Madras High Court
Gana.Kannappan vs G.Mohanlal Patel on 25 April, 2025
Author: N.Senthil Kumar
Bench: N.Senthil Kumar
A.S.(MD)No.234 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 30.01.2025
PRONOUNCED ON : 25.04.2025
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE N.SENTHIL KUMAR
A.S.(MD)No.234 of 2015
and
M.P.(MD)No.1 of 2015
Gana.Kannappan .. Appellant
-Vs-
1.G.Mohanlal Patel
2.G.Nathuram Patel ..Respondents
Prayer: Appeal Suit filed under Section 96 of the Civil Procedure
Code, 1908, against the judgment and decree dated 31.07.2015 made in
O.S.No.15 of 2008, on the file of the VI Additional District and Sessions
Court, Madurai.
For Appellant : Mr.S.Meenakshi Sundaram,
Senior Counsel
for Mr.V.Karthikeyan
For Respondents : Mr.T.K.Gopalan
**********
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A.S.(MD)No.234 of 2015
JUDGMENT
[Judgment of the Court was made by RMT.TEEKAA RAMAN, J.] The unsuccessful defendant in the suit is the appellant in the present appeal.
2. The respondents/defendants filed the suit seeking the relief of specific performance based on the sale agreement marked as Ex.A4, dated 30.08.2007. After the trial, the suit was decreed in their favor, leading to the present appeal.
3. The title of the appellant/defendant to the suit property is not disputed by the respondents.
4. As per the pleadings, the respondents/plaintiffs filed the above suit alleging that the first plaintiff entered into a lease agreement on 29.08.2003 through two separate documents, marked as Exs.A1 and A2. Under the lease, the defendants received a sum of Rs.7,00,000/- as advance, and the agreed monthly rent was Rs.9,000/-. It was further pleaded that the defendants subsequently offered to sell the property for a total consideration of Rs.45,01,000/-. According to the plaintiffs, a sale agreement was entered into on 10.04.2007, marked as Ex.A3 (only a xerox copy has been filed, subject to objection). On the same day, the defendants received a sum of Rs.22,00,000/- as advance, which included the earlier sum of Rs.7,00,000/- paid under the lease agreement. 2/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015
5. Besides the plaintiff, two other individuals were also tenants. It was further pleaded that a post-dated cheque for a sum of Rs. 3,20,000/-, dated 15.09.2007, was issued, and the balance sale consideration was Rs.31,73,000/
6. It should be noted that the initial suit appears to have been based on Ex.A3, a xerox copy of the sale deed dated 10.04.2007. Subsequently, the plaint was re-presented with a prayer for the inclusion of Ex.A4.
7(a). As per the decree of the lower court, the plaint was presented on 04.02.2008. The value of the suit is stated to be Rs. 45,01,000/-, which represents the sale consideration fixed in Ex.A3, and a court fee of Rs.3,37,575.50/- was paid based on the sale consideration mentioned in the xerox copy of the sale deed (Ex.A3). However, the prayer is for the specific performance of the sale agreement in Ex.A4, dated 30.08.2007, which is discussed further below. (b) Subsequently, the plaint proceeds on the basis that the suit sale agreement, Ex.A4, was entered into on 30.08.2007, for a sale consideration of Rs.1,648,000/- and the original agreement dated 10.04.2007 (Ex.A3) – a xerox copy – was only provided with a cross marked on it. The admissibility of Ex.A3 will be discussed infra.
8. There is a plea that possession was handed over to him 3/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 pursuant to the Ex.A4 agreement. Additionally, readiness and willingness have been pleaded, and the plaintiff has sought specific performance of the suit sale agreement, Ex.A4, after receiving the balance sale consideration of Rs.13,28,000/
9. A written statement has been filed by the defendants. In their written statement, the defendants have categorically denied Ex.A3 and further stated that the plaintiff, being only a tenant, was not handed possession pursuant to the sale agreement. They also stated that eviction proceedings were initiated due to a default in the payment of rent, and the defendants/landlord filed eviction proceedings in R.C.O.P. No. 22 of 2008.
10. As per the pleadings in the written statement, the plaintiff admitted that, under Ex.A4, he offered to sell the scheduled property for a sale consideration of Rs.16,48,000/- and received an advance of Rs.3,20,000/-. An agreement dated 03.08.2007 was entered into between the parties. The plaintiff denied that Ex.A3 is a valid document, describing it as a fabricated one. The plea of readiness and willingness on the part of the plaintiff was also specifically denied. Since the date fixed for the completion of the suit sale agreement had passed, the defendant issued a termination notice under Ex.A5. In response, the plaintiff sent a reply notice (Ex.A6) to the defendant, to which the 4/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 defendant issued a rejoinder notice on 01.01.2008, marked as Ex.A7.
11. It is the specific case of the defendants that, as per the terms of the agreement, the balance sale consideration of Rs.13,28,000/- was to be paid within a period of two months from the date of the agreement. The plaintiff, having failed to come forward and execute the sale deed within the stipulated time, did not perform his part of the contract as agreed upon on or before 30.08.2007. As the agreement itself was cancelled under Ex.A5, the defendants contend that the suit for specific performance is not maintainable and have prayed for the dismissal of the suit.
12. Based on the above pleadings, the trial court formulated the following four issues :-
(i) Whether the plaintiff is entitled to specific performance as prayed for?
(ii) Whether the plaintiff is ready and willing to perform their part of the contract?
(iii) Whether the said sale agreement has been cancelled as mentioned in the written statement?
(iv) To what other relief is the plaintiff entitled?
13.During the trial, on the side of the plaintiff, the first plaintiff was examined as P.W.1. The person engaged in the negotiations was examined as P.W.2, and P.W.3 were also examined. Exhibits A1 to 5/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 A19 were marked. On the side of the defendants, the first defendant was examined as D.W.1, and Exhibits B1 to B4 were marked.
14. The pendency of the Rent Control Proceedings in R.C.O.P. was not disputed by the plaintiff. Ex.B4 is a copy of the counter statement filed by the plaintiff in R.C.O.P. No. 22 of 2008 before the Principal District Munsif Court, Madurai. P.W.2 is one of the attestors of Ex.A3, the sale agreement..
15. The lower court records have been perused. Ex.A3 is the only xerox copy of the document. The suit has been filed for the relief based on Ex.A4, the suit sale agreement dated 30.08.2007.
16. In the cross-examination, P.W.1 admitted that the suit was filed solely for the said relief. Therefore, the trial court rightly concluded that determining the admissibility of Ex.A3 is a futile exercise, as the suit is based on Ex.A4.
17. We have perused Ex.A4. Ex.A4 is a suit sale agreement entered into between the parties on 30.08.2007, with a sale consideration of Rs.16,48,000/-. On the date of the agreement, the defendant accepted Rs.3,20,000/-, and the balance sale consideration of Rs.1,328,000/- was to be paid within two months from the date of execution, i.e., by 30.10.2007.
18. In paragraph 3 of the written statement, the defendant 6/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 admitted the execution of the Ex.A4 suit sale agreement dated 30.08.2007 and the terms of the agreement. Ex.A5 is the pre-suit notice issued by the defendant, terminating the above-mentioned Ex.A4 sale agreement and forfeiting the sale consideration. Ex.A6 is the reply notice issued by the plaintiff to the defendant..
19. The trial court has rendered a finding that Ex.A5, the legal notice, is a unilateral cancellation and is not binding upon the plaintiff, and accordingly, the suit was decreed.
20. The point for consideration is that:-
(i) Whether the plaintiff's failure to seek the relief of declaration for the cancellation of the agreement is fatal to the plaintiff's case and disentitles them from seeking the relief of specific performance of the suit sale agreement?
(ii) Whether the respondents/plaintiffs are ready and willing to perform their part of the contract?
(iii) Whether Ex.A4 is legally valid, enforceable, and still in effect?
(iv) Whether the order of the trial court is sustainable in law?
21. Heard Mr. S. Meenakshi Sundaram, learned Senior Counsel for the appellant, and Mr. T.K. Gopalan, learned counsel for the respondents.
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22. The factual position is summarized as follows: :-
The suit is filed for specific performance of Ex.A4, the sale deed dated 30.08.2007, with a sale consideration of Rs.16,48,000/- and an advance of Rs.320,000/-. The period for payment was set for two months, i.e., by 30.10.2007. On 10.04.2007, Ex.A4 agreement was entered into. On 18.12.2007, Ex.A5 terminated the agreement. The suit was filed on 04.02.2008 as per the decree. Judgment was delivered on 31.07.2015. The balance of the sale consideration was deposited on 04.09.2013.
23. We propose to consider the legal issue on that point..
24. Both Senior Advocates appearing for the respective parties have referred to various judgments.
25. As to the maintainability of the suit for specific performance of the sale agreement when the agreement itself has been terminated, whether the plaintiff's failure to seek the relief of declaration to declare the termination of the sale agreement as arbitrary will disentitle the plaintiff is a point for consideration. This issue is no longer res integra.
26. In 2025 INSC 450, in the judgment of C.A. No. 4972 of 2025 [Sangita Sinha vs. Bhawana Bhardwaj and others], the Supreme Court held that:
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25. In I.S.Sikandar (Dead) By Lrs.
v.K.Subramani and others, (2013) 15 SCC 27 has held that in absence ot a prayer for a declaratory relief that the termination of the agreement is bad in law, the suit for specific performance of that agreement is not maintainable. Though subsequently, this Court in A.Kanthamani Vs. Nasreen Ahmed, (2017) 4 SCC 654 has held that the declaration of law in I.S.Sikander (Dead) By Lrs. v.K.Subramani (supra) regarding non- maintainability of the suit in the absence of a challenge to letter of termination is confined to the facts of the said case, yet the aforesaid issue has been recently considered in R.Kandasamy (Since Dead) & Ors. v. T.R.K.Saraswathy & Anr. (supra) authored by brother Justice Dipankar Datta and the conflict between the judgment of I.S.Sikander (Dead) by Lrs.v.K.Subramani (supra) and A.Kanthamani Vs.Nasreen Ahmed (supra) has been deliberated upon. In R.Kandasamy (since dead) & Ors. v. T.R.K.Saraswathy & Anr.(supra), it has been clarified that the appellate court would not be precluded from examining whether the jurisdictional fact exists for grant of relief of specific performance, notwithstanding the fact that the trial Court omitted or failed to frame an issue on maintainability of the suit.
26. Since in the present case, the seller had issued a letter dated 07th February, 2008 cancelling the agreement to sell prior to the institution of the suit, the same constitutes a jurisdictional fact as till the said 9/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 cancellation is set aside, the respondent is not entitled to the relief of specific performance.
27. Consequently, this Court is of the opinion that, in the absence of a prayer for declaratory relief stating that the termination or cancellation of the agreement is bad in law, a suit for specific performance is not maintainable.
27. Accordingly, we hold that, in view of the judgment of the Hon'ble Supreme Court in the aforementioned Sangita Sinha's case, which clarified the legal position regarding the judgment in Kanthamani's case, we have no hesitation in holding that, in the absence of a prayer for declaratory relief stating that the cancellation of the agreement is bad in law, the suit for specific performance is not maintainable.
28. With regard to the factual position, we have called for the lower court records and have also perused the plaint copy. We find that there is no prayer seeking a declaration that Ex.A5 legal notice dated 18.02.2007 is bad in law. Hence, the suit is not maintainable on legal grounds.
29. Coming to the factual position, we have observed that the appellant/defendant raised a specific plea in the written statement, contending that the suit is not maintainable due to the absence of a prayer 10/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 for declaration. The trial court rightly framed Issue No. III—whether the suit sale agreement had been cancelled as mentioned in the written statement. However, it erroneously concluded that the unilateral cancellation of the sale agreement was bad in law and further stated that the defendant had not issued any prior notice before the cancellation.
30. We are reminded of Section 39 of the Indian Contract Act, which empowers a party to a contract to rescind the agreement in certain circumstances. The defendant had a right to terminate the agreement, as the plaintiff failed to come forward to complete the sale construction by the last date specified in the agreement. Consequently, the defendant terminated the agreement under Ex.A5, and by virtue of Section 39 of the Indian Contract Act, he had the legal right to do so. Therefore, the question of unilateral cancellation does not arise. Furthermore, the agreement itself did not contain any specific term requiring prior notice for cancellation, contrary to the observation of the trial court.
31. By the conduct of the parties, it is evident in the defendant’s case that the plaintiff was not willing to perform his part of the contract. Therefore, the defendant was entitled to terminate the agreement, and the reasoning adopted by the trial court in this regard is erroneous. As stated supra, while the trial court rightly formulated the 11/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 issue, it reached an incorrect conclusion, overlooking the aforementioned legal position. Accordingly, the finding rendered by the trial court on this issue stands vacated. We thus hold that the absence of prayer for a declaratory relief is fatal to the plaintiff’s case.
32. Whether the plaintiffs are ready and willing to perform his part of the contract assumes significance in light of the plaintiff's own admission in the witness box as follows:-
"jhthr;brhj;jpy; ,Ue;J v';fis fhyp bra;ar; brhy;yp Mh;/rp/x/gp/20-2008 vd;W thjp jhf;fy; bra;Js;shh; vd;why; rhpjhd;/ gp/th/j/rh/M/4apy; 30/08/07k; njjpad;W jhd;gpd; njjpapl;l xU fhnrhiyia U:/3.20.000-?f;F ehd; bfhLj;njd; vd;W brhy;yg;gl;L ,Uf;fpwJ vd;why; mJ cz;ikjhd;/ Mdhy; vd;Dila 2007?2008 tUlj;jpw;fhd tUkhd hpl;ldpy; ,e;j U:/15.00.000-? ifkhwpaij jhd; fzf;fpy; fhl;ltpy;iy/ 2007?2008 epjpahz;ow;fhd tUkhdthp hpl;ld;
fzf;fpy; nkw;go ml;thd;!; MfbfhLf;fg;gl;l U:/15.00.000-? gw;wp Fwpg;gplg;gltpy;iy/ th/j/rh/M/3 Md 10/04/07apy; vGjpf; bfhs;sg;gl;l fpiua xg;ge;jnk xU g[idag;gl;l Mtzk; vd;gjhy; jhd; buhf;fkhf bfhLf;fg;gl;ljhf brhy;yg;gLk; U:/15.00.000-?/ mjpy;
fhz;gpf;fg;gltpy;iy vd;why; rhpjhd;/ 15/09/07 md;W nkYk; ml;thd;!;f;fhf U:/6.52.000-?j;ij buhf;fkhf bfhLf;fg;gl;ljhf gw;wpa tptuk; th/j/rh/M/3 kw;Wk; 4y; Fwpg;gplg;gltpy;iy vd;Wbrhd;dhy; rhpjhd;/ me;j t';fpapy; th/j/rh/M/4 30/08/07k; njjp Vw;gl;lij fhl;o jhd; fld;nfl;Ltpz;zg;gpj;njd; 12/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 vd;why; rhpjhd;/ 10/11/07k;njjpapypUe;J me;j t';fpapy; fld; cjtp xg;g[jy; MdJ vd;why; mJ vdf;F "hgfkpy;iy/ 10/10/07k; njjp me;j fpiua xg;ge;jj;jpy;
eph;zapf;fg;gl;l fhybfL Kot[ bgw;wJ vd;why; rhpjhd;/ mt;thW th/j/rh/M/4 Md 30/08/97k; njjpapy; Md fpiua xg;ge;jj;jpy; 30/10/07k;njjp fhybfL Kot[ bgw;wJ vd;why; rhpjhd;/ nkw;go ,uz;L fpiua xg;ge;j';fspYk;
eph;zapf;fg;gl;l fhybfL Koe;j gpwFjhd;
ehd;tpz;zg;gpj;j fld; cjtpf;F xg;g[jy; mspf;fg;gl;lJ vd;Wbrhd;dhy; rhpjhd;/ th/j/rh/M/3 fpiua xg;ge;jg;go 6 khj fhyf;bfL 10/11/07 njjpa[ld; KotilfpwJ vd;why; rhpjhd;/ ,uz;L fpiua xg;ge;j';fspYk; eph;zapf;fg;gl;l fhybfL Kotile;j gpwF jhd; vd;Dila t';fpapy;
vdf;F fld; tH';fg;gl;lJ vd;why; rhpjhd;/ nkw;go fpiua xg;ge;jj;jpy; fhybfLtpid ePl;oj;Jf;bfhLf;Fk;go ehd; gpujpthjpf;F mwptpg;g[ mDg;gtpy;iy vd;why; rhpjhd;/ t';fpapypUe;J fld; bgw;w gpwFk;Tl fpiuaj;ij Koj;Jf;bfhLf;Fk;go vjph;thjpf;F eh';fs; nehl;O!; mDg;gtpy;iy vd;why; rhpjhd;/ nkw;go fpiua xg;ge;jj;jpy; fhybfLtpid ePl;oj;;Jf;bfhLf;Fk;go ehd; gpujpthjpf;F mwptpg;g[ mDg;gtpy;iy vd;why; rhpjhd;/ t';fpapypUe;J fld; bgw;w gpwFk; Tl fpiuaj;ij Koj;Jf;bfhLf;Fk;go vjph;thjpf;F eh';fs; nehl;O!; mDg;gtpy;iy vd;why; rhpjhd;/ me;j 2 khj fhybfL 30/10/2007y; KotilfpwJ vd;why; rhpjhd;/ 10/11/2007 md;W jhd; t';fpapy; ,Ue;J vdf;F fld;bfhLf;f xg;g[jy; mspf;fg;gl;lJ vd;why; rhpjhd;/ nkw;go 2 khj bfL Koe;j gpwF jhd;
t';fpapypUe;J fld; bjhif fpilj;jJ vd;why; rhpjhd;/ fhybfL ePlo; g;g[ nfl;L ehd;gpujpthjpf;F nehl;O!; vJt[k; mDg;gtpy;iy vd;why; rhpjhd;/ t';fpapy; ,Ue;J fld; bjhif fpilj;jg; gpwF 13/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 ehd; fpiuag; gj;jpuj;Jld; kPjp fpiuaj; bjhifa[lDk;. rk;ge;jg;gl;l rhh;gjpthsh; mYtyfj;jpw;F tUfpnwd;/ Fwpg;gpl;l njjpapy; eP';fSk; m';F te;J fpiuaj;ij Koj;Jf;bfhL';fs; vd;W gpujpthjpf;F ehd; nehl;O!; vJt[k; mDg;gtpy;iy vd;why; rhpjhd;/ 30/08/2007 fpiua xg;ge;jkhd th/j/rh/M/4ia fhl;o jhd; t';fpapy; ,Ue;J fld;bgw tpz;zg;gpj;njhk; vd;why; rhpjhd;/"
32. After the cross-examination of P.W.1, further chief- examination was conducted upon application, and further cross- examination was also permitted, during which "ehd; ,e;j tHf;if 30/08/2007 njjpapl;l Ex.A4 d; mog;gilapy; jhf;fy; bra;Js;nsd; vd;why; rhpjhd;/ 10/04/2007k; njjpapl;l Ex.A3d; mog;gilapy; ehd; ghpfhuk; nfhutpy;iy vd;why; rhpjhd;/"
"Ex.A1 kw;Wk; Ex.A2 thlif xg;ge;j';fs; go jz;zPh; thp. ghjhs rhf;fil thp kw;Wk; mJ nghd;w Vida thpfs;
midj;Jk; ehd; jhd; fl;l ntz;Lk; vd;W Twg;gl;Ls;sJ vd;W brhd;dhy; rhpjhd;/ mjdhy; jhd; Ex.A15 to Ex.A19 y;
Twg;gl;Ls;s thpfis brYj;jpapUf;fpnwd; vd;W brhd;dhy; rhpjhd;/ 30/08/2007 njjpapl;l Ex.A4d; go xg;ge;j fhyg;go ehd; kPjp fpiua bjhifia brYj;jpajhy; xg;ge;jk; Kotile;J tpl;lJ vd;Wk; mjdhy; gpujpthjp vdf;F fpiuak; gjpe;J ju njitapy;iy vd;W brhd;dhYk; rhpay;y/ tHf;F js;Sgo bra;ag;gl ntz;Lk; vd;W brhd;dhYk; rhpay;y/ thp nfl;g[ mwptpg;gpd; go tPl;L thp tHf;fpw;F gpd;dpl;L jhd; brYj;jg;gl;lJ vd;W brhd;dhy; rhpjhd;/ thlif brYj;jpajhy;14/21
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 thlif fl;Lg;ghl;L jPh;g;ghizak; (RCOP) kJiu Kjd;ik khtl;l chpikapay; ePjpkd;wj;jpy; tHf;F epYitapy; cs;sJ vd;why; rhpjhd;/ Ex.A4f;F gpd;dpl;L vdf;Fk; gpujpthjpf;Fk; th';Fgth;? tpw;gth; vd;w cwt[ Kiw ,y;iy vd;Wk;
thlifjhuh;?epyr;Rthd;jhuh; vd;w cwt[Kiw jhd; ePoj;J bfhz;oUf;fpwJ vd;why; rhpjhd;/"
33. In respect of the sanctioning of the loan amount, P.W.3, the Bank Manager, was examined. During cross-examination, thjpfSf;F 30/08/2007 njjpapl;l fpua xg;ge;jj;jpd; mog;gilapy; jhd; v';fsJ t';fp fld; tH';fpa[s;sJ vd;iwa njjpapy; thjpfs; fld; nfl;L v';fs; t';fp fpisapy; tpz;zg;gpf;fpwhh;fs; vd;W vdf;F "hgfk; ,y;iy/ 12/11/2007 md;W jhd; thjpfSf;F fld; cjtp tH';f xg;g[jy; mspf;fg;gl;oUf;fpwJ/ "nkw;go thjpfs; t';fpf;Ff; bfhLj;j fojk; mjd; rhd;wpl;l g[ifg;gl efy; th/rh/M/9 MFk;/ me;j fojk; 6/10/2008y; jhd; v';fsplk;
me;j fojk; bfhLf;fg;gl;lJ/ thjpfs; nfl;oUe;j 3 khj fhyf;bfL 6/01/2009 cld; Kotile;Jtpl;lJ vd;why; rhpjhd;/"
34. Thus, from the admission of P.W.3, the Bank Manager, it is evident that the plaintiff approached the bank for a loan based on Ex.A4, the suit sale agreement dated 30.08.2007. The loan was sanctioned only on 12.11.2007, which is after the time limit fixed under 15/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 the agreement, and this fact assumes significance. As per the agreement, the time period of two months expired on 13.10.2007, and the loan was approved by the Bank Manager on 10.11.2007. Notably, even after the sanction of the loan, the plaintiff did not issue any legal notice expressing his readiness and willingness to perform his part of the contract, which is a crucial aspect.
35. D.W.1, in cross-examination, admitted the balance of the amount. We have also perused the reply notice Ex.A6, wherein the plaintiff has not averred anything to indicate his readiness and willingness to perform the contract, which is also of significance. Readiness refers to the party's efforts and financial capacity, while willingness pertains to the intention of the party to complete the sale transaction.
36. After reviewing the Rent Control Proceedings and other civil suit proceedings, we find that the plaintiff has taken multiple contradictory stands in different suits. The plaintiff's stance under Ex.A3 is contradicted by his own admission in cross-examination, as extracted above. Although the suit was filed based on Ex.A4, the plaintiff chose to pay the court fee based on Ex.A3. Additionally, the balance amount of sale consideration of Rs.13,28,000/- was not deposited at the time of 16/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 filing the suit, as can be seen from the lower court records.
37. Even after obtaining the bank loan as per Ex.A8 and Ex.A9, for reasons best known to them, the plaintiffs have not chosen to issue a legal notice indicating their readiness to perform their part of the contract. This also goes against the plaintiff’s case. There is an advance under the lease agreement, and the plaintiff claims some adjustment against the agreement under Ex.A3, which has been disputed by the defendant. As the plaintiff has not paid rent to the defendant for several years, the defendant appears to have filed an R.C.O.P., as evidenced by Ex.B4.
38. The plaintiff has put forward a specific plea that, as part performance of the suit sale agreement, he was let into possession. Admittedly, Ex.A4 is an unregistered document dated 10.04.2007. As per the Amendment Act, any agreement regarding the delivery of possession or putting the agreement holder in possession, as part performance of the contract under Section 53(A) of the Transfer of Property Act, must be registered. Furthermore, there is no recital in Ex.A4 regarding the delivery of possession, and thus we find that the respondent/plaintiff has raised a false plea of part performance of the agreement. