Madras High Court
K.R.Sundararaj vs M.Nataraj .. 1St
Author: S.S.Sundar
Bench: S.S.Sundar
AS.No.1116/2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 06.06.2023 Delivered on 13.07.2023
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE C.KUMARAPPAN
AS.No.1116/2015
1.K.R.Sundararaj
2.S.Sivaramkumar .. Appellants /
Defendants 2 & 3
Versus
1.M.Nataraj .. 1st Respondent /
Plaintiff
2.Velathal @ Velammal .. 2nd Respondent /
1st Defendant
Prayer:- Appeal Suit filed under Section 96 of CPC against the
judgment and decree dated 30.04.2015 passed in OS.No.648/2011 by the
learned I Additional District Judge, Coimbatore.
1
https://www.mhc.tn.gov.in/judis
AS.No.1116/2015
For Appellants : Mr.Ar.L.Sundaresn
Senior counsel for
Mr.P.Mathivanan
For R1 : Mr.Naveen Kumar Murthi
for Mr.S.Sidhartha Vishnu
R2 : Died
JUDGMENT
S.S.SUNDAR, J., (1)Defendants 2 and 3 in the suit in OS.No.648/2011 on the file of I Additional District Court, Coimbatore, are the appellants in the above appeal.
(2)Brief facts that are necessary for the disposal of this appeal are as follows:
(a)The 1st respondent herein, as plaintiff, filed the suit in OS.No.648/2011 against the 2nd respondent and the appellants for specific performance of an Agreement dated 29.07.2011 by directing the defendants to execute the Sale Deed free from encumbrance upon receipt of the balance sale consideration and for permanent injunction restraining 2 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 the defendants from in any manner alienating or encumbering the suit properties and for consequential reliefs.
(b)It is the case of the 1st respondent/plaintiff that the 1st defendant in the suit executed a registered Power of Attorney Deed in favour of 2 nd defendant in respect of the suit property on 16.06.2011 giving the absolute right to the 2nd defendant to deal with the property and the 2nd defendant entered into an Agreement of Sale with the plaintiff on 29.07.2011 to sell the suit property for a total consideration of Rs.27,71,400/-. It is his further case that on the date of Agreement, the plaintiff paid an advance of Rs.10 lakhs and the plaintiff agreed to complete the sale within a period of one month from the date of Agreement by paying the balance sale consideration of Rs.17,71,400/-.
It is the case of plaintiff that he was always ready and willing to purchase the property by paying the balance sale consideration as per the Agreement and that on several occasions, he had informed the 2nd defendant to come forward to execute the Sale Deed by receiving the balance sale consideration. It is stated that the 2nd defendant, with 3 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 ulterior motive, postponed the same. It is also stated by the plaintiff that defendants 1 and 2 had not given the Death Certificate of one Kallakkal and the original documents in respect of the suit property. It is contended in the plaint that the plaintiff issued a Legal notice on 25.08.2011 calling upon defendants 1 and 2 to execute the Sale Deed, but the 2nd defendant issued a notice on the same day as if the plaintiff did not come forward to get the Sale Deed registered and called upon the plaintiff to come to the Registrar office within seven days with balance sale consideration.
(c)It is stated in the plaint that the plaintiff sent a reply to the notice sent by the 2nd defendant on 26.08.2011 inter alia, pointing out that he would be ready to pay balance sale consideration and get the Sale Deed registered on 29.08.2011 provided the defendants produce the necessary original documents for registration. It is also contended in the plaint that the plaintiff was present before the Sub Registrar from 27.08.2011 for about a week, but the defendants did not turn up to execute the Sale Deed. The plaintiff while applying for Encumbrance 4 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 Certificate, also came to know that the 2nd defendant had sold the property in favour of 3rd defendant on 15.09.2011 and that the said Sale Deed is fraudulent as the 3rd defendant is none else than the son of 2nd defendant. Stating that the Sale Deed executed by the 2nd defendant in favour of 3rd defendant is fraudulent, collusive and not binding on the plaintiff and that the plaintiff was ready and willing to perform his part of the contract by paying the balance sale consideration, the suit for specific performance was filed by the plaintiff / 1st respondent herein.
(d)The 1st defendant filed a written statement admitting that he is the owner and the general Power of Attorney Deed dated 16.06.2011 appointing the 2nd defendant as her Power of Attorney agent to sell the property. Strangely, the 1st defendant stated in her written statement that she was not aware of the alleged Sale Agreement dated 29.07.2011 and about the alleged sale consideration/advance paid or the terms of the contract. Stating that the plaintiff never informed about the alleged Agreement or about the readiness and willingness of the plaintiff to the 1st defendant, it is contended by the 1st defendant that it is not necessary 5 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 for her to execute the Sale Deed in favour of plaintiff. The 1 st defendant has admitted the sale effected by 2nd defendant in favour of 3rd defendant and it is stated by the 1st defendant that the sale in favour of 3rd defendant is for proper consideration and that the 2nd defendant as Power of Attorney agent, has settled the amount to the defendant. The further averments in the written statement would show that the 1 st defendant has joined with defendants 2 and 3 on all issues.
(e)The 2nd defendant filed a written statement and the same was also adopted by the 3rd defendant. The 2nd defendant admitted the Power of Attorney Deed executed by 1st defendant in his favour and the Sale Agreement dated 25.08.2011. Though the date of Sale Agreement is wrongly mentioned as 25.08.2011, from the reading of written statement, the 2nd defendant has admitted the Sale Agreement and the receipt of consideration as pleaded in the plaint. However, it is the case of 2nd defendant that the plaintiff did not show any intention to purchase the property after the Agreement and that the plaintiff attempted to wriggle out of the contract since he felt that the value of 6 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 property started coming down after execution of Sale Agreement. A specific plea is taken that the plaintiff did not take any steps to arrange balance of sale consideration and get the Sale Deed executed in his favour during the period specifically mentioned in the Agreement. Referring to the fact that the 2nd defendant issued notice on 25.08.2011, reminding the plaintiff that the time fixed in the Agreement is going to expire on 28.08.2011, it is stated that the 2nd defendant did not receive any notice from the plaintiff within the period fixed in the Agreement. The averment in the plaint that the plaintiff was always ready and willing to purchase the property is denied emphatically. It is specifically contended that the plaintiff did not even inform the 2nd defendant about his alleged readiness to get the Sale Deed within the time stipulated in the Agreement in terms of Agreement. The 2nd defendant also contended that the plaintiff did not come forward to pay the balance within the time and hence, the Agreement dated 29.07.2011 came to an end. It is specifically stated that the plaintiff came forward with new terms in his reply notice dated 26.08.2011 and 7 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 hence, he had sold the property to the 3rd defendant after the expiry of time stipulated in the Agreement in terms of the Agreement in view of the lapses and laches on the part of plaintiff. It is further stated in the written statement that the plaintiff is not entitled to the discretionary relief of specific performance and the money paid as advance by plaintiff is liable to be forfeited.
(f)The Trial Court framed the following issues:-
(a) Whether time is essence for the suit agreement dated 29.07.2011?
(b) Whether the plaintiff is ready and willing to perform his part of contract?
(c) Whether the plaintiff is entitled the relief of specific performance of the sale agreement dated 29.07.2011?
(d) Whether the plaintiff is entitled to relief of permanent injunction?
8 https://www.mhc.tn.gov.in/judis AS.No.1116/2015
(e) Whether the 3rd defendant is a bona fide purchaser without value and without notice?
(g)Plaintiff examined himself as PW1. On behalf of plaintiff, Exs.A1 to A18 were marked. Defendants 1 and 2 were examined as DW1 and DW2. Exs.B1 to B6 were marked on their side.
