Madras High Court
Parvathy vs Ranjith .. R1/Plaintiff on 21 January, 2014
AS.Nos.288, 289 & 290/2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 10.02.2023 Delivered on 22.02.2023
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE P.B.BALAJI
AS.Nos.288, 289 AND 290/2014
1.Parvathy
2.Neelamathy .. Appellants /
Defendants 1 & 3
in all the Appeal Suits
Versus
Ranjith .. R1/Plaintiff
in AS.No.288/2014
E.K.Palanisamy .. R1/Plaintiff
in AS.No.289/2014
K.PArumugham .. R1/Plaintiff
in AS.No.290/2014
R.Sivakumar .. R2 / 2nd
Defendant in all the Appeals
1
https://www.mhc.tn.gov.in/judis
AS.Nos.288, 289 & 290/2014
Common Prayer:- Appeal Suits filed under Section 96 read with
Order 41 Rule 1 of CPC against the judgment and decree in OS.No.51/2011,
52/2011 and 55/2011 dated 21.01.2014 on the file of the learned I
Additional District Judge, Erode.
For Appellant in all
the Appeal Suits : Mr.V.Raghavachari
Senior counsel for
Mrs.V.Srimathi
For R1 in AS.No.288/2014 : Mr.P.Valliappan
Senior counsel for
M/s.PV Law Associates
For R1 in AS.No.289/2014 : Mr.S.Parthasarathy for
M/s.PV Law Associates
Senior counsel
For R1 in AS.No.290/2014 : Mr.Ar.L.Sundaresan
Senior counsel for
M/s.PV Law Associates
COMMON JUDGMENT
S.S.SUNDAR, J., (1) The Appeal Suit in AS.No.288/2014 is against the judgment and decree in OS.No.51/2011 on the file of the I Additional District Court, Erode ; AS.No.289/2014 is against the judgment and decree made in OS.No.52/2011 on the file of the same Court and 2 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 AS.No.290/2011 is against the judgment and decree made in OS.No.55/2011.
(2) The appellants in the above Appeal Suits are defendants 1 and 3 in all the suits in OS.Nos.51, 52 and 55/2011. Defendants 1 and 3 have filed the above appeals against the judgments and decrees in the respective suits granting a decree for specific performance of three independent Agreements executed by appellants along with the 2nd defendant in the suit who is also the 2nd respondent in the above Appeal Suits in favour of respective plaintiffs in the three suits who are the respective 1st respondent in each of the above Appeal Suits. (3) Though the Agreements which are the subject matter of three suits are different but executed by the same set of defendants in all the three suits and the terms of Agreements are identical, the three suits were tried together and disposed of by a common judgment and decree after recording evidence in one suit. Since the appellants are same in all the three appeals and all the appeals are connected, the three appeal suits are disposed of by this common judgment. 3 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 (4) The plaintiffs in the three suits in OS.Nos.51, 52 and 55/2011 are different. However, the plaintiff in OS.No.51/2011 is the son of plaintiff in OS.No.55/2011. It is admitted that the plaintiff in OS.No.52/2011 has also some association with the other plaintiffs. The Trial Court though rendered a specific finding that the Agreements are independent, it is seen that defendants 1 to 3, have requested for a joint trial.
(5) Brief facts that are necessary for the disposal of these Appeal Suits are as follows:-
i. The 1st appellant herein is the wife of late Sri.Ramasamy. The 2nd appellant is the daughter of 1st appellant. 2nd respondent/2nd defendant is the son of 1st appellant. The subject properties of the three suits originally belonged to the joint family consisting of the father of the 2nd appellant and 2nd respondent. It is admitted that the suit properties belonged to appellants and 2nd respondent jointly. The appellants along with 2nd respondent 4 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 offered to sell their properties measuring an extent of about 10 acres in favour of respective plaintiffs in the suits in OS.Nos.51, 52 and 55/2011. It is admitted that the plaintiffs in all the three suits agreed to purchase the respective portions at the rate of Rs.30,000/- per cent.
ii. The three Sale Agreements were executed on 31.08.2010 and the following table would show the date of Agreement, the total consideration, date of the suit as well as the extent of properties which are the subject matter of the respective sale Agreements:
OS.No. Date of Agreement Total Sale Extent of Lands Name of the Consideration Village in Rs.
51/2011 31.08.2010 84,00,000/- 2.80 acres Villarasampatti 52/2011 31.08.2010 1,00,80,000/- 3.36 acres Villarasampatti 55/2011 31.08.2010 1,23,60,000/- 4.12 acres Villarasampatti iii. All the sale Agreements contain similar recitals.
iv. As per the suit Agreement in OS.No.51/2011, an extent of 2.80 acres of land comprised in three survey fields in 5 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 Villarasampatti Village, was agreed to be sold for a sum of Rs.84 lakhs. On the date Agreement [31.08.2010], a sum of Rs.27 lakhs was paid as advance. A further sum of Rs.25 lakhs was agreed to be paid by the plaintiff in OS.No.51/2011 on or before 29.01.2011. The balance of consideration, namely, a sum of Rs.32 lakhs was agreed to be paid by the plaintiff on or before 30.06.2011.
v. Similarly, the total sale consideration for the Sale Agreement dated 31.08.2010 in OS.No.52/2011 is Rs.1,00,80,000/-. A sum of Rs.33 lakhs was paid as advance on the date of Agreement and a further sum of Rs.35 lakhs was agreed to be paid on or before 29.01.2011. The balance amount of Rs.32.80 lakhs was required to be paid on or before 30.06.2011.
vi. As per the suit Agreement in OS.No.55/2011, defendants therein received a sum of Rs.40 lakhs as advance under the Sale Agreement dated 31.08.2010. A sum of Rs.40 lakhs was agreed to be paid by the plaintiff therein on or before 6 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 29.01.2011 and the balance amount of Rs.43,60,000/- was to be paid on or before 30.06.2011.
vii.It is stated in all the three plaints that defendants offered to sell the properties for a consideration at the rate of Rs.30 lakhs per acre. It is seen that on 31.08.2010, as per the written Sale Agreements in all the three suits, the plaintiffs had collectively paid a sum of Rs.1 Crore. Under the three Agreements, it was agreed that a further sum of Rs.1 Crore should be paid by plaintiffs as indicated in the respective Agreements on or before 29.01.2011. The remaining balance was agreed to be paid by respective plaintiffs on or before 30.06.2011. The total extent of all the properties covered under the three Agreements is 10.28 acres and therefore, the total sale consideration payable under the three Agreements comes to Rs.3,08,40,000/-. viii.Identical averments are seen in all the three plaints. It is the case of plaintiffs in all the three suits that as per the terms and conditions of the Agreements, defendants have acknowledged 7 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 the respective amounts paid as advance on 31.08.2010. It is the specific case of plaintiffs that as agreed under the respective suit Agreements, the plaintiffs contacted defendants and requested them to receive the amount payable as the second instalment, but defendants avoided and neglected to receive the said amount. Therefore, the plaintiff in OS.No.51/2011 has stated that he deposited a sum of Rs.15 lakhs in his name with the Lakshmi Vilas Bank, Chithode Branch and a further sum of Rs.10 lakhs in the name of his mother Smt.K.A.Sivagami with the Elavamalai Cooperative Bank Limited, Kalingarayanpalayam Pudur.
