gounder and P.W.3 one other witness would try to pyramid his arguement that the lower Court could have very well placing reliance on the oral testimony of P.Ws.1 to 3, held Ex.A1 as a genuine document.
44. It is not the question of the Court simply relying on oral evidence which was shaky and titchy to give a finding in favour of the plaintiff, when the plaintiff notwithstanding the opportunity to get the disputed signatures compared with the admitted signatures of the defendant, had not chosen to avail it. The lower Court also commented upon the evidence of P.W.2 as well as P.W.3 to the effect that their evidence is not free from doubt.
45. The lower Court referred to the evidence of P.W.3 and observed that his evidence torpedos the very plea of the plaintiff that it was the defendant who approached voluntarily the plaintiff for selling her 1/7th share. In fact, the plain reading of the deposition of P.W.3 would demonstrate and display, as per him it was the plaintiff who took initiative to purchase the 1/7th share of the defendant and it is not as though the defendant, who offered to sell her property.
46. Over and above that, the deposition of P.W.2 also did not inspire confidence in the mind of the trial Court for the reason that P.W.2 simply deposed that there were some 10 or 12 persons present at the time of emergence of Ex.A1 and that there was some talk of panchayat etc. and he did not know about it. As such, in view of the shaky and patchy, tetchy and pococurante evidence adduced on the side of the plaintiff the lower Court did not want to place reliance on them; wherefore, this Court being the appellate Court, even though has got the power to peruse the depositions and arrive at a different conclusion, yet in view of the clinching reasons furnished by the lower Court in disbelieving the versions of P.W.1 to 3, does not want to interfere with such a finding.
47. The learned counsel for the plaintiff, by inviting the attention of this Court to the deposition of D.W.2 would advance his arguement to the effect that D.W.2, who is the sister's husband of D.W.1 (the defendant) would candidly admit his signature in Ex.A1 and in such a case, it cannot be stated that Ex.A1 is not a genuine agreement.
48. The learned counsel for the defendant, appropriately and appositely and that too legally, by inviting the attention of this Court to the entire deposition of D.W.2, would portray and project the facts to the effect that D.W.2 did not admit that he signed the agreement to sell. All that he deposed as D.W.2, was that his signature found in Ex.A1 was that of his own and nothing more.
49. A plain running of the eye over the deposition of D.W.2 would show that D.W.2 would admit his signature in Ex.A1, but he would hasten to add that he never knew anything about the contents of it and he never claimed that he saw the defendant signing Ex.A1.
50. At this juncture, the role of an attesting witness should be taken note of. My mind is reminiscent and redolent of the following decision of this Court:
2001 (3) T.L.N.J.173 K.A.SELVANACHI AND ANOTHER V. DR.S.R.SEKAR AND ANOTHER, certain excerpts from it would run thus:
"The learned single Judge placed reliance on the decision of a single Judge of this Court, Ismail,J., as he then was, in the case of Ramasamy Gounder v. Anantapadmanabha Iyer (1971-1-M.L.J.392), wherein the learned Judge referred to decisions rendered by learned single Judges in two old cases viz., Sathasiva Iyer,J. In Kandasamy v. Nagalinga (1912) I.L.R.36 Mad 564 and Narayana v. Rama I.L.R.(1915 38 Mad 396 and that of Kumaraswami Sastri,J. In the case of Nayakammal v. Munnaswamy Mudaliar (1924) 20 L.W.222. Sathasiva Iyer,J.in the case of Kandasamy referred to the "ordinary course of conduct of Indians in this presidency" and held that attestation must be treated prima facie as a representation by the attestor that the title and other facts relating to title recited in the document are true and that they will not be disputed. The learned judge also observed that in his long experience as judicial officer, if the attestor has an existing interest in the property dealt with in the document attestation was always made in order to bind him as to the correctness of rhe recitals. Kumaraswami Sastri,J., in the case of Nayakammal, observed that "it is the commonest thing in this country for attestations to be obtained from persons having a possible interest in the property with the object of binding them later on" and that "I have rarely come across a case where a person having and interest present or contingent has attested the deed without enquiring into its contents".
