Madras High Court
Y.Jesu vs S.Velayutham on 31 August, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 31.8.2012 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.206 of 2004 Y.Jesu ... Appellant vs. 1.S.Velayutham 2.Churchh of Christ Charitable Trust, (Presently known as Education and Charitable Society), rep.by its Chairman Denish H.Johnson ... Respondents Appeal against the judgement and decree dated 4.2.2002 passed by the VII Additional City Civil Judge, in O.S.No.8143 of 1997. For appellant :: Mr.S.Francis Ashok For Respondents :: Mr.Sanjeev Kumar for Mr.B.S.Gnanadesikan for R1 Mr.Sathish Parasaran for R2 JUDGEMENT
This appeal is focussed by the plaintiff in the suit as against the judgement and decree dated 4.2.2002 passed by the VII Additional City Civil Judge, in O.S.No.8143 of 1997, which was one for specific performance of an agreement to sell.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of these appeals, in a few broad strokes can be encapsulated thus:
(i) The appellant herein/plaintiff filed the suit O.S.No.8143 of 1997 seeking specific performance, with the following reliefs:
"to pass a judgement and decree for a specific performance
1. Directing the 1st defendant to execute and register the sale deed in favour of the plaintiff or his nominee/s in respect of the scheduled mentioned property morefully described in the schedule annexed with the plaint after complying with all the statutory requirements on the part of the 1st defendant.
2.For permanent injunction restraining the defendant or his servant/s or agent/s or any other person/s claiming through or under him from in any manner dealing with the schedule mentioned property other than the plaintiff.
3. To pay the cost of the suit."
(extracted as such) on the main ground that there emerged the suit agreement to sell Ex.A1 dated 26.10.1990 between the plaintiff and Velayutham/D1-the Power of Attorney of D2 in respect of the suit property; an advance amount of Rs.3,00,000/- out of the total sale consideration of 9,50,000/- was paid under the said agreement to sell by the plaintiff to D1 and the time stipulated for performance of contract, was five months.
(ii) According to the plaintiff, even though he was ready and willing to perform his part of the contract, D1 was not ready and willing to perform his part of the contract.
Accordingly the plaintiff would pray for ordering specific performance of the agreement to sell.
(iii) Per contra, D1 filed the written statement, which was adopted by D2 by filing memo. The gist and kernel of the written statement was that the suit was barred by limitation and the plaintiff was not ready and willing to perform his part of the contract. Accordingly, the defendants would pray for the dismissal of the suit.
(iv) Whereupon, the trial Court framed the issues.
(v) During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A9 were marked. The defendant examined himself as D.W.1, however, no document was marked on his side.
(vi) Ultimately, the trial Court dismissed the suit.
4. Being aggrieved by and dissatisfied with the said judgement and decree of the trial Court, this appeal has been focussed by the plaintiff on various grounds.
5. The learned counsel for the appellant herein/plaintiff, by placing reliance on the grounds of appeal would develop his arguements which could tersely and briefly be set out thus:
(i) The said Velayutham/D1 had to face a criminal case; at that time he filed an application for anticipatory bail and in that connection he filed a rejoinder-Ex.A4, in which he referred to this suit agreement to sell and that itself would indicate and exemplify that the suit agreement was acknowledged by him to be a valid and subsisting one. Hence, the filing of the suit during the year 1997 cannot be termed as one barred by limitation.
(ii) The plaintiff has been ready and willing to perform his part of the contract, but the lower Court simply rejected his prayer for specific performance.
(iii) The conduct of Velayutham/D1/D.W.1 was not taken into consideration, as he was in the habit of indulging in such sort of entering into agreements to sell and thereafter resiling from the same.
Accordingly, the learned counsel would pray for setting aside the judgement and decree of the trial Court and for decreeing the suit for specific performance.
6. Heard the learned counsel for the first respondent, who would put forth and set forth his arguements, which could succinctly and precisely be set out thus:
(i) The suit was barred by limitation. The agreement to sell emerged on 26.10.1990 stipulating five months' time for performance, however, the suit was filed in the year 1997, which would connote and denote, display and demonstrate, convey and portray that obviously and axiomatically the suit was barred by limitation, but without adhering to the said fact, simply the plaintiff filed the suit, which was untenable. In fact, the suit ought not have been numbered even.