ix. Similarly, the plaintiff in OS.No.52/2011 also stated that he paid a sum of Rs.33 lakhs as advance under the suit Agreement dated 31.08.2010. As in the first case, as per the Agreement, which is the subject matter of suit in OS.No.52/2011, a further sum of Rs.35 lakhs is payable on or before 29.01.2011. It is the specific case of plaintiff in 8 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 OS.No.52/2011 that on 27.01.2011, he contacted the defendants to receive the 2nd instalment advance of Rs.35 lakhs, but the defendants avoided and neglected to receive the amount. Stating that defendants did not come forward to receive the amount, the plaintiff in OS.No.52/2011 also stated that he deposited a sum of Rs.15 lakhs in his name and a further sum of Rs.10 lakhs respectively in the names of his two daughters by name P.Yamuna and P.Suguna with the Lakshmi Vilas Bank, Chithode Branch on 27.01.2011.
x. The plaintiff in OS.No.55/2011 also stated that the total sale consideration for an extent of 4.12 acres was agreed at Rs.1,23,60,000/-. It is stated in the plaint that the plaintiff paid a sum of Rs.40 lakhs as advance at the time when the Agreement was signed by the defendants on 31.08.2010. Here again the plaintiff stated that as per the Agreement, the plaintiff contacted the defendants and requested them to receive the second advance of Rs.40 lakhs. It is further stated that the 9 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 defendants avoided and neglected to receive the amount and therefore, the plaintiff remitted a sum of Rs.25 lakhs in his account and a further sum of Rs.15 lakhs in his wife's account in Elavamalai Cooperative Bank Limited, Kalingarayanpalayam Pudur.
xi. It is alleged in all the plaints that notice dated 27.01.2011 was issued to the defendants calling upon the defendants to receive the balance and to execute the Sale Deeds and that on receipt of the suit notices on 27.01.2011, the 2nd defendant sent a reply notice dated 04.02.2011 specifically denying the execution of Suit Agreements and requesting the Advocate who issued the notice on behalf of plaintiffs to send the Xerox copy of the respective suit Agreement. It is further alleged in the plaint that plaintiff in all the three suits sent a rejoinder notice dated 19.02.2011 along with Xerox copy of the respective suit Agreement and the counsel for the 2nd defendant received the rejoinder notice on 21.02.2011.
10 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 xii.In the plaint in OS.No.55/2011, it was alleged that the 2nd defendant contacted the plaintiff on 28.01.2011 and received a sum of Rs.1 lakh towards further advance as part of sale consideration in the presence of witnesses and he also made an endorsement on the reverse side of the second sheet of the Agreement dated 31.08.2010 executed in favour of plaintiff in OS.No.55/2011. In all the three plaints, it is stated that defendants have failed to execute the Sale Deeds as per the terms and conditions of the respective suit Agreement. Stating that defendants are trying to alienate the suit properties in favour of third parties with an intention to defeat the legitimate rights of respective plaintiffs, the three suits came to be filed. xiii.OS.Nos.51 and 52/2011 were filed on 09.04.2011. Whereas, the suit in OS.No.55/2011 was filed on 18.04.2011. In all the suits, plaintiffs prayed for a decree directing defendants to execute registered Sale Deed in respect of the suit property to the respective plaintiff or his nominees on receipt of balance of 11 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 sale consideration and for consequential reliefs. xiv.The plaintiffs also prayed for injunction restraining defendants from alienating or creating any encumbrance over the suit properties till the execution of Sale Deeds and delivery of possession of suit properties. There is also an alternative prayer for refund of the sum advanced to defendants under the suit Agreements with interest at the rate of 12% per annum. Though the three Agreements were drafted in identical terms, two Agreements which are the subject matter of OS.Nos.51 and 52/2011 refers to the fact that the patta in respect of properties agreed to be conveyed in favour of plaintiffs in OS.Nos.51 and 52/2011 is conditional and that the defendants should cooperate for removal of the condition and for change of conditional patta to Ayan patta. Though defendants were required to cooperate and do everything necessary for getting ayan patta, the obligation of respective Agreement holders to pay the balance is not subject to the getting of ayan patta. 12 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 xv.The appellants did not file any written statement and this court is unable to find any endorsement by them adopting the written statement filed by the 2nd defendant. However, the suit was contested by all the three defendants.
xvi.Identical written statements were filed in all the three suits. xvii.The 2nd defendant in the written statement, contended that the plaintiff in OS.No.55/2011 was the one who insisted the defendants to execute three Agreements in respect of the entire property measuring an extent of 10.28 acres which belonged to the defendants. It is contended that the plaintiff in OS.No.55/2011 insisted the defendants to execute three different Agreements simultaneously. It is further stated that at the time of the three Agreements, the plaintiff in OS.No.55/2011 obtained signatures of defendants jointly in some blank papers and the signature of the 2nd defendant separately in some blank papers for making applications to the revenue department to get the condition patta cancelled and to 13 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 make appropriate applications to the concerned authorities to file layout plan and to get them approved.
xviii.Though the 2nd defendant admitted the execution of the Agreements and the receipt of advance amount on the date of Agreements in unambiguous terms, it is contended by the 2nd defendant that the plaintiff in OS.No.55/2011 refused to pay additional advance amount as agreed under the three Agreements under the pretext that the plaintiff would not get the conditional patta changed as ayan patta within reasonable time. It is his specific case that the defendants insisted payment of conditional advance amounts as per the terms of three Agreements, but the plaintiff in OS.No.55/2011 adamantly refused to pay the balance as per the terms of the respective Agreements. Therefore, the 2nd defendant specifically denied the statement in the plaint that the plaintiff in each case was ready and willing to perform his part of contract and to get the Sale Deed executed by paying the 14 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 balance of sale price. The 2nd defendant denied the allegation that the plaintiff in each case contacted defendants on 27.01.2011 and offered the further amounts payable as per the suit Agreements and that the defendants avoided and neglected to receive the same. It is further stated that time is the essence of the contract having regard to the high potency of the suit properties. Stating that the value of the land has gone up many folds subsequent to the Agreements, the advance amount paid under the three Sale Agreements stood forfeited automatically as the plaintiffs in all the three suits committed breach of contracts.