(h)Referring to the clauses in the suit Agreement to the effect that the plaintiff was given liberty to approach the Court when the defendants failed to execute the Sale Deed upon payment of balance of sale consideration after deducting a sum of Rs.10 lakhs paid as advance, the Trial Court held that time is not the essence of the contract. On the question of readiness and willingness, the Trial Court referring to a specific clause in the Agreement to the effect that the plaintiff had agreed to measure the suit property and to bring the original documents and observing that the defendants have not let in any evidence to show that the defendants were ready to hand over the original documents and measure the suit property, held that the plaintiff was ready and willing to perform his part of the contract, as the plaintiff has produced 9 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 documents to show that he was present before the Registrar's office from 26.08.2011 to 02.09.2011. Since the Trial Court has given a finding in favour of plaintiff regarding his readiness and willingness, the Trial Court held that the plaintiff is entitled to relief of specific performance of the suit Agreement after paying the balance sale consideration. Though the 2nd defendant executed the Sale Deed in favour of 3rd defendant who is none else than the son of the 2nd defendant for a sum of Rs.5,60,000/-, considering the fact that the sale is not a prudent act or a bond fide transaction, the Trial Court held that the Sale Deed in favour of 3rd defendant was only to defeat the rights of plaintiff. The Trial Court further held that the 3rd defendant is not a bona fide purchaser for value and therefore, the 3rd defendant also should join with defendants 1 and 2 to execute the Sale Deed in favour of plaintiff. The Trial Court also granted decree for permanent injunction. Aggrieved by the same, the above appeal is preferred by defendants 2 and 3.
10 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 (3)Mr.Ar.L.Sundaresan, learned Senior counsel appearing for the appellants / defendants 2 and 3 referred to the recitals in the Sale Agreement [Ex.A2] dated 29.07.2011 and submitted that time is the essence of the contract. Learned Senior counsel submitted that the plaintiff who has agreed to execute the Sale Deed within 30 days from the date of Agreement and who had agreed to fore-go his advance amount if he fails to pay the balance sale consideration within the stipulated time, did not come forward to pay the balance but called upon 2nd defendant to produce several documents without an intention to complete the sale after paying the balance. Learned Senior counsel therefore submitted that the plaintiff was never ready and willing to perform his part of the contract. Since readiness and willingness is the essential requirement for granting the relief of specific performance, learned Senior counsel submitted that the Trial Court has erroneously held that time is not the essence of the contract and that the plaintiff was ready and willing without adverting to the oral and documentary evidence. Referring to the evidence of PW1 who has admitted that he was satisfied with the title and obtained 11 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 encumbrance certificate before entering into the Agreement. Learned Senior counsel submitted that the plaintiff unnecessarily insisted the defendants to produce original documents and to measure the property only to avoid payment of balance within the time stipulated. Learned Senior counsel submitted that the Trial Court ought to have held that plaintiff was not ready and willing to perform his part of the contract in terms of the Agreement. Learned Senior counsel appearing for appellants referring to the contents of notice and reply notice and evidence of plaintiff submitted that the question of readiness and willingness has to be examined in the factual context and not by what plaintiff says in his plaint or evidence.
(4)The learned Senior counsel submitted that having agreed to pay the balance on or before 28.08.2011, the plaintiff has filed the suit only on 11.11.2011 and there is no explanation for the delay. Referring to the evidence of PW1 and his conduct, learned Senior counsel submitted that the plaintiff has failed to prove not only his readiness and willingness but also exhibited his intentional and deliberate attempt to delay the payment 12 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 of balance by contending that he would perform his part of contract only if the defendants hand over the documents he required and measure the property as stipulated in the Agreement.
(5)The learned Senior counsel then submitted that the plaintiff is not entitled to the equitable relief of specific performance in view of serious prejudice and loss that would be caused to the defendants in case the 2 nd defendant is compelled to execute the Sale Deed. The learned Senior counsel referring to a few precedents, submitted that the finding of the Trial Court that time is not the essence of contract is perverse. He submitted that the plaintiff is not entitled to the equitable relief of specific performance, is in the light of principles reiterated by Hon'ble Supreme Court and this Court in several judgments.
(6) Per contra, Mr.Naveen Kumar Murthi, learned counsel appearing for the plaintiff/1st respondent, referring to the conduct of 2nd defendant in selling the suit property in favour of 3rd defendant for a very low consideration, submitted that the conduct of 2nd defendant should always be considered as a relevant factor while deciding the issues on merits in a suit for 13 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 specific performance. Learned counsel submitted that time is not the essence of the contract whenever a contract is in relation to an immovable property and the law as reflected in several precedents in the past, has been reiterated by the Hon'ble Supreme Court in the recent pronouncements. Learned counsel then submitted that the appellants had specifically admitted the execution of Agreement and receipt of advance sale consideration and therefore, no further evidence or proof was required as held by the Hon'ble Supreme Court in the case of P.Ramasubbama Vs. Vijayalakshmi and Others reported in 2022 [7] SCC 384. Learned counsel for the 1st respondent/plaintiff then relied upon several judgments of Hon'ble Supreme Court and this Court to buttress his argument that time is not the essence of the contract and that the plaintiff need not prove his readiness and willingness to pay the balance within the time stipulated in a case of this nature where Agreement and receipt of substantial amount as advance, is accepted. (7)Considering the pleadings, evidence and the submissions of the learned counsels appearing on either side, this Court has to frame the following 14 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 points for determination:-
A) Whether time is essence of the suit Agreement marked as Ex.A2 dated 29.07.2011?
B) Whether the 1st respondent/plaintiff has proved his readiness and willingness to perform his obligation under the suit Agreement?
C) Whether the 1st respondent/plaintiff is entitled to the equitable relief of specific performance?
D) Whether the conduct of defendants is so bad to tilt the balance in favour of 1st respondent/plaintiff to grant the relief of specific performance despite this Court holding that the 1st respondent / plaintiff is not ready and willing to perform his part of contract?
POINT [A]:-
(8)Under the suit Agreement-Ex.A2 dated 29.07.2011, the total consideration agreed between the plaintiff and the 2nd defendant is Rs.27,71,400/- at the rate of Rs.6,20,000/- per acre for a total extent of 4.47 acres. The suit Agreement [Ex.A2] reads as follows:-15