Those observations made by the learned judges cannot be treated as having laid down a proposition of law that all attestors of all documents must be imputed with knowledge of the contents thereof and even when such contents are adverse to the interest of the attestors so that the attestors are estoped from questioning the same solely by reason of the fact of their having attested the document. Observations based on personal perceptions and experience of individual Judges cannot be elevated to the status of Rules of law. Custom and usage are always a matter of evidence and strict proof.
Those observations are also clearly inconsistent with the law that had been laid down by the Privy Council in the case of Pandurang Krishnaji and cannot be regarded as having laid down such inconsistent law. Moreover, whatever may have been the practice in the year 1912 or 1924, the same cannot be regarded as the practice even eighty years later, when the awarness of the requirements oif law is far greater than what it was eighty years ago. Further, on principle it is not possible to hold that attestation of a signature is to be deemed as acceptance of the contents of the document which has been executed by the signatory whose signature is attested by the attestor. There should be something more than mere attestation to impute such knowledge of the contents so as to bind the attestors."
51. A bare reading of above excerpts, including the whole judgement would evince that a witness is a person who should be taken as the one who could speak about the factum of the executant signing before him and not about the contents. In this case, such very crucial fact itself is missing in the deposition of D.W.1 because D.W.2 never stated that he saw the alleged executant, namely, D.W.1, signing Ex.A1. In such a case, placing reliance on the deposition of D.W.2 would be a well-neigh impossibility for giving any finding in favour of the plaintiff and that too, in a suit for specific performance.
52. The learned counsel for the defendant would invite the attention of this Court to Ex.A1 and point out that on the back side of Sheet No.1 and on the back side of Sheet No.4 of Ex.A1, the stray purported signatures of Meenakshi and Srirangasamy Reddy could be seen. The said Srirangasamy Reddy is none but the husband of Meenakshi and he had not signed as a witness even as per the version of the plaintiff. The lower Court looked askance at it and raised the query as to why such signatures should find in Ex.A1. Certainly that is a crucial fact to be noted.
53. Only people who get signatures in blank papers, would at the time of converting such blank stamped and signed papers into documents would commit such mistakes in unwittingly allowing stray signatures in such documents. Therefore I am of the view that the ratiocination adhered to by the lower Court can never be found fault with in disbelieving the genuineness of Ex.A1.
54. The learned counsel for the plaintiff, by inviting the attention of this Court to the deposition of D.W.2, would contend that D.W.2's wife also was one of the persons who executed an agreement to sell in respect of her 1/7th share in favour of the plaintiff and that she in fact executed the sale deed. That would not in an way strengthen the case of the plaintiff herein, which has to be viewed independently. The deposition of D.W.2 should be taken as a whole. He would plead that he did not see D.W.1 signing Ex.A1 and he would also plead total ignorance about the agreement to sell and in such a case, in the wake of all these irregularities, the case of the plaintiff cannot be upheld and a decree for specific performance cannot be passed.
55. Ex.A2-the advocate notice, is a formal document. The deposition of P.W.2-Rangasamy Gounder, by itself in the wake of discrepancies found set out in the case of the plaintiff would have no probative force and Rengasamy Gounder himself has not stated anything about the stray purported signatures of Meenakshi and her husband Srirangasamy Reddy on the back of the first and fourth sheets of Ex.A1. In fact, the deposition of P.W.2 would be contra to what is contained in Ex.A1 as aforesaid in respect of the stray signatures. Wherefore, I could see no perversity or illegality in the judgement and decree of the lower Court.
56. Trite the proposition of law is that the trial Court is the best Court to appreciate the demeanour of the witnesses and it is the Court which is having the opportunity of dealing with the entire matter in a better objective manner. Hence, I am of the view that no interference with such a finding of the lower Court is warranted.