xix.Though the 2nd defendant did not dispute the averment in the three plaints that the plaintiff in the respective suits had deposited the money in their accounts, it is contended that such deposit would not amount to ''payment'' as contemplated under Agreements and therefore, the plaintiffs have committed breach of the essential term of the Agreements. The 2 nd defendant 15 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 specifically denied the receipt of additional amount of Rs.1 lakh on 28.01.2011 as it was alleged in the plaint in OS.No.55/2011. He described the endorsement in the 2nd page of the suit Agreement in OS.No.55/2011 as a rank forgery. It was further contended by the 2nd defendant that the price of the suit properties had gone high and therefore, the defendants would be put to serious loss and prejudice if they are compelled to execute the Sale Deeds in the three suits.
xx.Having regard to the specific pleadings of the plaintiffs in all the three suits and the stand taken by the 2nd defendant in the written statement, the Trial Court, though framed issues independently for each suit, had considered the following points in each case:-
a) Whether the suit Agreements dated 31.08.2010 is genuine and enforceable?
b) Whether time is the essence of the contract? 16
https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014
c) Whether the plaintiffs in all the three suits were ready and willing to perform their part of contract?
d) Whether the plaintiffs are entitled to the discretionary relief of specific performance? xxi.Before the Trial Court, the plaintiff in OS.No.55/2011 was examined as PW1. One Murugesan who signed as the attestor to prove the endorsement in the suit Agreement executed in favour of plaintiff in OS.No.55/2011, was examined as PW2. The plaintiff in OS.No.52/2011 was examined as PW3. Whereas, the plaintiff in OS.No.51/2011 was examined as PW4. Plaintiffs filed Exs.A1 to A56. The 2nd defendant examined himself as DW1 and Exs.B1 to B3 were marked on the side of 2nd defendant.
xxii.Arguments were advanced before the Trial Court that the plaintiffs did not have the financial capacity to pay the balance as per the suit Agreements and that, they were not ready and willing to perform their part of contract. The Trial Court 17 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 rendered a specific finding that the plaintiffs were always ready and willing to perform their part of the contract on the basis of documents Exs.A13 to A18 and Exs.A35 and A36. Taking note of the reply notice issued by the 2nd defendant and the fact that the suit was filed even before the date due for final payment as agreed under the suit Agreements and the fact that the plaintiffs have deposited the balance of sale considerations pursuant to the exparte decree dated 19.10.2012, the Trial Court rejected the contention of the 2nd defendant that the plaintiffs were not ready and willing to perform their part of contract.
xxiii.Having regard to the specific findings on readiness and willingness, the Trial Court held that the plaintiffs in the three suits are entitled to the decree for specific performance and also the relief of injunction as prayed for in the respective suits. Aggrieved by the common judgment and decree of the Trial Court granting decree for specific performance in all the three 18 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 suits, defendants 1 and 3 in the respective suits have filed the above three Appeal Suits.
xxiv.Since the entire sale consideration had already been deposited by the respective plaintiffs to the credit of three suits, defendants were directed to withdraw the amount that had been deposited by plaintiffs and to execute Sale Deeds in favour of respective plaintiff as per the Agreements. In case defendants do not come forward to execute Sale Deeds, the Sale Deeds were directed to be executed through Court. Plaintiffs were also granted the relief to get possession and injunction from alienation till the properties are handed over to the respective plaintiffs.
(6) During the pendency of these appeals, the 2nd defendant who filed the written statement and seriously contested the suit all along by examining himself as the only witness DW1, executed Sale Deeds in respect of his 1/3rd right in favour of the respective plaintiffs in the three suits. All the three Sale Deeds were executed on 22.09.2014 19 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 and the consideration is the proportionate amount that had already been deposited by the respective plaintiffs to the credit of the three suits.
(7) Mr.V.Raghavachari, learned Senior counsel appearing for appellants / defendants 1 and 3, relying upon a few documents and the evidence of plaintiffs in all the cases, made the following submissions:-
➔ It was only the plaintiff in OS.No.55/2011 who had entered into an Agreement under Ex.B1 originally and subsequently thereafter got the three Agreements which are the subject matter of three suits marked as Exs.A1, A12 and A32. ➔ Referring to the evidence of PW1, disowning his part in the other two Agreements, the learned Senior counsel projected that the plaintiffs have come forward with a false case suppressing material facts and therefore, they are not entitled to the discretionary relief of specific performance. 20 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 ➔ In all the three suits, the plaintiffs were not ready and willing to pay the balance amount as agreed under the respective Agreements and therefore, they are not entitled to any relief in the suits.
➔ The deposit of amounts by the plaintiffs in their own accounts would not amount to payment as contemplated under the respective Agreements and the Trial Court misdirected itself by accepting such deposits alleged by plaintiffs as a valid payment showing readiness and willingness of plaintiffs.
➔ Making a difference between readiness and willingness to perform, learned Senior counsel submitted that the conduct of plaintiffs would never show their readiness and willingness in terms of the suit Agreements especially when time is the essence of the contract.
➔ Referring to the evidence, learned Senior counsel tried to persuade this Court that the reply notice issued by the 2nd 21 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 defendant on receipt of the 1st notice, though true, that does not absolve plaintiffs to perform their part of contract under the Agreements in terms of Section 16[c] especially when Section 16 of Specific Relief Act operates as personal bar where readiness and willingness is not proved. ➔ Referring to several precedents, learned Senior counsel submitted that plaintiffs have miserably failed to prove that they are continuously ready and willing to perform their part of contract and the Trial Court failed to consider the fact that the value of the properties had increased in multifold from the date of Agreements and that the delay has caused serious prejudice to defendants which would disentitle the plaintiffs in all the three suits seeking the discretionary and equitable remedy of specific performance. ➔ Referring to the evidence of plaintiff in OS.No.55/2011 as PW1, it is submitted that PW1 who is the man behind the entire transaction, has come to Court with unclean hands 22 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 and the conduct of PW1 at every stage of proceeding is relevant and if properly considered, would disentitle the plaintiff in the three suits from seeking specific performance.
(8) Per contra, learned Senior counsels Mr.S.Parthasarathy, Mr.Ar.L.Sundaresan and Mr.P.Valliappan, appearing for the three plaintiffs who are 1st respondent in the three Appeal Suits, have referred to the documents filed on behalf of plaintiffs in each suit and submitted that the plaintiffs have proved their case that they were ready and willing to perform their part of contract at all times throughout and that it was the 2nd defendant who issued a reply notice thereby committing breach. It is argued that plaintiffs were always ready with the money and to pay the same in terms of the Agreements and the second advance amount as agreed under the Agreements could not be paid because of the reply given by the 2nd defendant/DW1. Pointing out that the plaintiffs have filed the suit well before the time specified for the final payment and deposited 23 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 the amount in Court pursuant to the exparte decree dated 19.10.2012, learned Senior counsels appearing for the respective 1st respondents/plaintiffs submitted that the findings of the Trial Court holding that the plaintiffs were always ready and willing to perform their part of contract is well founded. As regards the conduct of the parties, the learned Senior counsels pointed out that the defendants have committed breach by repudiating the contract on the first occasion and that resulted in the delay in getting the balance of sale consideration by the defendants. The learned Senior counsels appearing for plaintiffs submitted that defendants have to blame themselves for repudiating the contract by a reply notice which was not explained by the defendants in the course of evidence. Referring to the fact that the plaintiffs have spent substantial amount towards getting ayan patta after removing the conditional patta, the learned Senior counsels appearing for plaintiffs in OS.Nos.51 and 52/2011 submitted that plaintiffs have not only performed their part of contract in terms of the suit Agreements, but also incurred 24 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 substantial expenses more than Rs.10 lakhs to perfect the title of plaintiffs.