https://www.mhc.tn.gov.in/judis AS.No.1116/2015 ''.....ek;kpy; 1 yf;fkpl;lth; bgaUf;F Midkiy rhh;gjptfj;jpy; gjpt[ bra;J bfhLf;fg;gl;Ls;s 4 g[j;jfk; 176-2011 be/bghJ mjpfhu gj;jpug;go ghj;jpag;gl;Ls;s ,jd;fPH; brhj;J tpguj;jpy; fz;Ls;s g[";irg{kp tifauhr; brhj;Jf;fis ,d;W ek;kpy; 2 yf;fkpl;ltUf;F Vf;fh; xd;Wf;F U:/6.20.000-= tPjk; g[/V/4/47 br/tp!;jPuzKs;s g{kpia U:/27.71.400-= f;F (U:gha; ,Ugj;njG ,yl;rj;J vGgj;J Xuhapuj;J ehD}W) fpiuaj;jpw;F bfhLg;gjhf ngrp xg;g[f;
bfhz;L. ehsJnjjpapy; ,jpy; fz;Ls;s rhl;rpfs; Kd;dpiyapy; 2 yf;fkpl;lthplkpUe;J 1 yf;fkpl;lth; U:/10.00.000-= (U:gha; gj;J ,yl;rk;) kl;Lk; fpiua ml;thd;rhf buhf;fk; bgw;Wf; bfhz;Ls;sgoahy; ,jdLj;j xU khj fhyf;bfLthfpa 28/08/2011 njjpf;Fs; 2 yf;fkpl;lth; brYj;Jk; kPjpf;fpiuaj; bjhif U:/17.71.400-= I (U:gha; gjpndG ,yl;rj;J vGgj;J Xuhapuj;J ehD}W) 1 yf;fkpl;lth; buhf;fkhfg; bgw;Wf;bfhz;L ,jpy; fz;Ls;s brhj;Jf;fis mse;J mjpuikj;J. rh;t tpy;y';f Rj;jpahft[k;. 16 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 fpiuag; gjptpw;F njitg;gLk; chpa rhd;WfSlDk;. 2 yf;fkpl;lth; brytpy; 2yf;fkpl;lth; tpUk;g[k; njjpapy; fpiuak; vGjp gjpt[ bra;J brhj;Jf;fisa[k; 2 yf;fkpl;lth; Rthjpdj;jpy; 1 yf;fkpl;lth; xg;gilf;f ntz;oaJ. nkw;fz;ltPjk; 2 yf;fkpl;ltUk; rk;kjpj;J ehsJ njjpapy; ,jpy; fz;l rhl;rpfs; Kd;dpiyapy; 1 yf;fkpl;ltUf;F U:/10.00.000-= buhf;fk; brYj;jp fpiua Ch;$pjk; bra;J bfhz;Ls;sgoahy; ,jdLj;j xU khj fhyf; bfL njjpf;Fs; kPjpf; fpiuaj; bjhifia 1 yf;fkpl;ltUf;F brYj;jp. ,jpy;fz;l brhj;Jf;fis jdJ tpUg;gk;nghy; jd; brytpy; fpiuak; vGjp 1 yf;fkpl;lth; K:ykhf fpiuag; gjpt[k;. RthjPdKk; bgw;Wf; bfhs;s ntz;oaJ/ nkw;fz;ltPjk; ic& bfL njjpf;Fs; kPjpf;fpiuaj; bjhifiar; brYj;jp g{kp RthjPdj;Jld; 2 yf;fkpl;lth; fpiuak; bgw;Wf;bfhs;sj; jahuhf ,Ue;J. 1 yf;fkpl;lth; fpiuak; bra;J bfhLf;f kWj;jhy;. 2 yf;fkpl;lth; jdf;F ec&;l 17 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 <lhf U:/10.00.000-=I gpoj;jk; bra;J bfhz;L ,e;j fpiua cld;gof;if Mtzj;ija[k;. kPjpf;fpiuaj; bjhifiaa[k; chpa ePjpkd;wj;jpy; jhf;fy; bra;J ePjpkd;wk; K:ykhf fpiuag; gjpt[k;. RthjPdKk; bgw;Wf; bfhs;tJ ek; ,UtUf;Fk; rk;kjk;/ nkw;fz;ltPjk; ic& bfL njjpf;Fs; kPjpf;fpiuaj;bjhifiag; bgw;Wf; bfhz;L g{kp RthjPdj;Jld; 1 yf;fkpl;lth; fpiuak; bra;J bfhLf;fj; jahuhf ,Ue;J 2 yf;fkpl;lth; fpiuak; bgw;Wf; bfhs;sj; jtwpdhy;. ,d;W brYj;jpa[s;s ml;thd;!; bjhifia 2 yf;fkpl;lth; ,He;JtpLtJld;. ,e;j fpiua cld;gof;if MtzKk;. ,jpy; fz;Ls;s rfy c&uj;Jf;fSk; bry;yj;jf;fjy;y. fpiuag; gjptpw;F Kd;ghf ,jpy; fz;Ls;s g{kpia mse;J mjpuikf;Fk; nghJ tp!;jPuzj;jpy; VnjDk; khw;w';fs; Vw;gl;lhy;. fzf;fpl;L ehk; ,UtUk; Kot[ bra;J bfhs;s ntz;oaJ/ 18 https://www.mhc.tn.gov.in/judis AS.No.1116/2015
(9)From the terms agreed between the parties, the sum of Rs.10 lakhs paid as advance was acknowledged under the Sale Agreement-Ex.A2. The plaintiff/1st respondent agreed to pay balance amount of Rs.17,71,400/-
within a period of one month from the date of Agreement. The date is specified with a condition that the plaintiff should come forward to pay the balance on or before 28.08.2011. Only upon payment of the said balance before 28.08.2011, the 2nd defendant was required to measure the property and to execute the Sale Deed by producing the record and Certificates on the date specified by the plaintiff. It was further agreed that the 2nd defendant should also hand over possession following execution of the Sale Deed, upon payment of balance sum within one month. In case, the 2nd defendant refused to execute the Sale Deed in spite of plaintiff being ready with the balance amount and get the Sale Deed, the plaintiff was given option to approach the Court to seek specific performance after paying the balance consideration deducting a sum of Rs.10 lakhs paid as advance. There is a default clause in the Agreement to the effect that the plaintiff will lose the amount paid as 19 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 advance in case he fails to pay the balance and get the Sale Deed within the time specified.
(10)A Constitution Bench of the Hon'ble Supreme Court in the case of Chand Rani [died] by LRs Vs. Kamal Rani [Died] by LRs reported in 1993 [1] SCC 519, after referring to several decisions and law in England and India, summarised the position in paragraph No.25, which is extracted below:-
''25.From an analysis of the above case law, 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.'' (11)For the precise understanding of the judgment of the Hon'ble Supreme Court in Chand Rani's case [cited supra], a brief reference to the facts of that case dealt with by the Hon'ble Supreme Court is also relevant. Before 20 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 the Hon'ble Supreme Court, the relevant clause in the Agreement reads as follows:-
''1.That in pursuance of the said agreement, the 1st party has received a sum of Rs.30,000/- [Rupees Thirty Thousand only] from the second party as earnest money the receipt whereof the 1st party hereby separately acknowledges Rs.98,000/- [Rupees Ninety Eight Thousand only] will be paid by the 2nd party to the 1st party within a period of ten days only and the balance of Rs.50,000/- [Rupees Fifty Thousand only] at the time of registration of the sale deed before the Sub Registrar, New Delhi.'' (12)The Hon'ble Supreme Court agreed with the view expressed by the High Court that the word ''only'' has been used to qualify the amount of Rs.98,000/- and to qualify the period of ten days. The Hon'ble Supreme Court concurred with the judgment of the Division Bench of High Court to hold that time has been agreed between parties as the essence of the 21 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 contract. Since the plaintiff therein failed to pay a sum of Rs.98,000/-
within ten days as agreed, under the Sale Agreement, the Hon'ble Supreme Court refused to grant the relief in favour of plaintiff therein and affirmed the findings of the High Court that the plaintiff therein was not ready and willing to perform his part of the contract. The Judgment of the Hon'ble Supreme Court in Chand Rani's case is an appropriate precedent in this case to follow and to hold that time is the essence of the contract as the parties have consciously specified the time and the consequences in case the plaintiff therein fails to adhere to the time stipulation.
(13)It may be relevant to mention that the judgment of the Hon'ble Supreme Court in Mademsetty Sathyanarayana Vs. G.Yelloji Rao reported in AIR 1965 SC 1405, has been followed by the Hon'ble Supreme Court in some of the recent judgments to hold that mere delay cannot be a ground for refusing the relief of specific performance in India as the statute prescribes the period of limitation and the delay is sanctioned by law if the suit is in time. This judgment was considered and held to be one 22 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 required to be revisited in a few judgments of Hon'ble Supreme Court having regard to the realities by the continuous rise in price of urban properties fueled by several factors like large scale migration of people from rural areas to urban areas and inflation etc. (14)This Court has made a search and found astonishing statistics regarding demand for lands and the statistics showing constant decrease of waste lands with a constant increase in population. The total land area in India was reported to be 29,73,190 sq.km. in the year 2021 and it is constant. However, the reduction in area of waste lands over a period of time is significant. Immediately after independence, several State Governments have brought about legislations for requisitioning and utilising all waste lands by converting the same as cultivable lands and for public purpose to enhance utilisation of waste lands. Before the introduction of Ryotwari Settlement in the State of Tamil Nadu, the Government has created several leasehold rights in respect of lands vested with Government after the advent of Tamil Nadu Act 26 of 1948, [Tamil Nadu Estate [Abolition and Conversion into Ryotwari] Act], Act 26 of 1963 [Tamil Nadu Inam 23 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 Estates [Abolition and Conversion into Ryotwari] Act, 1963 and Act 30 of 1963 [Tamil Nadu Minor Inams [Abolition and Conversion into Ryotwari] Act, 1963].