(ii) There is no shard or shred, molecular or jot extent of evidence to establish and prove show that the plaintiff was ready and willing to perform his part of the contract and hence, the lower Court appropriately and appositely considered the evidence and dismissed the suit, warranting no interference in appeal.
7. The points for consideration are as under:
(1) Whether the suit was barred by limitation and whether in the absence of a specific issue having been framed by the trial Court, whether it was justified in holding that the suit was barred by limitation?
(2) Whether there is evidence to demonstrate and indicate that the plaintiff was ready and willing to perform his part of the contract throughout and whether the conduct of the plaintiff could be termed as one not falling foul of the mandates as found envisaged in Sections 16 and 20 of the Specific Relief Act?
(3) Whether there is any perversity or illegality in the judgement and decree passed by the trial Court?
8. Point No.(1): Indubitably and indisputably, unarguably and unassailably Ex.A1-the agreement to sell emerged on 26.10.1990 stipulating five months as the period for performance. However, only telegraphic notice as found envisaged in Ex.A6 was issued by the plaintiff just before the filing of the suit in the year 1997.
9. Article 54 of the Limitation Act is extracted hereunder for ready reference:
"54. For specific performance of a contract. Three years. The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused."
10. It is therefore clear that at the most the plaintiff had only three years and five months' period from the date of emergence of the agreement to sell dated 26.10.1990 to file the suit for specific performance; whereas, the plaint was presented on 19.11.1997, obviously long after the expiry of three years and five months period. In such a case, the lower Court was justified in holding that the suit was barred by limitation.
11. In this connection I would like to fumigate my mind with the following decisions of the Honourable Apex Court as well as the other Courts.
(i) (2006) 2 SUPREME COURT CASES 428 R.K.PARVATHARAJ GUPTA V. K.C.JAYADEVA REDDY, certain excerpts from it would run thus:
"9. Article 54 of the Limitation Act reads thus:
"54. For specific performance of a contract. Three years. The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused."
10. In terms of the said article, a suit for specific performance of a contract is required to be filed within three years; in the event no date is fixed for the performance, within a period of three years from the date when the plaintiff has notice that performance is refused. The notice dated 24.4.1984, thus, is required to be construed in the context of the agreement dated 13.10.1982 entered into by an between the parties.
(ii) AIR 2006 SUPREME COURT 1556 GUNWANTBHAI MULCHAND SHAH AND OTHERS V. ANTON ELIS FAREL AND OTHERS=(2006) 3 SCC 634, certain excerpts from it would run thus:
"8. We may straightaway say that the manner in which the question of limitation has been dealt with by the courts below is highly unsatisfactory. It was rightly noticed that the suit was governed by Article 54 of the Limitation Act, 1963. Then, the enquiry should have been, first, whether any time was fixed for performance in the agreement for sale, and if it was so fixed, to hold that a suit filed beyond three years of the date was barred by limitation unless any case of extension was pleaded and established. But in a case where no time for performance was fixed, the court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof. We have explained the position in the recent decision in R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy1. In the case on hand, there is no dispute that no date for performance is fixed in the agreement and if so, the suit could be held to be barred by limitation only on a finding that the plaintiffs had notice that the defendants were refusing performance of the agreement. In a case of that nature normally, the question of limitation could be decided only after taking evidence and recording a finding as to the date on which the plaintiff had such notice. We are not unmindful of the fact that a statement appears to have been filed on behalf of the plaintiffs that they did not want to lead any evidence. The defendants, of course, took the stand that they also did not want to lead any evidence. As we see it, the trial court should have insisted on the parties leading evidence on this question or the court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial.
9. It is seen that the suit was dismissed by the trial court on the finding that the claim for the relief of specific performance was barred by limitation. The plaint contains not only a prayer for specific performance but also a prayer for perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs and from creating any documents or entering into any transaction in respect of the suit property. Of course, the latter part of that prayer is directly linked to the claim for specific performance, but the suit as regards the prayer for perpetual injunction to protect the possession of the plaintiff over the suit property on the claim that the predecessor of the plaintiffs was put in possession of the property pursuant to the agreement for sale, on a subsequent date, could not have been held to be not maintainable on any ground. Of course, the grant of the relief of injunction in a sense is discretionary and the court ultimately might or might not have granted the relief to the plaintiffs. The defendants could have also shown that the relief of injunction claimed is merely consequential to the relief of specific performance and was not an independent relief. But that is different from saying that the suit could be dismissed merely on a finding that the prayer for specific performance of the agreement was barred by limitation. In any event, therefore, the dismissal of the suit as a whole as not maintainable, could not be justified or said to be correct.