(9) The further submissions of the learned Senior counsels by referring to several judgments cited before this Court, will be considered in the later part of this judgment.
(10) This Court has considered the rival submissions made on either side and also perused the materials placed.
(11) One of the submissions of the learned Senior counsel appearing for the appellants is by referring to the endorsement found in the three plaints filed in the three suits. Learned Senior counsel submitted that the respective plaintiffs were directed to deposit balance of consideration on or before the first hearing, i.e., on 08.06.2011. Since the respective plaintiffs during evidence admitted that they were required to deposit the balance amount as per the orders of Court, learned Senior counsel submitted that plaintiffs in the respective suits having failed to deposit the balance amount as directed by the Court and therefore, they are not ready and willing to 25 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 perform their part of contract.
(12) On perusal of the plaints, this court is unable to find any order passed by the Presiding Officer of Lower Court. On admission of plaints, the learned Trial Judge had just adjourned the matter to 08.06.2011. However, there is an endorsement by the Shreshtdar indicating that plaintiffs are directed to pay the balance amount on or before 08.06.2011 by order. This Court is unable to find any order as such by the Trial Court and the notes paper also does not indicate any order directing respective plaintiff in the three suits to deposit balance. As a matter of fact, in the first entry, the word 'balance' does not convey any meaning. Especially, on the second hearing, the matter was adjourned for filing written statement. The word 'balance' which is written in the notes paper is scored off by using green ink indicating that the Presiding Officer has not given any direction to deposit the balance. It is seen that as per the three Agreements, the plaintiffs in each case were required to deposit the entire balance on or before 30.06.2011. Therefore, the alleged 26 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 direction to deposit the entire balance on or before 08.06.2011 as contended by the learned Senior counsel appearing for appellants, is neither warranted nor appropriate. Had it been true, there will be a reference definitely in the written statement filed by the 2 nd defendant. Even in the Grounds of Appeal, learned counsel for the appellants has not raised any ground on the strength of such endorsement or order by the Presiding Officer of the Trial Court. Since this issue has not been raised either before the Trial Court nor before this Court in the Memorandum of Grounds, serious prejudice will be caused to the plaintiffs if it is considered in appeal without being raised before the Trial Court or in the Memo of grounds as the respective plaintiffs have lost a valuable opportunity before the Trial Court to give their valid explanation. Therefore, this Court is not inclined to accept any argument on the assumption that the plaintiffs in the suits were directed by Lower Court to deposit the balance amount on or before 08.06.2011.
27 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 (13) Considering the pleadings, evidence and arguments of the respective learned Senior counsels appearing on either side, this Court finds that the following points arise for consideration and determination in the above Appeals:-
A) Whether time is the essence of the contract? B) Whether the plaintiffs in each suit have averred and proved their readiness and willingness to perform their part of the respective contracts which are subject matter of the three suits?
C) Whether plaintiffs in the three suits are entitled to the equitable relief of specific performance? D) Whether the conduct of plaintiffs in the three suits disentitle them to get the relief of specific performance? and E) Whether further direction is required in this case having regard to the peculiar facts and circumstances of the case?
28
https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 POINT [A]:-
(14) Defendants have admitted execution of all the three suit sale Agreements and the receipt of advance amount in each of the suit sale Agreements on the date of Agreements in the written statement.
As per the Agreements of Sale, the 2nd advance amount was required to be paid on or before 29.01.2011. The balance of sale consideration is required to be paid by the respective plaintiffs in each of the Agreement to the defendants within ten months from the date of suit Agreements, i.e., 30.06.2011. There is a specific clause in each of the Agreements, which reads as follows:-
OS.No.51/2011:-
''...mg;go tha;jh fhyj;jpw;Fs; ek;kpy; 1
yf;fkpl;lth; fpuak; bra;J bfhs;sj; jtwpdhy; 1
yf;fkpl;lth; jhd; brYj;jpa[s;s ml;thd;!; bjhifia
,Hg;gJld; ,e;j vf;hpbkz;L gj;jpuk; vf;fhuzj;ijf;
bfhz;Lk; bry;yj;jf;fjy;y/''
OS.No.52/2011:-
''.....mg;go tha;jh fhyj;jpw;Fs; ek;kpy; 1
yf;fkpl;lth; fpuak; bra;J bfhs;sj; jtwpdhy; 1
yf;fkpl;lth; jhd; brYj;jpa[s;s ml;thd;!; bjhifia
29
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AS.Nos.288, 289 & 290/2014
,Hg;gJld; ,e;j vf;hpbkz;L gj;jpuk; vf;fhuzj;ijf;
bfhz;Lk; bry;yj;jf;fjy;y/''
OS.No.55/2011:-
''.....mg;go tha;jh fhyj;jpw;Fs; ek;kpy; 1
yf;fkpl;lth; fpuak; bra;J bfhs;sj; jtwpdhy; 1
yf;fkpl;lth; jhd; brYj;jpa[s;s ml;thd;!; bjhifia
,Hg;gJld; ,e;j vf;hpbkz;L gj;jpuk; vf;fhuzj;ijf;
bfhz;Lk; bry;yj;jf;fjy;y/''
(15) Though it is stated in the three plaints that time is not the essence of
the Agreements, the plaintiffs have not let in evidence or proceeded further to justify their non deposit on the plea that time is not the essence of the contract. Therefore, from the terms of the Agreements and the forfeiture clause, this Court has no hesitation to hold that time is the essence of the contract. Hence, Point [A] is answered accordingly. However, this issue assumes no significance as the plaintiffs in all the three suits specifically pleaded that they were ready to perform their part of contract in adherence to the time stipulated in the respective Agreements. 30 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 POINT [B]:-
(16) Before considering the arguments advanced on either side, some of the admitted facts and the dates and events are required to be recorded in this judgment.
(17) Under Ex.B1 dated 29.06.2010, the plaintiff in OS.No.55/2011 entered into an Agreement of Sale in respect of an extent of 10 acres of land for a consideration of Rs.30 lakhs per acre and paid a sum of Rs.1 lakh as advance. The said Agreement however contemplates a regular written Agreement and therefore, the three suit Agreements appear to be one in continuation of the Agreement under Ex.B1.