(15)It is to be noted that 1000s of Hectare of commercial lands were taken over by the Government and classified as 'Poramboke lands'. Even the poramboke or waste lands of the Government were distributed to poor landless farmers vide G.O.Ms.No.241 with an intention to develop the waste lands as cultivable lands. However, schemes for development of lands is no more in vogue for obvious reasons. It is a fact that lands cannot be manufactured and therefore, the demand for agricultural land or urban land for the purpose of urbanization or industrialisation or for other purposes has constantly grown with the growing population. Whether it is in urban area or in rural area, the prices for the lands will go on increasing every day. The latest information available from the agricultural census, average size of operational holdings has decreased from 2.28 Hectares in the year 1970-71 to 1.08 Hectares in the year 2015-
16. With the focus on development of infrastructure, industries, 24 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 educational institutions, hospitals, planned urbanization, the growing demand for land is remarkable. The escalation of cost of land and building is due to several factors and we cannot imagine of reversal. The market size of real estate in India is constantly growing. To be precise, the World Bank has estimated the Real Estate Sector in India to reach US$ 1 Trillion in market size by 2030 from US$200 billion in 2021 and it has gone up at the rate of 5 times over a period of nine years. The Government of India and the respective State Governments have taken several initiatives to encourage development in Real Estate Sector. With the implementation of Smart City projects with a plan to build Smart Cities, the Real Estate Companies have increased their investment considerably. The statistics available would show the growth in construction and sales of residential houses or units across India and the lands utilised for infrastructure and development and other industrial and services sectors indicates positive impact on the property market. A marginal increase in purchasing power and a rise in demand for property along with the growth and development of service sectors, industrial 25 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 sectors and commercial establishments will give a clear picture as to how the constant rise in price of land is accounted for. During 1960s, vast extent of surplus lands and waste lands were It is a reality that prices of immovable properties have gone in multi-folds and this is not going to saturate at any point of time because of factors which we have indicated earlier. Cities tend to grow in size and as a result, even the agricultural lands adjoining the Cities are being converted for different land use. Therefore, it is unlikely that there will be any scope for fall in price in future for the lands or buildings.
(16)As pointed out by the Hon'ble Supreme Court in the case of K.S.Vidyanadam Vs. Vairavan reported in AIR 1997 SC 1751 : 1997 [3] SCC 1, inflation is also a factor. In K.S.Vidyanadam's case [cited supra], the Hon'ble Supreme Court observed 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. The Hon'ble Supreme Court, in the said judgment went to the extent of 26 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 observing unreasonable delay as a reason for refusing specific performance when the delay is considered as an inaction on the part of plaintiff therein. The Hon'ble Supreme Court further held that the delay between the date of Agreement and the date of notice will bring about a situation where it would be inequitable to grant the relief of specific performance to the plaintiff. Even after twenty five years later, this Court cannot be oblivious to the realities.
(17)It is important to note that the Hon'ble Supreme Court in K.S.Vidyanadam's case [cited supra], referred to Sections 10 and 16[c] of Specific Relief Act and Section 55 of the Indian Contract Act and Article 54 of Schedule to Limitation Act. The consideration of Hon'ble Supreme Court on the scope of Section 16[c] of Specific Relief Act and the legal implication of Section 55 of Indian Contract Act though assumes no significance after the 2018 amendment in Specific Relief Act, the position reiterated by the Hon'ble Supreme Court earlier is applicable to the case on hand and every other case where the Agreement is before 27 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 2018 amendment. This Court is bound to follow the principles reiterated by the Hon'ble Supreme Court in all the judgments. (18)Following its judgment in K.S.Vidyanadam's case [cited supra], the Hon'ble Supreme Court in Saradamani Kandappan Vs. S.Rajalakshmi and Others reported in 2011 [12] SCC 18, elaborately discussed several issues in the light of change of circumstances, has observed in Paragraph No.43 as follows:-
''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 28 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 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 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.'' In view of the principles reiterated by the Hon'ble Supreme Court in the above cited judgments, this Court has no hesitation to hold that time is the essence of the contract in the present case. The reason assigned by the Trial 29 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 Court to hold time is not the essence of suit Agreement cannot be appreciated. Hence, POINT [A] is answered in favour of appellants/defendants 2 and 3.
POINT [B]:-
(19)After hearing the elaborate arguments of the learned counsel appearing for the 1st respondent/plaintiff, this Court is of the view that it is relevant to extract some of the statutory provisions that are relevant to the case on hand.
(20)Section 9 of Specific Relief Act, 1963, reads as follows:-
''9.Defence respecting suits for relief based on contract:-
Except as otherwise provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts.'' 30 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 (21)Section 16 of the Specific Relief Act, 1963, reads thus:-
16.Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person—
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation.—For the purposes of clause (c),—
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
31 https://www.mhc.tn.gov.in/judis AS.No.1116/2015
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
(22)Section 20 of the Specific Relief Act, 1963, reads thus:-
20.Discretion as to decreeing specific performance.— (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:—
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would 32 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.—The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
33 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.
(23)Sections, 46, 51, 52, 53, 54 and 55 of the Indian Contract Act, 1872, are usefully extracted below:-
''46.Time for performance of promise, when no application is to be made and no time is specified.— Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. Explanation.— The question “what is a reasonable time” is, in each particular case, a question of fact.
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 .
52.Order of performance of reciprocal 34 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 promises.—Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires.
53.Liability of party preventing event on which the contract is to take effect.—When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented; and he is entitled to compensation 1 from the other party for any loss which he may sustain in consequence of the nonperformance of the contract.
54.Effect of default as to that promise which should be first performed, in contract consisting of reciprocal promises.—When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the 35 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract.
55. Effect of failure to perform at fixed time, in contract in which time is essential.—When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
Effect of such failure when time is not essential.—If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
Effect of acceptance of performance at time other than that agreed upon.—If, in case of a contract voidable on account of the promisor’s failure to 36 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-
performance of the promise at the time agreed, unless, at the time of such acceptance, he gives notice to the promisor of his intention to do so.'' (24)Section 46 of Contract Act speaks about the obligation on the promisor to perform his promise within reasonable time, even if no time is fixed. Where time for payment of price is fixed and made as essence in an agreement to sell immovable property and the payment is not linked to the execution of the Sale Deed and execution of the Deed can be at convenience of purchaser and dependent on satisfaction of title, the payment of money within time is an unconditional obligation even as per Section 51 of the Contract Act. In the present case the terms of agreement are specific that payment of balance of sale consideration within one month is independent and only upon payment of balance, the obligation of vendor to execute Sale Deed will arise. In this case the order of performance is fixed and the nature of transaction also requires 37 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 the plaintiff to pay the balance before he calls upon the 2nd defendant to the Registrar's office. In terms of Section 53 of Contract Act, when the plaintiff commits breach of contract, the contract becomes voidable. Under Section 54 of Contract Act, plaintiff who failed to perform his obligation cannot insist the defendants to execute Sale Deed that too, after producing the list of documents which are not found in the Agreement.
(25)Section 55 of the Indian Contract Act renders contract void at the option of any one of the parties when the other party fails to perform his part on or before the specified time when time is the essence of contract. Even when time is not the essence of the contract, the promisee is entitled to compensation from the promisor for any loss caused to him by the failure. There may be instances where the promisee accept performance of such promise even though the contract is voidable on account of the promisor's failure to perform his part within the time agreed. Therefore, from the reading of Sections 46 and 51 to 55 of Indian Contract Act, the provisions of the Contract Act plays vital role in deciding several issues. The real 38 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 obligations and implications of every act of parties can be well defined and understood to determine every issues relating to the rights and obligations of parties to an Agreement in a suit for specific performance. The Court cannot be ignorant to the provisions of the Contract Act. (26) As observed by the Hon'ble Supreme Court in K.S.Vidyanadam's case [cited supra], as found in sub-section 1 of Section 20 of Specific Relief Act, the jurisdiction to decree the suit for specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. Section 55 of the Contract Act gives an option to the vendor to repudiate the contract if the purchaser fails to pay the money within the time specified. Since this Court has already held that time was made as the essence of the contract, the consequences that would follow is that the defendant has every right to repudiate the contract on the ground that the plaintiff has not come forward to pay the balance within the stipulated time.