11. The reliance placed on Section 46 of the Contract Act by learned counsel for the defendants would also be an aspect that has to be considered when finally deciding whether the suit could be held to be in time and whether in a suit filed 29 years after the agreement for sale, any relief could be granted to the plaintiffs. The applicability of Section 46 of the Contract Act, and if applicable, what is the reasonable time, in this case has to be determined. The aspect of delay will have relevance while considering whether the plaintiffs would be entitled to the discretionary relief of specific performance, even if they satisfy the other requirements of the Specific Relief Act. But those aspects can be decided only after taking evidence in the case and giving the plaintiffs an opportunity to show that they had always been and they were ready and willing to perform their part of the contract and to show that they had paid the entire consideration and had been put in possession of the property, and nothing further remained for them to perform and all that remained was the execution of the sale deed in their favour and their failure to sue earlier did not disentitle them to the relief of specific performance either on the ground that the suit was barred by limitation or on the ground of delay and laches on their part or on the ground that the discretion of the court in terms of Section 20 of the Specific Relief Act was not liable to be exercised in their favour in the circumstances of the case. All these pleas available to the plaintiffs cannot enable the dismissal of the suit as barred by limitation under Article 54 of the Limitation Act, as things now stand.
15. In such a situation, especially when the whole matter requires reconsideration, we do not think it proper to go into the various arguments urged by the learned Senior Counsel appearing in this case. We think that all those arguments require to be kept alive for decision in the suit after a trial. Suffice it to say that we consider that the interests of justice would be subserved by setting aside the finding by the courts below that the suit is barred by limitation, even while upholding the finding that the trial court had the jurisdiction to try the suit and remand the suit to the trial court for a decision of all the issues arising therein, including the issue of limitation, in accordance with law after giving the parties an opportunity to adduce evidence in support of their respective cases."
(iii) 2009(5) SCC 462 AHMADSAHAB ABDUL MULLA (2) (DEAD) BY PROPOSED LRS.VS.BABIJAN AND OTHERS, certain excerpts from it would run thus:
"3. In S. Brahmanand v. K.R. Muthugopal2 a Bench of this Court did not go into this issue. It decided the appeal on the factual scenario applicable. It was however noticed that several High Courts have dealt with the matter differently. In all these cases, for example, in Kashi Prasad v. Chhabi Lal3, Alopi Parshad v. Court of Wards4, Lala Ram Sarup v. Court of Wards5, Kruttiventi Mallikharjuna Rao v. Vemuri Pardhasaradhirao6, R. Muniswami Goundar v. B.M. Shamanna Gouda7, Hutchegowda v. H.M. Basaviah8, Purshottam Sava v. Kunverji Devji9, Lakshminarayana Reddiar v. Singaravelu Naicker10, Shrikrishna Keshav Kulkarni v. Balaji Ganesh Kulkarni11 and P. Sivan Muthiah v. John Sathiavasagam12, the High Courts had decided the issue in the background of Article 113 of the Limitation Act, 1908 (hereinafter referred to as the old Act). Article 113 of the old Act is in pari materia with Article 54 of the Schedule to the Act."
(iv) 2007(15) SCC 174 JANARDHANAM PRASAD V. RAMDAS, certain excerpts from it would run thus:
"12. The court, in applying the period of limitation, would first inquire as to whether any time was fixed for performance of agreement of sale. If it is so fixed, the suit must be filed within the period of three years, failing which the same would be barred by limitation. Here, however, no time for performance was fixed. It was for the courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter.
(v) 1999(8) SCC 587 SHAKUNTALA (SMT V. NARAYAN GUNDOJI CHAVAN AND OTHERS, certain excerpts from it would run thus:
"8. We, however, find on a perusal of the plaint, the said amount of Rs 1000 as mentioned by the High Court was not paid by the plaintiff to the defendant subsequent to the notice dated 17-6-1977. In fact the averment in the plaint itself shows at para 5 that the plaintiff was ready and willing to perform his part of compromise and to pay Rs 1000 in advance at the time of making application to the Deputy Commissioner, Belgaum. The above statement in the aforesaid paragraph of the plaint is a clear indication that no such amount of Rs 1000 was paid nor received by the defendant subsequent to notice dated 17-6-1977.