The suit Agreements under Exs.A1, A12 and A34 were executed on 31.08.2010 and the suits are now based on the three independent Agreements. As per the respective suit Agreements, defendants have acknowledged the receipt of advance amounts which is around 1/3rd of the total sale consideration. As per the three Agreements, the 2nd instalment is payable on or before 29.01.2011. The remaining balance was agreed to be paid on or before 30.06.2011. It 31 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 is the case of plaintiffs that they approached the defendants for payment of the 2nd installment and the defendants avoided receipt of the further advance. Under Exs.A5, A19 and A37, three notices were issued on behalf of respective plaintiffs calling upon the defendants to receive the 2nd installment as per the terms of the respective Agreements from the plaintiffs and to make an endorsement acknowledging the receipt of 2nd installment on the backside of the Sale Agreements dated 31.08.2010. The plaintiffs in all the three suits issued legal notice on 27.01.2011 specifically referring to the amount deposited by them on 27.01.2011 as evident from Exs.A13 to A18 and under Exs.A35 and A36.
(18) The respective pre-suit notice issued by plaintiffs in all the three suits and the postal acknowledgments would show that the 2nd defendant acknowledged the receipt of the suit notices dated 27.01.2011 in all the three suits issued on behalf of the plaintiffs. The appellants who are defendants 1 and 3 refused to receive the respective notices independently issued. However, the 2nd defendant 32 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 who received the notice dated 27.01.2011 in all the three suits under Exs.A5, A19 and A37, sent a reply under Ex.A9, Ex.A23 and A41 dated 04.02.2011. The reply notice in all the three suits are identical and it is useful to refer to the contents of the reply notice under Ex.A9 dated 04.02.2011 which reads as follows:-
''1.My client states that he did not entered into any written agreement of sale dated 31.08.2010, in respect of the notice mentioned properties. Hence, my client hereby request you to send a xerox copy of the agreement dated 31.08.2010 alleged to have been executed by my client and others to my client's address for his perusal.
2.My client states after perusing the alleged agreement of sale dated 31.08.2010, reply notice will be issued.'' (19) It was thereafter a rejoinder notice was issued on behalf of respective plaintiffs separately requesting the counsel for defendants to advise his clients to execute the Sale Deeds as per the Agreements dated 31.08.2010 and reiterating that plaintiffs in the respective suits are always ready and willing to purchase the properties by paying 33 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 the balance in terms of the Agreements. Therefore, even before the expiry of the time fixed for the 2nd payment, i.e., on 29.01.2011, the plaintiff in each case issued a notice calling upon defendants to execute Sale Deed. However, the 2nd defendant denied the Agreements dated 31.08.2010 in all the reply notices sent by him on 04.02.2011. In all the reply notices, the 2nd defendant further stated that proper reply notice would be issued after seeing the Agreements of sale dated 31.08.2010. In all the three cases, there was no further notice or communication from the 2nd defendant or on behalf of any of the defendants. The plaintiffs in all the cases issued rejoinder notices between 19.02.2011 and 22.02.2011 marked as Exs.A10, A25 and A42. Defendants have also filed the acknowledgment for the receipt of rejoinder sent by plaintiffs counsel. Suits in OS.Nos.51 and 52 of 2011 were filed on 09.04.2011 and the third suit in OS.No.55/2011 was filed on 18.04.2011.
(20) Time fixed for performance to pay the entire balance as per the Sale Agreement falls on 30.06.2011. As per proceedings of the District 34 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 Collector, Erode, dated 02.02.2011 marked as Exs.A26 to A28, the conditions in the patta were directed to be removed and a direction was issued for issuance of ayan patta upon receipt of the value of land as assessed by the revenue from defendants 1 to 3. (21) It is admitted that the amount which was required to be paid by the defendants were remitted by the respective plaintiffs in the three suits as per the payment receipts for a sum of Rs.10,87,185/- and marked as Exs.A29 to A31. The Tahsildar, Erode, acknowledged receipt of the payment of a sum of Rs.10,87,185/- on 01.01.2013 and the Tahsildar confirmed the change in revenue accounts as per the proceedings of the District Collector dated 02.02.2012 in favour of the three defendants by three different orders. (22) All the three suits were decreed exparte by order of Court dated 19.10.2012, granting three months time to the plaintiffs to deposit the balance into Court. It is admitted that the entire balance amount which is payable by the respective plaintiffs in each suit was deposited within the time granted by the Trial Court in the exparte 35 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 decree. In the plaints, the plaintiffs have specifically averred that plaintiffs in each case was ready and willing to perform his part of the contract in terms of the Agreement dated 31.08.2010. Therefore, the plaintiffs have proved and established by documents and conduct that they were ready with the money and were willing to pay the money in terms of the Agreement dated 31.08.2010. (23) Learned Senior counsel appearing for the appellants submitted that the plaintiff in OS.No.55/2011 is the real purchaser and the suit sale Agreements which emerged out of a single transaction was later drafted in the names of the son and associate of plaintiff in OS.No.55/2011. Referring to the document-Ex.B1, learned Senior counsel appearing for appellants put forth the argument that the whole case of plaintiffs splitting a single Agreement into three different independent Agreements and projecting three independent Agreements is far from truth and therefore, the conduct of plaintiffs should be taken as one in defiance of the Agreement-Ex.B1. From the evidence, the plaintiff in OS.No.55/2011 initially, deposed to the 36 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 effect that he was not aware of the other two Agreements. However, in the later part of cross-examination, he admitted that all the three Agreements are inter-connected. However, this Court is unable to gain any impression from the evidence that the plaintiffs in each case, by their conduct tried to wriggle out of their obligations detriment to the interest of defendants. The splitting of contract appears to be for convenience as agreed between parties. Hence, this Court is unable to find any irregularity affecting mutual rights and obligations of the parties under the independent Agreements. (24) The learned Senior counsel then referred to the document – Ex.A1 and contended that the plaintiffs have come forward with the false case regarding the payment of a sum of Rs.1 lakh on 28.11.2011. It is to be seen that the plaintiff in OS.No.55/2011 has specifically referred to the fact that the 2nd defendant contacted plaintiffs on 28.11.2011 and received a sum of Rs.1 lakh as further advance and acknowledged the receipt by an endorsement made in the Agreement dated 31.08.2010. Therefore, the plaintiff in OS.No.55/2011 has 37 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 specifically made a reference to this endorsement in his plaint and has further stated that the 2nd defendant after acknowledging the receipt of a sum of Rs.1 lakh on 28.11.2011, issued the reply denying the Agreement and the endorsement. The endorsement in Ex.A1 is marked as Ex.A2. The signature of the 2nd defendant in the endorsement is also admitted by PW1 during cross-examination even though he has denied the endorsement in different place during cross examination. The endorsement of the 2nd defendant is witnessed by PW2. PW2 who has attested the endorsement has specifically spoken to the fact regarding payment of a sum of Rs.1 lakh to the 2nd defendant on 28.11.2011. The Trial Court has also accepted the version of the plaintiff in OS.No.55/2011 and therefore, this Court is unable to accept the argument of the learned Senior counsel for appellants that the plaintiffs have come forward with the false case regarding payment of a sum of Rs.1 lakh on 28.11.2011. (25) The learned Senior counsel after referring to the case of plaintiffs in all the three cases about the deposits they have made in their names 38 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 or in the names of their spouse or children, submitted that deposit of amount required to be paid by the plaintiffs under the Agreements cannot be considered as a valid payment. It was pointed out that PW1 who has admitted payment of Rs.1 lakh on 28.11.2011 stated during his cross-examination that he did not ask the 2nd defendant / 2nd respondent to receive the second instalment when he visited the plaintiffs on 28.11.2011. Therefore, the learned Senior counsel submitted that the plaintiff in OS.No.55/2011 / DW1 has exhibited his unwillingness to pay the amount on 28.11.2011. This Court is unable to accept this argument having regard to the overall circumstances.