(27)In the instant case, the learned Senior counsel for the appellants referred 39 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 to the pleadings and pointed out that the plaintiff and the 2nd defendant have exchanged notices on 25.08.2011 simultaneously without knowing the contents of the notice issued by the other. It is to be seen that under Ex.A4, the 2nd defendant issued a notice specifically stating that the plaintiff has not come forward to pay the balance in spite of specific request to pay the balance within the time stipulated in the Agreement. A warning note is also found in the notice that the advance paid by plaintiff is liable to be forfeited if the plaintiff does not come forward to pay the balance. In case the plaintiff fails to come forward to get the Sale Deed by paying the balance before 28.08.2011, it is stated that the Agreement will be cancelled. In the notice under Ex.A3 dated 25.08.2011, the plaintiff's advocate called upon the 2nd defendant to execute the Sale Deed after receiving the balance amount on 29.08.2011 as 27.08.2011 and 28.08.2011 are holidays. In the notice, the plaintiff asked the 2nd defendant to come and execute the Sale Deed after discharging the encumbrances and to come with a few documents. However, after the receipt of Ex.A4 notice, the plaintiff issued a reply under Ex.A5 dated 40 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 26.08.2011. In the said reply also, the plaintiff called upon the 2nd defendant to come to the registrar's office where the plaintiff would be waiting on 29.08.2011. The plaintiff required the 2nd defendant to bring the following documents to the Registrar's office on 29.08.2011 or on any day within seven days:-
a) Original Will registered as Doc.No.21/1944 before Anaimalai Sub Registrar Office.
b) The Death Certificate of Kaliammal
c) The Legal Heirship Certificate of Kaliammal
d) The Computer Chitta in the name of Velammal @ Velathal.
e) The Field Map
f) The original Power of Attorney Deed executed by Velammal @ Velathal.
g) Encumbrance Certificate for a period of 32 years for the property.
(28)It is the duty of every seller to produce every document that may be required by the purchaser to verify the title. However, the plaintiff during cross-examination has admitted as follows:-41
https://www.mhc.tn.gov.in/judis AS.No.1116/2015 ''...xU brhj;J th';Ftjw;fhd eilKiwfs; vd;d vd;d vd;W vdf;F bjupa[k;/ th/rh/M/2 xg;ge;jjpw;F Kd;ghf xg;ge;jj;jpy; fz;l brhj;ij ghh;j;J jpUg;jp mile;j gpwnf xg;ge;jj;jpy; <Lgl;nld;/ xg;ge;j brhj;J ahUf;F ghj;jpak; vd;w tptuj;ija[k; 2Mk; vjph;thjp vjdog;gilapy; xg;ge;jk; bra;fpwhh; vd;gija[k; bjhpe;Jjhd;
xg;ge;jj;jpy; <Lgl;nld;/ xg;ge;j njjptiu
xg;ge;j brhj;jpy; tpy;y';fk; VJk; ,y;iy
vd;gij bjhpe;Jjhd; xg;ge;jk; nghl;nlhk;/// ////1Mk; vjph;thjp ntyhj;jhs; (v) ntyk;khs; jhd; tHf;F brhj;jpd;
chpikahsh; vd;gij ehd; xg;ge;j njjpapy;
bjhpe;J bfhz;Ls;nsd;////
/////th/rh/M/2 fpiua xg;ge;jj;jpy; cs;s
c&uj;Jf;fis ehDk; 2Mk; vjphthjp
Re;juh$%k; ngrpj;jhd; Kot[ bra;J
vGjpndhk; vd;why; rhpjhd;/ th/rh/M/2y;
fz;Ls;s epge;jidgs; midj;Jf;Fk;
kdg;g{h;tkhf xg;g[f;bfhz;Ljhd; xg;ge;jj;jpy;
ifbahg;gk; bra;njd; vd;why; rhpjhd;////
///th/rh/M/2y; bfL xU khjk; vd;Wk;.
42
https://www.mhc.tn.gov.in/judis
AS.No.1116/2015
28/08/2011 tiu kl;Lnk vd
xg;g[f;bfhs;sg;gl;Ls;sJ vd;why; rupjhd;////\
/////xg;ge;jj;jpy; fz;lgo U:/10 yl;rj;ij
fHpj;Jf;bfhz;L kPjp fpiua bjhifia
ehsJ tiu ePjpkd;wj;jpy; itg;gPL
bra;atpy;iy vd;why; rhpjhd;/////
(29)From the evidence of PW1, there is clear admission to the effect that the plaintiff entered into Agreement after satisfying himself about the ownership and the basis under which the 2nd defendant had agreed to sell and the locus standi of 2nd defendant to enter into Agreement and admitted that he has agreed to the terms of Agreement in full and he was aware that he has to perform his part of the contract within one month from the date of Agreement. Above all, the plaintiff has come forward with the specific case that he was ready to perform his part of contract and waiting in the Registrar's office. He stated that he was ready with the document of sale and the 2nd defendant did not come to the Registrar office. He also deposed that he did not contact the 2 nd defendant since the 2nd defendant did not come to the Registrar's office. Though the plaintiff came forward with the specific case that he had prepared the Sale Deed 43 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 and purchased stamp duty for the same, during further cross-examination, he admitted that he has purchased stamp duty for Rs.50,000/- only and he did not prepare the Sale Deed as contended by him. It is pertinent to mention that the stamp duty required is more than Rs.2,00,000/-. During further cross-examination, the plaintiff admitted that he saw 2nd defendant in the Sub Registrar's office and that he did not speak to him. However, his explanation is that the 2nd defendant had already refused to execute the Sale Deed and therefore the plaintiff did not ask the 2nd defendant about the Sale Deed. Going by the entire evidence, there was no correspondence or personal conversation between plaintiff and 2nd defendant after exchange of notices. After receipt of notice from the 2nd defendant, the plaintiff issued a reply-Ex.A5 asking the 2nd defendant to come to the Registrar's office with the documents mentioned in Ex.A5-
notice and to execute Sale Deed after receipt of balance of sale consideration. There is no other communication in between. If the version of plaintiff is true, he would have asked the 2nd defendant to accept the money and execute the Sale Deed or enquired about the 44 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 documents he had sought for in his notice dated 26.08.2011 under Ex.A5. Consciously, the plaintiff avoided meeting the 2nd defendant. From the evidence of PW1, this Court is able to see that the plaintiff was conscious about his commitment and obligation to pay the balance within one month from the date of Agreement. However, his conduct in calling upon the 2nd defendant to the Registrar's office with several documents which are not required before paying the balance consideration is crucial to assess the readiness and willingness. The plaintiff has produced the statement of accounts furnished by the Bank. The Bank statements are marked as Exs.A7 and A8 subject to objection. Assuming that Exs.A7 and A8 can be admitted as evidence without examining the person who issued the Statements, it is relevant to point out that the plaintiff did not have the money to pay the balance when he filed the suit for specific performance. It is to be noted that in IDBI Bank at Pollachi, the plaintiff was having balance of Rs.2,28,000/- and withdrawn a sum of Rs.2,00,000/- on 26.08.2011. Similarly, the plaintiff was having a sum of Rs.14 lakhs and odd to his credit as on 26.08.2011. He withdrew a sum 45 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 of Rs.14.5 lakhs on 27.08.2011. It is admitted that no amount was offered or paid to the 2nd defendant till the suit was filed. Thereafter, the plaintiff deposited certain amount in cash during October 2011 to accumulate his savings at Rs.6.60 lakhs. From the conduct of the plaintiff, this Court is unable to hold that the plaintiff was ready and willing before the date specified in the Agreement to perform his part of the contract by paying balance sum of Rs.17,71,400/-. (30)The Hon'ble Supreme Court in the case of Man Kaur Vs. Arthar Singh Sangha reported 2010 [6] CTC 652 : 2010 [10] SCC 512, has held as follows:-
“40. …..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 46 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 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 had 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.” 47 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 (31)Having regard to the peculiar facts and circumstances of the case, this Court is conscious of the fact that the decision of this Court on either way will materially affect the right and the prospects of the plaintiff or the appellants/defendants 2 and 3. Therefore, this Court has consciously considered the evidence and documents. The Trial Court erroneously held that time is not the essence of the contract on the ground that the suit Agreement gives an option to the plaintiff to deposit the balance amount in Court and seeks specific performance in case the defendants fail to execute the Sale Deed. The said finding is perverse. The Trial Court further held that the plaintiff was ready and willing to perform his part of the contract in terms of the suit Agreement as the defendants have agreed to measure property, hand over original documents and execute the Sale Deed, but did not come forward to establish their willingness to execute the Sale Deed. On the other hand, the plaintiff has given evidence to the effect that he was ready and willing to perform his part of the contract.