57. As has been correctly pointed out by the learned counsel for the defendant, the alleged prevarication in the deposition of D.W.1 is not germane, as she did not admit her signature in Ex.A1 and for that matter she also disputed her signature in Ex.A1 and a deposition has to be read as a whole, not in piecemeal. In the written statement, without mincing words, the defendant longingly took up the stand that she did not sign Ex.A1. In such a case, the burden of proof, which is ambulatory, would get shifted from the plaintiff to the defendant if at all the plaintiff by clinching evidence had proved the said facts. The plaintiff cannot pick holes in the cross-examination of D.W.1 and try to achieve success in the litigative process. Accordingly if viewed the observation made by the lower Court in ignoring such alleged prevarication in the deposition of D.W.1 warrants no interference .
58. The fact also remains that the plaintiff is the cousin brother of the defendant and in such a case I could see absolutely no reason as to why the plaintiff should simply wait for 16 = years or 17 years for getting the sale deed executed in his favour.
59. At this juncture my mind is reminiscent and redolent of the following adage "He who seeks equity must do equity and he who comes to equity must come with clean hands".
60. Over and above that, the one other relevant maxim would be, "In re dubia magis infitiatio quam affirmatio intelligenda In a doubtful matter, the negation is to be understood rather than the affirmation. "
61. When evidence is lacking it is the negative that should be presumed and not the affirmative. Accordingly, the plaintiff who was expected to approach the Court at the earliest point of time and that too, with clinching evidence, failed to do so, whereupon the plaintiff cannot demand, as of right, a decree in his favour for specific performance based on Ex.A1-the agreement to sell.
62. Ex.A2 is the copy of the advocate notice and Ex.A3 is the acknowledgement card and those are only formal documents in this case. Ex.A4 is the chitta extract, Ex.A5 is only a certified copy of the patta; Ex.A6 to A10 are the Electricity receipts to show that the plaintiff was paying electricity charges in respect of the motor pump set in the suit property. Ex.A11 is the kist receipts and Ex.A12 is a circular, Exs.A13 to A16 are the Adagal extracts and those are all formal documents in this case for the reason that absolutely there is no shard or shred, jot or miniscule evidence to show as to how the plaintiff got mutation in the Revenue records in his name when there is nothing to show that based on E.A1 he got such mutation. Over and above that based on Ex.A1 like document no mutation also is possible. As such, those documents referred to supra are having no probative force of their own so far this case is concerned.
63. Ex.A20 is the reply notice given by the defendant to the plaintiff's advocate in respect of Ex.A2, and A.21 is the reply given by the plaintiff's advocate to the defendant's advocate and Ex.A22 is the acknowledgement, which are formal in nature.
64. Exs.B1 is the sale deed and Exs.B2 & B3 are relating to the partition suit, which are formal documents in this case.
65. The repeated submission of the learned counsel for the plaintiff is that by decreeing the suit, the defendant would not in any way be prejudiced, as about 17 long years she kept quiet and in such a case, equity is not in favour of the defendant but it is only in favour of the plaintiff.
66. Flouting and ignoring the mandates as contained in Sections 16 and 20 of the Specific Relief Act, the specific performance cannot be ordered in favour of the plaintiff and if done so that would lead to travesty of justice, The discussion relating to the status of the plaintiff as lessee under the defendant's mother and thereafter also, would not in any way be helpful for adjudging the lis relating to the specific performance.
IN RE THE LIMITATION POINT
67. The suit was filed on 25.6.2004 whereas, Ex.A1 emerged on 12.6.1987. The core question arises as to whether clause (2) of Article 54 of the Limitation Act could be invoked or not?
68. In this connection, the following precedents could also be cited fruitfully.
(i) (2006) 2 SUPREME COURT CASES 428 R.K.PARVATHARAJ GUPTA V. K.C.JAYADEVA REDDY, certain excerpts from it would run thus:
"9. Article 54 of the Limitation Act reads thus:
"54. For specific performance of a contract. Three years. The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused."
10. In terms of the said article, a suit for specific performance of a contract is required to be filed within three years; in the event no date is fixed for the performance, within a period of three years from the date when the plaintiff has notice that performance is refused. The notice dated 24.4.1984, thus, is required to be construed in the context of the agreement dated 13.10.1982 entered into by an between the parties.