(26) Learned Senior counsel appearing for the appellants then submitted that the Agreements contain clauses indicating reciprocal promises like measurement of properties, conversion of conditional patta into ayan patta. None of the obligations are relevant as the plaintiffs have never expected the defendants either to measure the property or to get conversion of conditional patta before paying the balance 39 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 amount as agreed under the independent Agreements. Therefore, the submissions of the learned Senior counsel for the appellants disputing the readiness and willingness of plaintiffs to perform their part of the contract, cannot be countenanced. (27) Learned Senior counsel appearing for appellants then submitted that the plaintiff in OS.No.55/2011 is a Real Estate Businessman and therefore, he had some difficulties to pay the balance without getting the title being made perfect by getting the condition patta changed into ayan patta. This Court is unable to appreciate any logic in the arguments advanced by the learned Senior counsel for appellants having regard to the admitted fact that plaintiffs never cited the requirement of conversion into ayan patta as a reason for delay in making further payment as agreed under the suit Agreements. Merely because there are some discrepancies in the evidence of PW1, PW3 and PW4 in the cross examination on certain aspects, there is nothing on record raising any doubt or bona fides on the readiness of plaintiffs to perform their part of contract in terms of 40 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 the suit Agreements. The whole argument of the learned Senior counsel appearing for appellants questioning the readiness or willingness of plaintiffs in the respective suits was based on the fact that the plaintiffs have not paid the 2nd installment as agreed under the respective suit Agreements dated 31.08.2010. (28) When the suit notice was issued to the defendants, the appellants namely defendants 1 and 3 refused to receive the notice. The 2nd defendant denied the respective agreement and thereby expressed his unwillingness to perform his part of contract in terms of the suit Agreements indirectly. It is, in this context, useful to refer to Section 51 of the Indian Contract Act:-
''Section 51:- Promisor not bound to perform, unless reciprocal promisee ready and willing to perform.—When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.'' 41 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 (29) From the reading of Section 51, the purchaser cannot be expected to perform his promise by paying the amount as agreed when the vendor is not ready and willing to perform his part of the contract.
The denial of Agreement by the 2nd defendant and the conduct of appellants/defendants 1 and 3 refusing to receive the suit notices would only indicate that the defendants have to blame themselves before finding fault with the plaintiffs for depositing the money in their accounts or in the accounts of their spouse or children as proved by documentary evidence.
(30) The learned Senior counsel appearing for appellants relied upon several portions of evidence of PW1 and PW3 to infer that their evidence would show that the balance amounts were not deposited as directed by Court. This Court has already seen that there was no direction by the Court to deposit the balance amount before the first hearing as argued by the learned Senior counsel and that the entire balance was deposited promptly by plaintiffs in all the suits pursuant 42 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 to the exparte decree passed in the suits within the time specified by the Court.
(31) Learned Senior counsel appearing for appellants relied upon the judgment of Hon'ble Supreme Court in the case of Ravi Setia Vs. Madan Lal and Others reported in 2019 [9] SCC 381. The Hon'ble Supreme Court considered the case where the plaintiff therein did not deposit the balance of sale consideration on the dates specified by the Court. However, time was extended in favour of plaintiff to deposit the balance. It was held by the Hon'ble Supreme Court that mere extension of time to deposit does not absolve plaintiff on his obligation to demonstrate readiness and willingness and therefore, the non deposit within the time was also taken as a relevant circumstance and conduct of plaintiff to consider the issue of readiness and willingness. The Hon'ble Supreme Court further observed that lack of readiness and willingness on the part of plaintiff and his incapacity to perform his obligation was evident in that case as the reasons stated for failure to deposit was not 43 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 acceptable.
(32) Learned Senior counsel for the appellants then relied upon the judgment of the Hon'ble Supreme Court in the case of C.S.Venkatesh V. A.S.C.Murthy reported in 2020 [3] SCC 280, for the proposition that plaintiff must prove that he is ready and willing to perform his part of the contract right from the date of execution of contract till the decree and that the conduct of plaintiffs can be inferred from the facts and circumstances of the case. Though it is accepted that the plaintiff need not produce ready money, it is held that the plaintiff should prove that he had means to generate money for paying agreed consideration.
(33) The learned Senior counsel then relied upon the judgment of the Supreme Court in the case of Saradamani Kandappan V. S.Rajalakshmi and Others reported in 2011 [1] SCC 18. In the said case, the Hon'ble Supreme Court, following its earlier judgment in the case of K.S.Vidyanadam Vs. Vairavan reported in 1997 [3] SCC 1, has reiterated the general principles in the following lines:- 44
https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 ''43. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam [(1997) 3 SCC 1] :
(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.
(ii) The courts will apply greater scrutiny and strictness when considering whether the purchaser was “ready and willing” to perform his part of the contract.
(iii)Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. The courts will also “frown” upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance.
The three-year period is intended to assist the purchasers in special cases, as for example, where the 45 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 major part of the consideration has been paid to the vendor and possession has been delivered in part- performance, where equity shifts in favour of the purchaser.'' (34) After elaborately discussing the findings of the Courts below on merits, Hon'ble Supreme Court has held in that case that High Court was justified in refusing specific performance in the suit. This Court in several cases, followed the judgment of Hon'ble Supreme Court in Saradamani Kandappan's case without any demur and therefore, never had any quarrel with the propositions reiterated by Hon'ble Supreme Court following the judgment of Hon'ble Supreme Court in K.S.Vidyanadam's case. However, even while considering the readiness and willingness of the plaintiffs in the present case with greater scrutiny and strictness, this Court is unable to find any reason to hold that plaintiffs were not ready and willing to perform their part of the contracts.