The Trial Court has proceeded on the basis that the 2nd defendant did not come forward to execute the Sale Deed after receiving a sum of Rs.10 48 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 lakhs as advance and therefore, the plaintiff is entitled to the relief of specific performance. The approach of the Trial Court cannot be appreciated having regard to the position that it is for the plaintiff to prove his readiness and willingness in terms of the Agreement. Assuming for the sake of argument that the plaintiff was ready with the money, the plaintiff has to further prove his readiness. In the instant case, the conduct of the plaintiff would show that the plaintiff called upon the 2nd defendant to produce the original documents of title Deed as well as the death and legal heirship certificate of Kaliammal. If really the plaintiff had a genuine apprehension after the initial negotiation with the 2nd defendant, he would have called upon the 2nd defendant to produce all the documents well before the date meant for registration of Sale Deed after payment of balance.
(32)The question now before us is whether the plaintiff who was required to pay a huge sum of Rs.17,71,400/- was ready and willing to pay the said sum to the 2nd defendant as agreed?
(33)After verifying the title, it may still be open to the purchaser to see the 49 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 original documents. It is not necessary for the plaintiff to ask the vendor to come to the Registrar's office with all the documents. It may not be possible for the plaintiff to verify the title deeds on his own as he may require the assistance of an advocate. If really he had some bona fide doubts or wanted to verify the title, it should be well in advance and not just one day before the date specified. It has now become a practice for every purchaser to issue notice just few days before the date specified in the Agreement to call upon the defendant to come to the Registrar's office with documents or to survey and demarcate the land. It is the duty of every vendor to sell the property free from encumbrance and the obligations and duties of seller is a statutory requirement. The plaintiff, under the Agreement, did not require the 2nd defendant to measure the property or to produce the documents before paying the balance on or before 28.08.2011. The conduct of plaintiff by issuing a notice asking the vendor to come to the Registrar office with documents to execute the Sale Deed after receipt of balance sale consideration is a deliberate act with an intention to delay performance.
50 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 (34)The learned counsel for the 1st respondent/plaintiff pointed out the conduct of 2nd defendant in executing the Sale Deed in favour of his own son, the 3rd defendant just before filing the suit for specific performance. The consideration alleged to have been received by the 2nd defendant for the sale in favour of 3rd defendant would of course, indicate that it is a sham transaction, may be to create some uncertainty in the minds of plaintiff as to the future course of action. In this case, having regard to the overall evidence, this Court finds that the conduct of 2 nd defendant shows only his disappointment. Assuming that the 2nd defendant was not willing to execute the Sale Deed after the time specified in the Agreement was over, this Court will justify the conduct of 2nd defendant if the 2nd defendant establishes that the plaintiff was not ready and willing to pay the balance before the time stipulated in the Agreement. As pointed out earlier, Section 55 of the Contract Act gives an option to the 2nd defendant to repudiate the contract as a whole when he realises that the plaintiff was not ready and willing to pay the balance as agreed. In the written 51 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 statement filed by 2nd defendant, it is specifically stated that plaintiff was never ready and willing to perform his part of the contract as he did not inform about his readiness to get the Sale Deed upon payment of balance. At the relevant point of time there were exchange of notices. Since the burden lies on the plaintiff to prove his readiness and willingness in terms of Section 16[c] of Specific Relief Act, the plaintiff cannot by repeating what he has stated in the notice and the plaint to establish his case without actual proof of readiness and willingness. (35)The learned counsel appearing for the 1st respondent/plaintiff referring to the written statement filed by 1st defendant pointed out that the 2nd defendant as Power of Attorney holder has not even informed the 1st defendant about the Sale Agreement and the receipt of sale consideration by the 2nd defendant and therefore, the plaintiff cannot be found fault with if he insists the 2nd defendant to produce the original documents of title and other documents as required from the 2nd defendant under Exs.A4 and A5. This Court is unable to countenance this argument as the conduct of parties should be assessed at the relevant point of time, i.e., before the 52 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 time specified in the Agreement for performance and not by getting any clue from the written statement. The plaintiff had no reason for doubting the 2nd defendant's comptence to enter into the contract or to entertain a doubt as to the marketable title of 1st defendant. Having paid a substantial amount towards advance, the plaintiff would have insisted every document and its original for perusal long before the time specified in the Agreement. There is no reason for the plaintiff to deprive himself of every opportunity he had well before the time specified in the Agreement. In the absence of any explanation, why the plaintiff did not come forward to pay the balance as agreed under the Agreement, this Court has no other option but to hold that the plaintiff has not proved his readiness and willingness to pay the balance of sale consideration as agreed under Ex.A2-Agreement.
(36)Learned counsel for the 1st respondent relied upon the following precedents:-
(a) The judgment of the Hon'ble Supreme Court in the case of Lakshmikantham Vs. Devaraji reported in 2019 [8] SCC 62. The 53 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 Hon'ble Supreme Court, while referring to the judgment in the case of Mademsetty Satyanarayana Vs. G.Yelloji Raod and Others reported in AIR 1965 SC 1405, has held as follows:-
''11.The High Court order is not correct in stating that readiness and willingness cannot be inferred because the letters dated 18.12.2002 and 19.12.2002 had not been sent to the defendant. The High Court also erred in holding that despite having the necessary funds, the plaintiff could not be said to be ready and willing. In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the suit against the plaintiff to state that he was not ready and willing. In India, it is well settled that the rule of equity that exists in England, does not apply and so long as a suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff..''
(b) In P.Ramasubbamma Vs. V.Vijayalakshmi and Others reported in 54 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 2022 [7] SCC 384, a Two Member Bench of the Hon'ble Supreme Court, has held as follows:-
''9. Considering the fact that original Defendant 1—vendor original owner admitted the execution of agreement to sell dated 12-4-2005 and even admitted the receipt of substantial advance sale consideration, the learned trial court decreed the suit for specific performance of agreement to sell dated 12-4-2005. Once the execution of agreement to sell and the payment/receipt of advance substantial sale consideration was admitted by the vendor, thereafter nothing further was required to be proved by the plaintiff vendee. Therefore, as such the learned trial court rightly decreed the suit for specific performance of agreement to sell. The High Court was not required to go into the aspect of the execution of the agreement to sell and the payment/receipt of substantial advance sale consideration, once the vendor had specifically admitted the execution of the agreement to sell and receipt of the advance sale consideration; thereafter no further evidence and/or proof was required.'' (37)From the facts noticed from the said judgment, it is seen that out of total 55 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 consideration of Rs.29 lakhs, the plaintiff therein/purchaser has paid a sum of Rs.20 lakhs under the Agreement as advance and thereafter paid a further sum of Rs.6 lakhs on 25.03.2008 during the subsistence of contract. It was the case of plaintiff therein that despite repeated requests, the 1st defendant therein did not come forward to execute the Sale Deed in favour of plaintiff but executed 2 Sale Deeds in favour of defendants 3 and 4 to defraud the plaintiff. From the evidence recorded, it was not stated whether any time limit was prescribed in the Agreement.
The defence taken by the defendant in the written statement was that the Sale Agreement is a created document.