9. If that be the case the limitation necessarily started from 17-6-1977, the date of refusal to perform his part of the contract and the suit was barred by time. The High Court was in error in taking a contrary view and in setting aside the judgments of the lower courts. The judgment of the High Court is set aside and the judgment of the trial court as affirmed by the first appellate court, is restored.
(vi) AIR 2004 MAD 8 SURYGANDHI V. LOURDUSWAMY;
(vii) 1997(10) SCC 66 VENKAPPA GURAPPA HOSUR V. KASAWWA C/O.RANGAPPA KULGOD;
(viii) AIR 2004 KAR.442 H.M.KRISHNA REDDY V. H.C.NARAYANA REDDY
(ix) AIR 1999 RAJ 167 RAM KARAN AND OTHERS V. GOVIND LAL AND ANOTHER
12. I would like to suo moto refer to the following one other decision of the Honourable Apex Court:
(1973)2 SUPREME COURT CASES 705 - RAJENDER SINGH AND OTHERS V. SANTA SINGH AND OTHERS, certain excerpts from it would run thus:
"11. . . . . . . . . . Indeed, it is the duty of the Court, in view of Section 3 of the Limitation Act, to apply the bar of limitation where, on patent facts, it is applicable even though not specifically pleaded. Therefore, we find no force in the submissions based on the supposed inapplicability of Article 142 of the Limitation Act of 1908 or assumed defects in procedure adopted in applying it."
13. A mere running of the eye over those precedents would convey and portray that the limitation point is concerned, the Court itself is expected to suo moto apply its mind on it and give a finding. In such a case, even though there is no specific issue on that limitation point, despite the defendant raised the limitation point in the written statement and yet the Court decided it, I could see no perversity or illegality in the said finding. Based on the indubitable and unassailable factual evidence the lower Court decided that the suit was barred by limitation.
14. The learned counsel, by way of salvaging the case of his client and by way of waging a lost ditch battle would try to press into service Ex.A4- the rejoinder dated 5.11.1997 to show that there was admission of the agreement to sell-Ex.A1 by the first defendant, in the anticipatory bail application filed in a case initiated by a third party.
15. I would like to point out that Section 18 of the Limitation Act cannot be pressed into service for the obvious reason that such rejoinder by no stretch of imagination could be taken as acknowledgement or extension of the agreement to sell. Over and above that after the expiry of the period of three years and five months, such rejoinder was filed. As such, viewing the case from any angle, there is no denying or gainsaying that the suit was barred by limitation. Scarcely could it be stated that the suit is within limitation. Accordingly, Point (1) is decided against the plaintiff that the suit was barred by limitation.
16. Points (2) & (3): The lower Court, taking into account the pros and cons of the matter and discussing the evidence held that absolutely there was no pint or smidgeon of evidence to demonstrate and display that the plaintiff expressed his readiness and willingness to perform his part of the contract.
17. The perusal of the exhibits would clearly exemplify and establish that the plaintiff was virtually dormant during the period of three years and five months, so to say during the entire limitation period and in such a case, he cannot be heard to contend that his act and conduct would not fall foul of Sections 16 as well as 20 of the Specific Relief Act.
18. In this connection, I would like to fumigate my mind with the following decisions of the Honourable Apex Court.
(i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. Hartar Singh Sangha]; certain excerpts from it would run thus:
"40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations."
(ii) (2011) 1 SUPREME COURT CASES 429 J.P.BUILDERS AND ANOTHER V. A.RAMADAS RAO AND ANOTHER would run thus:
"27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
(iii) 2001(6) SCC 600 A.C.ARULAPPAN V. AHALYA NAIK, certain excerpts from it would run thus:
"9. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son2 this Court cautioned and observed as under: (SCC p. 345, para 14) 14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.
10. In Lourdu Mari David v. Louis Chinnaya Arogiaswamy3 the plaintiff, who sought for specific performance of an agreement to purchase immoveable property, filed a suit with incorrect and false facts. In the plaint, it was alleged that the plaintiff was already given possession of Door No. 2/53 as a lessee and he was given possession of Door No. 1/53 on the date of the agreement itself. But he did not give any evidence that he had got possession of Door No. 1/53 on the date of the agreement. It was found that his case as regards Door No. 1/53 was false. He also alleged that he had paid Rs 400 in addition to the sum of Rs 4000 paid as advance, but this was proved to be an incorrect statement. He alleged that the third defendant had inspected the house during the course of negotiations, but this also was found to be false. This Court held that it is settled law that the party who seeks to avail of the jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words, the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief.