(ii) AIR 2006 SUPREME COURT 1556 GUNWANTBHAI MULCHAND SHAH AND OTHERS V. ANTON ELIS FAREL AND OTHERS=(2006) 3 SCC 634, certain excerpts from it would run thus:
"8. We may straightaway say that the manner in which the question of limitation has been dealt with by the courts below is highly unsatisfactory. It was rightly noticed that the suit was governed by Article 54 of the Limitation Act, 1963. Then, the enquiry should have been, first, whether any time was fixed for performance in the agreement for sale, and if it was so fixed, to hold that a suit filed beyond three years of the date was barred by limitation unless any case of extension was pleaded and established. But in a case where no time for performance was fixed, the court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof. We have explained the position in the recent decision in R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy1. In the case on hand, there is no dispute that no date for performance is fixed in the agreement and if so, the suit could be held to be barred by limitation only on a finding that the plaintiffs had notice that the defendants were refusing performance of the agreement. In a case of that nature normally, the question of limitation could be decided only after taking evidence and recording a finding as to the date on which the plaintiff had such notice. We are not unmindful of the fact that a statement appears to have been filed on behalf of the plaintiffs that they did not want to lead any evidence. The defendants, of course, took the stand that they also did not want to lead any evidence. As we see it, the trial court should have insisted on the parties leading evidence on this question or the court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial.
9. It is seen that the suit was dismissed by the trial court on the finding that the claim for the relief of specific performance was barred by limitation. The plaint contains not only a prayer for specific performance but also a prayer for perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs and from creating any documents or entering into any transaction in respect of the suit property. Of course, the latter part of that prayer is directly linked to the claim for specific performance, but the suit as regards the prayer for perpetual injunction to protect the possession of the plaintiff over the suit property on the claim that the predecessor of the plaintiffs was put in possession of the property pursuant to the agreement for sale, on a subsequent date, could not have been held to be not maintainable on any ground. Of course, the grant of the relief of injunction in a sense is discretionary and the court ultimately might or might not have granted the relief to the plaintiffs. The defendants could have also shown that the relief of injunction claimed is merely consequential to the relief of specific performance and was not an independent relief. But that is different from saying that the suit could be dismissed merely on a finding that the prayer for specific performance of the agreement was barred by limitation. In any event, therefore, the dismissal of the suit as a whole as not maintainable, could not be justified or said to be correct.
11. The reliance placed on Section 46 of the Contract Act by learned counsel for the defendants would also be an aspect that has to be considered when finally deciding whether the suit could be held to be in time and whether in a suit filed 29 years after the agreement for sale, any relief could be granted to the plaintiffs. The applicability of Section 46 of the Contract Act, and if applicable, what is the reasonable time, in this case has to be determined. The aspect of delay will have relevance while considering whether the plaintiffs would be entitled to the discretionary relief of specific performance, even if they satisfy the other requirements of the Specific Relief Act. But those aspects can be decided only after taking evidence in the case and giving the plaintiffs an opportunity to show that they had always been and they were ready and willing to perform their part of the contract and to show that they had paid the entire consideration and had been put in possession of the property, and nothing further remained for them to perform and all that remained was the execution of the sale deed in their favour and their failure to sue earlier did not disentitle them to the relief of specific performance either on the ground that the suit was barred by limitation or on the ground of delay and laches on their part or on the ground that the discretion of the court in terms of Section 20 of the Specific Relief Act was not liable to be exercised in their favour in the circumstances of the case. All these pleas available to the plaintiffs cannot enable the dismissal of the suit as barred by limitation under Article 54 of the Limitation Act, as things now stand.