(35) Learned Senior counsel appearing for the appellants also relied upon the judgment of one of us [S.S.SUNDAR, J.], in the case of 46 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 Ramamani Vs. Pitchaimani, reported in 2017 [3] MLJ 472, wherein on the facts of the case, it is observed as follows:-
''15.In the present case, granting relief to the plaintiff will be inequibtable as the first defendant is put to great hardship by compellling to execute the sale deed by receiving only 60% of the sale consideration that too after a long period of time. In such circumstances, the discretion cannot be exercised in favour of plaintiff. In the present case, the plaintiff by his conduct in approaching the Court with the present prayers has made the position of the 1st defendant worse. The conduct of plaintiff in the present case, therefore, cannot be ignored and such a person is not entitled to any indulgence from this Court to get the discretionary relief. It has been repeatedly held by this Court and the Hon'ble Supreme Court that the suit for specific performance can be granted only in favour of a person who is a bona fide agreement holder and approaches the Court with clean hand, without any inconsistencies in the pleading or any unnatural delay. In the present case, the offer of plaintiff in the altered circumstances, being inequitable, the grant of relief to 47 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 the plaintiff will cause serious prejudice to the 1st defendant depriving her of a substantial portion of the consideration. The plaintiff's attempt to take advantage of this position to the prejudice of the 1st defendant cannot be judged as a conduct of a bona fide agreement holder coming to Court with clean hands so as to grant him the equitable relief.'' (36) Learned Senior counsel relied upon judgment of the Division Bench of this Court in the case of Arunachala Mudaliar V. Jayalakshmi Ammal and Another reported in 2003 [1] CTC 355, for the proposition that the plaintiff who failed to deposit sale consideration as per Agreement before filing of suit, is not entitled to the relief of specific performance. The Division Bench considered the case where the Agreement specifically refers to the deposit of balance of sale consideration into Court before filing of suit for specific performance. In paragraph No.25, the Division Bench has held as follows:-
''25. The obvious lacunae in the plaintiff's case have been pointed out above. The plaintiff has not deposited the amount that she should have deposited as 48 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 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.'' (37) Learned Senior counsel appearing for appellants also relied upon a judgment of a learned Single Judge of this Court in the case of S.Kaliyanna Gounder and Others V. S.Periyasamy and Others in AS.No.463/1995 dated 03.10.2017. The learned Judge has considered the scope of Section 16 of Specific Relief Act and accepted the case of defendants in the suit that there is a personal 49 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 bar under Section 16[c] of the Act to seek the relief of specific performance without pleading and proving readiness and willingness. A few other judgments relied upon by the learned Senior counsel appearing for appellants though relevant in different situations on the issue whether the plaintiff has proved readiness and willingness, all the cases referred to and relied upon by the learned Senior counsel have no application to the peculiar facts and circumstances in the present case as indicated above.
(38) Section 16[c] of the Specific Relief Act reads as follows:-
16. Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person—
(a)......
(b)........
(c)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 of the performance of which has been prevented 50 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 or waived by the defendant.
Explanation.—For the purposes of clause (c),—
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff 4 [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction.'' (39) Therefore, explanation [2] to clause [c] of Section 16 reveals that it is not essential that plaintiff to actually tender to the defendant or to deposit in Court any money except when the Court directs the plaintiff to do so. The general law that the plaintiff should prove continuous readiness and willingness at all stages from the date of Agreement till the date of hearing of suit, is reiterated in several judgments and the Hon'ble Supreme Court and this Court had occasion to make a distinction between readiness to perform the 51 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 contract and willingness to perform the contract and held in several cases that mere readiness by showing the capacity to mobilise funds is not sufficient and that the plaintiff should also prove willingness to perform his part of the contract by making actual payment unless special circumstances is pleaded and established. (40) The Hon'ble Supreme Court in the case of Syed Dastagir V. T.R.Gopalakrishna Setty reported in AIR 1999 SC 3029 has considered the issue and formulated a few aspects after referring to section 16[c] of the Specific Relief Act:-
''9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and 52 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded maybe in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he 53 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 has performed or has always been and is willing to perform his part of the contract. So the compliance of “readiness and willingness” has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded.
10....The section makes it obligatory to a plaintiff seeking enforcement of specific performance that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of the obligation.
Unless this is there, Section 16(c) creates a bar to the grant of this discretionary relief. As we have said, for this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the plaintiff to perform his part of the obligation then it cannot be said there is non- compliance of the said section.'' (41) In Aniglase Yohannan V. Ramlatha reported in 2005 [7] SCC 54 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 534, the Hon'ble Supreme Court has observed as follows:-
''11. Lord Campbell in Cort v. Ambergate, Nottingham and Boston and Eastern Junction Rly. Co. [(1851) 117 ER 1229 : 17 QB 127] observed that in common sense the meaning of such an averment of readiness and willingness must be that the non- completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it, had it not been renounced by the defendant.'' (42) Mr.P.Valliappan, learned Senior counsel appearing for the 1st respondent in AS.No.288/2014 relied upon the judgment of the Hon'ble Supreme Court in the case of Most.Etwari Devi and Others V. Most.Parvati Devi reported in AIR 2006 SC 970, wherein a specific plea that the plaintiff therein failed to prove his capacity to perform contract was raised on the ground that the plaintiff did not deposit sale consideration within time granted by the Trial Court. The plea raised by defendant therein was considered by Hon'ble Supreme Court and the defendant therein was found unsuccessful not only on facts but also by raising appropriate 55 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 plea. The relevant portion of the Hon'ble Supreme Court judgment is extracted hereunder:
''4......But the finding that the plaintiff has not proved his capacity to perform his part of the contract as he was not even ready to deposit the money in terms of the trial court's order is factually wrong. It appears that no such plea was raised by the defendant before the first appellate court. In the memorandum of appeal filed before the High Court in the second appeal also, there was no such plea taken. On perusal of the records, it appears that the deposit was made on 19- 12-1978, that was well within one month's time granted by the trial court by its judgment and decree dated 25- 11-1978. Confusion appears to have arisen because notwithstanding the deposit, an application for extension of time was filed. The High Court should have ignored the application and should not have put any emphasis thereon as verification of the records would have revealed that the payment had been made. Even otherwise there was no such plea taken by the defendant (the respondent herein) about the non- deposit within time granted by the trial court. The High 56 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 Court should not have acted on an oral submission made by the learned counsel for the defendant, who was the appellant before it, without granting of an opportunity to the present appellants to have their say in the matter.'' (43) Hon'ble Supreme Court and this Court have repeatedly held in several cases that it is not essential for the plaintiff to actually tender to defendant or to deposit in Court any money except when so directed by Court. Explanation [i] to Section 16[c] of Specific Relief Act does not require any deposit to prove readiness and willingness. From several judgments cited by the learned Senior counsel appearing on either side, this Court has no quarrel with the broad proposition that the plaintiff should aver and prove that he is always ready and willing to perform his part of the contract.
However, the issue should be considered based on the relevant materials and overall circumstances and the pleadings and conduct of parties as a whole. The conduct of plaintiffs prior and subsequent to the filing of suits are also relevant. However, this Court is unable to get any support from any of the judgments cited or relied upon by 57 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 the learned Senior counsel appearing for the appellants to accept his contention that plaintiffs were not ready and willing to perform their part of the contract. Hence, Point [B] is answered in favour of plaintiffs.
POINTS [C] & [D]:-
(44) This Court has already held that the defendants cannot blame the plaintiffs for failure to pay the 2nd instalment as per the Agreements.
If there is suppression of material fact or a false case projected to prove plaintiffs' readiness and willingness, the Court of equity would certainly consider while exercising the discretionary power of Court. Every plaintiff is expected to come to Court with clean hands. When the plaintiff is shown to have materially misled the Court or to have abused its process or to have admitted to do so, the discretionary relief of specific performance can be denied to plaintiff. What is a material fact, suppression of which would disentitle the plaintiff to obtain a discretionary relief always held to be depend upon facts and circumstances of each case. A material 58 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 fact should necessarily refer to a fact which is material for the purpose of deciding the contentious issues, determination of which the plaintiff will get the relief.
(45) Though it is held in several cases that a plaintiff who makes false allegations, is not entitled to the equitable relief of specific performance, this Court in the present case is unable to find any mischief or false accusations or false case pleaded by plaintiffs in support of their case while seeking specific performance of the suit Agreements. In the present case, the plaintiffs have specifically pleaded the facts which are required to be proved by them to get the relief and this Court finds no infirmity in the case pleaded and projected in evidence by plaintiffs in all the three suits. Therefore, the submission of the learned Senior counsel appearing for appellants that plaintiffs in all the three suits are not entitled for specific performance on account of their conduct, has no legal basis. It is the 2nd defendant who played mischief by issuing a reply notice on 04.02.2011 specifically denying the suit Agreements in all the 59 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 three suits. As observed by this Court, by referring to Section 51 of the Indian Contract Act and by virtue of the specific stand taken by the 2nd defendant in the reply notice, the defendants have to blame themselves for not getting the money as agreed. By refusing to receive the suit notice and by expressing their unwillingness to execute the Sale Deeds upon receipt of the suit notice, the appellants have committed breach of contract. Though appellants have not sent any reply, the following admission in the evidence of DW1 is relevant:-
''.....tHf;fwp"h; mwptpg;ig bgw;W
bfhz;l gpd;dh; ehDk;. Vd; mk;kht[k; vd;
j';ifa[k; fye;J Mnyhrpj;J ehd; kl;Lk;
gjpy; mwptpg;g[ bfhLj;njd;//////''
(46) Since this Court has already held that the plaintiffs averred and
proved their readiness and willingness to perform their part of the contract in terms of the respective Agreements, this Court finds no reason to refuse to grant relief of specific performance to plaintiffs. Though it is true that the defendants have not received the amount 60 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 from plaintiffs as agreed under the respective suit Agreements, the plaintiffs cannot be blamed having regard to the admitted facts and peculiar circumstances indicated above. When the inconvenience caused to defendants was on account of their conduct, this Court cannot refuse or deny relief to the plaintiffs who were always ready and willing to perform their part of the contract at the relevant point of time and spent substantial amounts to make good the title. It is to be noted that defendants cannot deal with the properties unless the conditions in patta are removed and Ayan patta was given to defendants at the cost of plaintiffs. Therefore, in equity this Court finds more in favour of plaintiffs than to blame them for any conduct in the given facts and circumstances of the case. Points [C] and [D] are also answered in favour of plaintiffs.
POINT [E]:-
61
https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 (47) This Court has already held that defendants have committed breach of Agreements and therefore, they were put to some inconvenience.
However, the fact that money was available with the plaintiffs till they deposited the amount in Court pursuant to the exparte decree granted by the Lower Court is admitted. In the course of evidence, it is seen that plaintiffs were doing Real Estate Business. On the admitted facts, by the conduct of defendants, plaintiffs were supposed to keep a sum of Rs.1 Crore payable on 29.01.2011 in their Bank account till it was paid by the end of December 2012. Similarly, a further sum of Rs.1 Crore which was payable by 30.06.2011 was not paid by plaintiffs. Though defendants have to blame themselves, this Court is of the view that plaintiffs have gained an advantage by not paying the money in time as agreed under the Agreements for some time. Though there is a delay in execution of Sale Deeds, the delay is always to the advantage of plaintiff in a suit for specific performance. A rough estimation 62 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 would indicate that the plaintiff in three suits stood gained by their non-payment for a considerable period of two years by keeping a sum of Rs.1 crore from 29.01.2011 for a period of 23 months and for a period of 18 months from 30.06.2011 as regards a sum of Rs.1 Crore. Even by calculating interest @ 6% per annum, plaintiffs would have gained a sum of Rs.20 lakhs [approx] by keeping the money with them of course for no fault of theirs. The fact that the plaintiffs in three suits have paid Rs.10 lakhs for getting ayan patta is also taken note of.
(48) Considering the total sale consideration and the amount payable by plaintiffs in each case, the plaintiff in OS.No.51/2011 who is the 1st respondent in AS.No.288/2014 is directed to pay a sum of Rs.2,73,000/- [Rupees Two Lakhs Seventy Three Thousand only] ; the plaintiff in OS.No.52/2011 who is the 1st respondent in AS.No.289/2014 is directed to pay a sum of Rs.3,27,000/- [Rupees Three Lakhs Twenty Seven Thousand only] and the plaintiff in OS.No.55/2011 who is the 1st respondent in AS.No.290/2014 is 63 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 directed to pay a sum of Rs.4,00,000/- [Rupees Four Lakhs only] to the appellants/defendants 1 and 3 in the above suits. (49) It is made clear that the above payments as directed by this Court in this common judgment, shall be paid within a period of three months from the date of receipt of a copy of this judgment. The payment as directed above, shall be treated as a simple money decree in favour of plaintiffs for all purposes.
(50) The respective plaintiffs / 1st respondents in the above Appeal Suits are directed to pay the amounts as indicated above without forcing the appellants to resort to execution proceedings. For this purpose, this Court requires compliance of this direction. (51) In the result, the Appeal Suits are partly allowed with costs and the judgments and decrees made in OS.No.51/2011, 52/2011 and 55/2011 dated 21.01.2014 on the file of the learned I Additional District Judge, Erode, are hereby confirmed. However, respective 1st respondent/plaintiff in the three suits are directed to make the exgratia payments as indicated above to the appellants.
64 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 [SSSRJ] [PBBJ] 22.02.2023 AP Internet : Yes Index : Yes/ No To 1.The I Additional District Judge Erode. 2.The Section Officer VR Section, High Court Madras. 65 https://www.mhc.tn.gov.in/judis AS.Nos.288, 289 & 290/2014 S.S.SUNDAR, J., and P.B.BALAJI, J., AP Common Judgment in AS.Nos.288, 289 & 290/2014 22.02.2023 66 https://www.mhc.tn.gov.in/judis