11. In Gobind Ram v. Gian Chand4 it was observed in para 7 of the judgment that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it would be fair, just and equitable. The court is guided by the principles of justice, equity and good conscience.
15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court. The trial court, which had the added advantage of recording the evidence and seeing the demeanour of the witnesses, considered the relevant facts and reached a conclusion. The appellate court should not have reversed that decision disregarding these facts and, in our view, the appellate court seriously flawed in its decision. Therefore, we hold that the respondent is not entitled to a decree of specific performance of the contract."
(iv) 1987 SCC (SUPP) 340 PARAKUNNAN VETTILL JOSEPH'S SON MATHEW V. NEDUMBARA KURUVILLA'S SON AND OTHERS, certain excerpts from it would run thus:
"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex.A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance.
(v) 2007-2-L.W.481 [M.Meenakshi & Others v. Metadin Agarwal (D) By LRs & others] "39. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the Courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction should be exercised or not, the orders of a competent authority must also be taken into consideration. While the court upon passing a decree for specific performance of contract is entitled to direct that the same shall be subject to the grant of sanction by the concerned authority, as was the case in Mrs.Chandnee Vidya Vati Madden v. Dr.C.L.Katial and Others [AIR 1964 SC 978] and Nirmal Anand v. Advent Corporation (P) Ltd. And Others [(2002) 5 SCC 481]; the ratio laid down therein cannot be extended to a case where prayer for such sanction had been prayed for and expressly rejected. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted."
(Emphasis supplied)
(vi) 2007-4-L.W.36 [Janardhanam Prasad v. Ramdas] "11. The Court, in applying the period of limitation, would first inquire as to whether any time was fixed for performance of agreement of sale. If it is so fixed, the suit must be filed within the period of three years, failing which the same would be barred by limitation. Here, however, no time for performance was fixed. It was for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter.
14. ...Even if the suit was not barred by limitation on that account, it was a fit case, where the Court should have refused to exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963.
17. ...In that view of the matter too, in our opinion, it was a fit case where the discretionary jurisdiction of the Court under Section 20 of the Specific Relief Act should not have been exercised and, instead, monetary compensation could be granted."
(Emphasis supplied)
(vii) 2007 (1) CTC 57 [A.Ganapathy v. S.Venkatesan] "19. In a case of specific performance of a contract, in the judgment reported in Smt.Mayawanti v. Smt.Kaushalya Devi JT 1990 (3) SC 205, the Supreme Court has held as under in paragraphs 8 and 11:
8. ......
"11. .... It is settled law that if a contract is to be made, the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer. The rule is that the acceptance must be absolute, and must correspond with the terms of the offer. If the two minds were not ad idem in respect of the property to be sold, there cannot be said to have been a contract for specific performance. If the parties themselves were not ad idem as to the subject matter of the contract the Court cannot order specific performance...."
(viii) 2003(1) CTC 355 [Arunachala Mudaliar v. Jayalakshmi Ammal and another] "25. ...The plaintiff has not deposited the amount that she should have deposited as per Ex.A7 before filing the suit for specific performance. The defendant had raised the plea that the deposit was not made and it would show the plaintiff's lack of bona fides. In spite of that the plaintiff not only does not deposit the amount before filing the suit, but P.W.1, the plaintiff's husband glibly says in his evidence that he has deposited the amount. The plaint does not even refer to any readiness or willingness to deposit and the suit notice claimed to have been issued has not been proved to have been issued. In the particular circumstance of the case and in view of the specific recitals regarding the deposit the plaintiff cannot be content with citing the explanation to Section 16(c) of the Act without proving his readiness and willingness clearly and beyond doubt." (Emphasis supplied)
(ix) (2008) 6 MLJ 587 [Periyaya v. M.Rajagopal and another] "18. In P.V.Joseph's Son Mathew v. N.Kuruvila's Son AIR 1987 SC 2328 : 1987 Supp SCC 340, the Apex Court considered the scope and ambit of Section 20 of the Specific Relief Act and observed thus:
"Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppressions to have an unfair advantage to the plaintiff."