15. In such a situation, especially when the whole matter requires reconsideration, we do not think it proper to go into the various arguments urged by the learned Senior Counsel appearing in this case. We think that all those arguments require to be kept alive for decision in the suit after a trial. Suffice it to say that we consider that the interests of justice would be subserved by setting aside the finding by the courts below that the suit is barred by limitation, even while upholding the finding that the trial court had the jurisdiction to try the suit and remand the suit to the trial court for a decision of all the issues arising therein, including the issue of limitation, in accordance with law after giving the parties an opportunity to adduce evidence in support of their respective cases."
(iii) 2009(5) SCC 462 AHMADSAHAB ABDUL MULLA (2) (DEAD) BY PROPOSED LRS.VS.BABIJAN AND OTHERS, certain excerpts from it would run thus:
"3. In S. Brahmanand v. K.R. Muthugopal2 a Bench of this Court did not go into this issue. It decided the appeal on the factual scenario applicable. It was however noticed that several High Courts have dealt with the matter differently. In all these cases, for example, in Kashi Prasad v. Chhabi Lal3, Alopi Parshad v. Court of Wards4, Lala Ram Sarup v. Court of Wards5, Kruttiventi Mallikharjuna Rao v. Vemuri Pardhasaradhirao6, R. Muniswami Goundar v. B.M. Shamanna Gouda7, Hutchegowda v. H.M. Basaviah8, Purshottam Sava v. Kunverji Devji9, Lakshminarayana Reddiar v. Singaravelu Naicker10, Shrikrishna Keshav Kulkarni v. Balaji Ganesh Kulkarni11 and P. Sivan Muthiah v. John Sathiavasagam12, the High Courts had decided the issue in the background of Article 113 of the Limitation Act, 1908 (hereinafter referred to as the old Act). Article 113 of the old Act is in pari materia with Article 54 of the Schedule to the Act."
(iv) 2007(15) SCC 174 JANARDHANAM PRASAD V. RAMDAS, certain excerpts from it would run thus:
"12. The court, in applying the period of limitation, would first inquire as to whether any time was fixed for performance of agreement of sale. If it is so fixed, the suit must be filed within the period of three years, failing which the same would be barred by limitation. Here, however, no time for performance was fixed. It was for the courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter.
(v) 1999(8) SCC 587 SHAKUNTALA (SMT V. NARAYAN GUNDOJI CHAVAN AND OTHERS, certain excerpts from it would run thus:
"8. We, however, find on a perusal of the plaint, the said amount of Rs 1000 as mentioned by the High Court was not paid by the plaintiff to the defendant subsequent to the notice dated 17-6-1977. In fact the averment in the plaint itself shows at para 5 that the plaintiff was ready and willing to perform his part of compromise and to pay Rs 1000 in advance at the time of making application to the Deputy Commissioner, Belgaum. The above statement in the aforesaid paragraph of the plaint is a clear indication that no such amount of Rs 1000 was paid nor received by the defendant subsequent to notice dated 17-6-1977.
9. If that be the case the limitation necessarily started from 17-6-1977, the date of refusal to perform his part of the contract and the suit was barred by time. The High Court was in error in taking a contrary view and in setting aside the judgments of the lower courts. The judgment of the High Court is set aside and the judgment of the trial court as affirmed by the first appellate court, is restored.
(vi) AIR 2004 MAD 8 SURYGANDHI V. LOURDUSWAMY;
(vii) 1997(10) SCC 66 VENKAPPA GURAPPA HOSUR V. KASAWWA C/O.RANGAPPA KULGOD;
(viii) AIR 2004 KAR.442 H.M.KRISHNA REDDY V. H.C.NARAYANA REDDY
(ix) AIR 1999 RAJ 167 RAM KARAN AND OTHERS V. GOVIND LAL AND ANOTHER
69. My discussion supra would portray that even though no period or any date has been specifically stipulated for performance of the contract as found embodied in Ex.A1, yet within a reasonable time there should have been performance of the contract. It is not as though a case where the plaintiff has been totally absolved from performing his part of the contract. The law envisages under the Stamp Act coupled with the Registration Act that the non-judicial stamp papers should be purchased only by the purchaser and not by the seller and he has to bear the brunt. The recitals extracted supra from Ex.A1 would reveal that the plaintiff undertook the task of purchasing the stamp papers and getting the sale deed scribed and registered. However he would only specify in Ex.A1 that he was not having sufficient funds. In such a case, the plaintiff cannot be allowed to contend before this Court that there remained nothing more to perform on his part, after paying the sum of Rs.20,000/- as sale consideration to the defendant.
70. What is reasonable, time differs from case to case. As has been already highlighted supra by me, there involved only totally a sum of Rs.3000/- for getting the sale deed registered and even by phantasmagorical thoughts or by any stretch of imagination it cannot be stated that a person would require almost 17 years to acquire a sum of Rs.3000/- for getting such sale deed executed and registered.
71. At this juncture it is just and necessary to extract hereunder the relevant portion of Ex.B4-the additional counter filed in A.S.No.1 of 2005 relating to the entire extent of 22 cents of land.
1. 17.6.87 Agreement of sale between 2nd petitioner and 8th respondent for Rs.20,000/-
2. 25.6.1987 Agreement of sale between 1st petitioner and 8th respondent for Rs.20,000/-
3. 17.6.1987 Agreement of sale between 2nd defendant and 8th respondent for Rs.20,000/-
4.17.6.1987 Agreement of sale between 7th defendant and 8th defendant for Rs.20,000.00
5. 1.3.1986 Agreement of sale between Jayaraman for himself and as guardian of his then minor 3rd plaintiff and 4th plaintiff and 8th respondent Jayaraman is the husband of Gandhimathi one of the daughter of Raju Reddiar for Rs.45,000/-.
6. 17.6.1987 Agreement of sale between Achammal (since dead) and 8th defendant for Rs.20,000/-. Her husband is 3rd defendant and that issues are 4th defendant to 6th defendant.
72. A plain reading of the above excerpts would reveal and show that as many as many as six agreements to sell, emerged on various dates, curiously enough on one and the same day so to say on 17.6.1987 four agreements to sell emerged and one agreement to sell emerged a year anterior to those four agreements to sell and yet one other agreement emerged subsequent to 1987 i.e. on 25.6.1987 i.e. a week after the emergence of the aforesaid four agreements to sell.
73. Taking into account the whole kit and caboodle of the facts and circumstances what one could understand is that as per the version of the plaintiff, he had sufficient financial wherewithal to pay allegedly the entire sale consideration to the proposed sellers, however, he could not raise enough money to purchase stamp papers and to get the sale deeds registered and for that he took 17 long years in that regard. Not to put too fine a point on it, the plea of the plaintiff is too big a pill to swallow and it is like a square peg in a circular hole.
74. From any angle if the matter is viewed the plaintiff is guilty of laches and the suit is clearly barred by limitation also, in addition to the personal bars operating as against the plaintiff. As such, I could see no perversity or illegality in the judgement passed by the lower Court.
75. Accordingly the points are decided as under:
Point No.(i) is decided to the effect that the plaint is not bad for want of a specific avement that the plaintiff has been ready and willing to perform his part of the contract throughout.
Point No.(ii) is decided to the effect that the suit is barred by limitation.
Point No.(iii) is decided to the effect that the suit agreement to sell was not proved to be a genuine one.
Point No.(iv) is answered to the effect that the personal bar as envisaged under Section 16 of the Specific Relief Act is operating as against the plaintiff and consequently, the discretionary relief of specific performance contemplated under Section 20 of the Specific Relief Act cannot be granted in favour of the plaintiff.
Point No.(v) is decided to the effect that the plaintiff was not ready and willing to perform his part of the contract throughout.
Point No.(vi) is decided to the effect that there is no perversity or illegality in the judgement and decree passed by the lower Court.
76. In the result, this appeal is dismissed. However, there is no order as to costs.
Msk 21.8.2012
Index:Yes
Internet:Yes
To
The Additional District Judge,
Fast Track Court No.4, Bhavani, Erode District.
G.RAJASURIA, J
msk
A.S.Nos.732 of 2009
21.8.2012