(38)Similarly, the Hon'ble Supreme Court in the case of Madukar Nivrutti Jagtap v. Pramilabai Chandlal Parendekar and Others reported in 2020 [15] SCC 731 has held as follows:-
'' 13.5. So far the period between the year 1966 to the year 1968 is concerned, when the plaintiffs had the limitation of three years for filing the suit for specific performance, it cannot be said that during the aforesaid period, the plaintiffs were required to show overt act by them in furtherance of the agreement in 56 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 question. The principles stated in the decisions in Azhar Sultana [Azhar Sultana v. B. Rajamani, (2009) 17 SCC 27 : (2011) 1 SCC (Civ) 761] , Veerayee Ammal [Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134] and Pushparani S. Sundaram [Pushparani S. Sundaram v. Pauline Manomani James, (2002) 9 SCC 582] , as relied upon by the learned counsel for the appellants, are not of any doubt or debate but each of the said cases had proceeded on its own facts. We may also observe that in Azhar Sultana [Azhar Sultana v. B. Rajamani, (2009) 17 SCC 27 : (2011) 1 SCC (Civ) 761] , the Court found that as against the agreement dated 4-12-
1978, the suit for specific performance was filed on 7- 12-1981, after the property was sold on 31-10-1981; and that the plaintiff failed to show that she was not having notice of the subsequent sale. However, in the said case, the Court directed monetary payment to the tune of twice the amount advanced by the plaintiff. In Veerayee Ammal [Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134] , this Court pointed out that the expression “reasonable time” for performance on the part of plaintiff would depend on the circumstances of 57 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 the case, including the terms of contract. In Pushparani S. Sundaram [Pushparani S. Sundaram v. Pauline Manomani James, (2002) 9 SCC 582] , the basic requirements of Section 16 of the 1963 Act were reiterated. In contrast to what is suggested on behalf of the appellants, we may point out that recently, in R. Lakshmikantham v. Devaraji [R.Lakshmikantham v. De varaji, (2019) 8 SCC 62] , this Court has again explained that when the suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff. This Court has said : (SCC p. 66, para 11) “11. … In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the suit against the plaintiff to state that he was not ready and willing. In India, it is well settled that the rule of equity that exists in England, does not apply, and so long as a suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff — [Mademsetty Satyanarayana v. G. Yelloji Rao, AIR 1965 SC 1405] (para 7) which reads as under : (AIR p. 1409) ‘7. Mr Lakshmaiah cited a long catena of 58 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 English decisions to define the scope of a court's discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems—English and Indian— qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay—the time lag depending upon circumstances—may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises.’ ” 13.6. In the present case too, when the plaintiffs had the limitation of three years for filing the suit and have indeed filed the suit well within limitation; and looking to the overall circumstances of the case, no aspect of delay operates against them.'' 59 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 (39)This Court has noticed few other judgments of Hon'ble Supreme Court relying upon the judgment of the Hon'ble Supreme Court in the case of R.Lakshmikantham Vs. Devaraji reported in 2019 [8] SCC 62 holding that time is not the essence of the contract and that a suit for specific performance cannot be dismissed merely because the suit is filed with an unexplained delay but within the period of limitation. It is well settled that time can be made as an essence of contract by specific terms of the Agreement. The issue has been decided based on the guidelines of the Hon'ble Supreme Court in the case of Chand Rani [dead] rep.by LRs Vs. Kamal Rani [Dead] rep.by LRs reported in 1993 [1] SCC 519. When this Court has already held that time is the essence of the contract, the basic principle behind Section 16[c] of the Specific Relief Act read with Explanation [2] is that any person seeking the benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout, entitle him to the specific relief. The Hon'ble Supreme Court has repeatedly held that Section 16[c] of Specific Relief Act imposes a personal bar. Therefore, it is imperative that without a 60 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 specific plea and proof regarding readiness and willingness, the plaintiff is not entitled to the equitable relief of specific performance. (40)In C.S.Venkatesh Vs. A.S.C.Murthy [Dead] rep.by LRs and Others reported in 2020 [3] SCC 280, the Hon'ble Supreme Court held that the plaintiff must prove his readiness and willingness to perform his part of the contract right from the date of execution of contract till the decree and that the conduct of plaintiff can be inferred from the facts and circumstances of the case. In Ravi Setia Vs. Madan Lal and Others reported in 2019 [9] SCC 381, the Hon'ble Supreme Court held that mere extension of time to deposit does not absolve plaintiff of his obligation to demonstrate readiness and willingness and the non-deposit within the time was also taken as relevant circumstance and the conduct of plaintiff to consider the issue of readiness and willingness. (41)This Court has seen earlier that the requirement for land is going high by the growing population and other developments. Since lands cannot be manufactured, our country is facing problems in finding suitable lands for residential or commercial or industrial or for infrastructure 61 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 developments. The contracting parties in an Agreement of sale in respect of immovable properties, both vendor and purchaser knows that the price is not going to be the same. The Hon'ble Supreme Court even in 1970s, has allowed 10 to 12% every year towards escalation when sale exemplers long prior to the notification issued under Section 4[1] of the Land Acquisition Act are considered for determining market value. Normally, when land or building is sold in an open market by persons for meeting marriage expenses, educational expenses or urgent medical expenses or other compelling family necessity, the person in need of urgent money may not have the equal bargaining power. This Court is conscious of the fact that even the Sale Deeds are executed in favour of persons who advance loan on a simple promise from the financier that he would reconvey the land upon receipt of the amount borrowed with interest within a particular period. A person may agree to sell the property for a price which is lesser than the market value even on the date of Agreement. The Hon'ble Supreme Court taking note of several circumstances and taking judicial notice of inflation and other factors in 62 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 the case of K.S.Vidyanadam Vs. Vairavan reported in 1997 [3] SCC 1 has held that greater scrutiny and strictness will be applied by Courts while considering whether the purchaser was ready and willing to perform his part of the contract.
(42)In the background of several judgments of the Hon'ble Supreme Court by referring to Section 16[c] of Specific Relief Act and the relevant provisions of the Contract Act, this Court is unable to mislead itself by referring to some of the observations made in few judgments of the Hon'ble Supreme Court expressing that time is always not an essence of the contract and the suit filed by plaintiff within limitation cannot be dismissed merely by citing total inaction on the part of plaintiff to perform his part of the contract or to file a suit for specific performance. (43)In the present case, the Trial Court however held that the defendants have not produced any evidence to show that they were willing to hand over original documents of title deeds or that the defendants came forward to measure the property. The Trial Court proceeded on the basis that the plaintiff herein has to prove his readiness and willingness only 63 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 when the defendants come forward to perform their part of the contract and therefore, the plaintiff's statement that he was ready and willing to perform his part of the contract can be accepted. The approach of the Trial Court is erroneous and quite contrary to the principles reiterated by the Hon'ble Supreme Court in several precedents above referred to. Hence, this Court holds that the 1st respondent/plaintiff has not proved his readiness and willingness to perform his part of the contract. Point [B] is answered accordingly.
POINT [C]:-
(44)In the case on hand, as pointed out earlier, it is the obligation of the defendants / vendors to hand over document of title deed at the time of execution of Sale Deed upon receipt of balance of consideration. It may be necessary in some cases where the plaintiff requires copy of the original documents of title deed either for getting legal opinion as to the marketable title of the defendants or to find from the Registrar's office, the encumbrance or the enjoyment of the property by the defendants at the time of entering into the transaction or before completion of Sale 64 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 Deed. It is not the case of plaintiff in the present case that the plaintiff has never seen the original documents or was unable to get the copy of documents of title deeds at the time of entering into the Sale Agreement.
The plaintiff in the present case, has categorically admitted several facts about the verification of records and encumbrance certificate obtained by him before entering into the Sale Agreement.
(45)As pointed out in several judgments of Hon'ble Supreme Court, the conduct of plaintiff in the present case calling upon the defendants to come to the Registrar's Office with the list of documents would clearly show that the intention of plaintiff was not to get the Sale Deed by paying the balance as per the Agreement but to delay performance. It cannot be said that the conduct of plaintiff is without any blemish right from the date of execution of Agreement till the filing of suit. In the light of the findings rendered by this Court on the question of readiness and willingness, the plaintiff is not entitled to the relief of specific performance by virtue of section 16[c] of the Specific Relief Act. As held by the Hon'ble Supreme Court in the judgment in Katta Sujatha Vs. 65 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 Fertilizers & Chemicals Tranvancore Ltd and Others reported in 2002 [7] SCC 655, the amendment in the year 2018 is prospective and cannot be applied to the transaction that took place prior to the amendment coming into force.