(Emphasis supplied)
(x) (2008) 6 MLJ 539 [A.Gunasekaran v. K.Damayanthi]
38. .. The decision in K.S.Vidyanandam v. Vairavan, J.T.1997(2) SC 375 is clearly applicable. Specific performance cannot be ordered merely because they are filed within the period of limitation, especially where time limits have been stipulated in the agreement for performance of certain obligations. To disregard the time stipulation would amount to ignoring the understanding between the parties as though it is of no significance or value." (Emphasis supplied)
(xi) 2008(2) CTC 382 [P.Sampoornam and others v. L.T.Somasundaram and others] "19. ... The relief of specific performance is a discretionary relief and the Courts have to exercise their discretion on sound and reasonable reasons. Even if a doubt arises whether it is probable or possible that an agreement of sale would have been executed at all, the discretionary relief shall not be granted. By analysing the matter in issue as referred to above, I am of the opinion that it is doubtful that the defendants would have executed an agreement of sale with an intention to sell the suit property. Further more, there is no reason for execution of Ex.A11 endorsement since it has not been proved that there was a lessee in the suit property. Further more, after the endorsement dated 30.12.1990, the plaintiffs would not have waited till the issuance of notice under Ex.A.2 dated 13.07.1996. The silence for nearly six years by the plaintiffs causes much doubt whether there was a real agreement of sale between the plaintiffs and the defendants. Merely because the defendants have accepted their signatures in the endorsement under Ex.A.11, conclusion could not be reached that the defendants have entered into an agreement of sale with an intention to sell the suit property."
(xii) 2007(1) CTC 243 [G.Ramalingam v. T.Vijayarangam] "16. ... Even if for a single day, plaintiff-agreement holder is not ready to take the sale deed, the equitable remedy should not be granted. Readiness and willingness must be there continuously from the date of agreement up to the date of hearing. In this case, the concurrent finding is that the appellant was not ready to take the sale deed and that is proved by Ex.A-3" (Emphasis supplied)
(xiii) 2007 (2) L.W.791 [1. Chinnakannu Naidu 2. Saroja v. Chinnappan] "16. In Sandhyarani v. Sudha Rani, AIR 1978 S.C. 537, it is laid down "Where there is inordinate delay on the part of the plaintiff to perform his or her part of contract a decree for specific performance can be refused."
(ivx) (2006) 2 M.L.J.651 [Yesudass (died) and others v. Henry Victor and others] "15. The factum of readiness and willingness to perform part of the contract is to be adjudged with reference to the conduct of the parties and the attending circumstance. The court must infer from the facts and circumstance whether the plaintiff and third defendant were always ready and willing to perform their part of the contract. The facts of this case would amply demonstrate that the plaintiff and third defendant were not ready nor had the capacity to perform their part of the contract as they have no financial capability to pay the consideration in cash as contracted and intended to bite for the time, which disentitles them as time is the essence of the contract. Continuous readiness and willingness at all stages from the date of agreements till the date of hearing of the suit must be proved." (Emphasis supplied)
(xv) 2008(1) CTC 86 [Sita Ram and others vs. Radhey Shyam] "6. .....He had in that Suit to allege, and if the act was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brings with it and leads to the inevitable dismissal of the Suit."
(Emphasis supplied) (xvi) 2006(4) MLJ 1348 [V.Kanniammal and others v. Anjalakshmiammal (Died) and others] "28. ..... Therefore, the readiness and willingness pleaded and the attempt made to prove the payment of balance of sale consideration, through P.W.3, fails to satisfy the conscience of the Court and in this view, it should be held that there was slackness on the part of the plaintiff to perform her part of the contract and such being the position, even assuming that there was some contract, the same could not be enforced."
19. I plain reading of those precedents would disclose and shed light on the point that in cases of this nature, granting specific performance would be a well neigh impossibility.
20. Accordingly, the points are decided as under:
Point No.(i) is decided to the effect that even though a specific issue having not been framed by the trial Court, it was justified in holding that the suit was barred by limitation.
Point No.(ii) is decided to the effect that there is no evidence to indicate that the plaintiff was ready and willing to perform his part of the contract throughout.
21. Absolutely there is nothing to show that the plaintiff ever raised his little finger towards performing his part of the contract. In such a case, I could see no perversity or illegality in the judgement and decree passed by the trial Court.
22. Accordingly, this appeal is dismissed confirming the judgement and decree of the trial Court. However, there is no order as to costs.
Msk 31.8.2012
Index:Yes
Internet:Yes
To
The VII Additional City Civil Judge.
G.RAJASURIA, J
msk
A.S.No.206 of 2004
31.8.2012