(46)Section 20 as it was read before amendment, clearly demonstrate that specific performance is a discretionary and equitable relief. Assuming that there exists a valid and concluded contract between the parties, it is necessary for the plaintiff that he was ready and willing to perform his part of the contract from the date of Agreement till the execution of the Sale Deed. Only when the plaintiff says that he had performed his part of the contract or he was ready and willing to perform his part of the contract in conformity with the terms of the contract, the Court will examine whether the plaintiff is entitled to the discretion. In the instant case, this Court has already seen that the plaintiff had demanded the defendants to come with, not only the title deeds, but also few other documents to the Registrar's Office like FMB Sketch etc. The fact that the defendants are the absolute owners of the suit property is never in 66 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 issue and this Court has already seen the evidence of plaintiff that he made enquiries and entered into Agreement after satisfying the title of defendants and this will go a long way to show that the plaintiff has come forward with a clear intention to delay execution under a false pretext. When the plaintiff is exposed by his own conduct, this Court is unable to exercise its discretion. Further, this Court has found that the Trial Court has granted decree for specific performance without considering the admitted facts and the material circumstances to show that the plaintiff was never ready and willing to perform his part of the contract. From the bare facts, the suit Agreement is dated 29.07.2011 and the time given was one month i.e., upto 28.08.2011. From the notice and reply notice, this Court has already held that the plaintiff was satisfied with the title and that there is no encumbrance over the suit property at the time of entering into the agreement. There is no dispute with regard to the extent and the fact that the entire suit property is demarcated with reference to permanent ridges on all four sides. However, the plaintiff's conduct that the defendants should come with original title deeds and other documents 67 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 to the Registrar's office is not the conduct of a prudent purchaser who has agreed to pay the entire balance of sale consideration, namely a sum of Rs.17,71,400/- within one month from the date of agreement. It is only because of the breach committed by the plaintiff, the defendants repudiated the contract. The suit was filed on 11.11.2011. It is stated that the plaintiff has deposited the amount pursuant to the decree for specific performance. However, that will not absolve the plaintiff's obligation to perform his part of the contract strictly in adherence to the terms of the Agreement. In view of the conduct of plaintiff and the fact that the plaintiff has committed breach, this Court is unable to exercise its discretion in favour of plaintiff. Since this Court has already held that the findings of the Trial Court are totally perverse and the issues regarding readiness and willingness have been dealt with in the manner contrary to the principles of law reiterated of Hon'ble Supreme Court in several precedents, the judgment of the Trial Court is liable to be set aside. Hence, Point [C] is answered accordingly and against the 1st respondent/plaintiff.
68 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 POINT [D]:-
(47)Learned counsel for the 1st respondent/plaintiff submitted that the 2nd defendant executed a Sale Deed in favour of the 3rd defendant on 15.09.2011 for a very low consideration and the Sale Deed is a sham transaction, just to defeat the rights of plaintiff to seek specific performance. This Court, of course, agree with the plaintiff regarding the bona fides of the subsequent sale transaction by which the 2nd defendant sold the suit property to his own son, 3rd defendant, for a paltry sum.
Though the conduct of 2nd defendant is also a relevant factor in a suit for specific performance, this Court has already held that the plaintiff is not entitled to the relief of specific performance in view of the personal bar under Section 16[c] of Specific Relief Act. In this case, the conduct of 2nd defendant and the subsequent sale transaction shows that the 3rd defendant is not a bona fide purchaser for value without notice of the Sale Agreement. On the admitted facts, this Court can at best say that the 3rd defendant is not a bona fide purchaser for value to resist the suit for specific performance. However, the subsequent transaction even 69 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 assuming is a collusive or a sham one, the same will not enable the plaintiff to succeed in a suit for specific performance wherein the plaintiff failed to prove his readiness and willingness. As a result, this Court is unable to grant any relief to the 1st respondent/plaintiff even though the subsequent sale deed executed by the 2nd defendant in favour of 3rd defendant is collusive or sham transaction.
(48)Since this Court has held that the Sale Deed executed by the 2nd defendant in favour of his son, 3rd defendant is collusive, a question was raised as to the maintainability of the appeal by defendants 2 and 3. This Court, for this reason posted the appeal 'for clarification' to give an opportunity to the counsels on either side.
(49)This Court on its own, raised a query as regards maintainability of the appeal by defendants 2 and 3 alone. Since the Sale Deed executed by 2 nd defendant as Power of Attorney agent of 1st defendant, in favour of 3rd defendant is held to be sham and inoperative, the locus standi of appellants to question the judgment and decree of the Lower Court granting a decree for specific performance is doubted, especially when 70 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 the 1st defendant, the real owner has not challenged the decree for specific performance.
(50)Learned Senior counsel appearing for the appellants relied upon the judgment of the Hon'ble Supreme Court in the case of B.Vijaya Bharathi Vs. P.Savitri and Others reported in 2018 [11] SCC 761, wherein the Hon'ble Supreme Court has considered the issue whether the plea of readiness and willingness can be raised by subsequent purchasers. The Hon'ble Supreme Court following the judgment in Ram Avadh Vs. Achhaibar Dubey reported in 2000 [2] SCC 428, has held as follows:-
''15.Ram Awadh [Ram Awadh v. Achhaibar Dubey, (2000) 2 SCC 428] is a judgment by three Judges of this Court overruling Jugraj Singh v. Labh Singh [Jugraj Singh v. Labh Singh, (1995) 2 SCC 31] , in which it was held that the plea that the plaintiff is not ready and willing to perform the contract is personal only to the seller defendant. Subsequent purchasers cannot take this plea. This was stated to be an erroneous view of the law by the three-Judge Bench, and the judgment in Jugrag Singh [Jugraj Singh v. Labh Singh, (1995) 2 SCC 31] was set aside 71 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 as follows: (Ram Awadh case [Ram Awadh v. Achhaibar Dubey, (2000) 2 SCC 428] , SCC p. 431, para 6) “6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another.
It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh case [Jugraj Singh v. Labh Singh, (1995) 2 SCC 31] is erroneous.” 72 https://www.mhc.tn.gov.in/judis AS.No.1116/2015
16. In the facts of M.M.S. Investments case [M.M.S. Investments v. V. Veerappan, (2007) 9 SCC 660] , after the trial court decreed the suit, the property was conveyed to the plaintiff. It is only thereafter that the appellants in that case purchased the property. In the facts of the present case, Defendants 2 and 3 purchased the property even before the suit for specific performance was filed. In the present case there is no conveyance in favour of the plaintiff after which Defendants 2 and 3 purchased the property. The ratio of M.M.S. Investments [M.M.S. Investments v. V. Veerappan, (2007) 9 SCC 660] would therefore be of no assistance to the appellant herein. On the other hand, the three-Judge Bench decision in Ram Awadh [Ram Awadh v. Achhaibar Dubey, (2000) 2 SCC 428] would apply on all fours.
17. It must also be noted that though aware of two conveyances of the same property, the plaintiff did not ask for their cancellation. This again, would stand in the way of a decree of specific performance for unless the sale made by Defendant 1 to Defendant 2, and thereafter by Defendant 2 to Defendant 3 are set aside, no decree for specific performance could 73 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 possibly follow. While Mr Rao may be right in stating that mere delay without more would not disentitle his client to the relief of specific performance, for the reasons stated above, we find that this is not such a case. The High Court was clearly right in finding that the bar of Section 16(c) was squarely attracted on the facts of the present case, and that therefore, the fact that Defendants 2 and 3 may not be bona fide purchasers would not come in the way of stating that such suit must be dismissed at the threshold because of lack of readiness and willingness, which is a basic condition for the grant of specific performance.'' (51)In a suit for specific performance, the Court may say that the subsequent alienation after the suit agreement is void or sham and nominal or non- est. However, all these expressions would only to render the sale ineffective as against the plaintiff in the suit for specific performance. The sale by the vendor in favour of a third party may be void as against the plaintiff in a suit for specific performance if the Sale Deed is during the subsistence of the Sale Agreement. However, as between the vendor and the subsequent purchaser the sale will be valid and binding on the 74 https://www.mhc.tn.gov.in/judis AS.No.1116/2015 parties to the Sale Deed. In that view of the matter, this Court is unable to dismiss the appeal merely because the 1st defendant/vendor who is the original owner of the property, has not questioned the decree for specific performance. Hence, Point [D] is answered accordingly. (52)For the foregoing reasons and the conclusions reached, this Court has no hesitation to hold that the judgment and decree of the Trial Court is liable to be set aside.
(53)Accordingly, the Appeal Suit stands allowed and the judgment and decree dated 30.04.2015 passed in OS.No.648/2011 by the learned I Additional District Judge, Coimbatore, is set aside. No costs.
[SSSRJ] [CKJ]
13.07.2023
AP
Internet : Yes
Index : Yes/ No
To
1.The I Additional District Judge
Coimbatore.
2.The Section Officer
VR Section, High Court
Madras.
75
https://www.mhc.tn.gov.in/judis
AS.No.1116/2015
S.S.SUNDAR, J.,
and
C.KUMARAPPAN, J.,
AP
Judgment in
AS.No.1116/2015
13.07.2023
76
https://www.mhc.tn.gov.in/judis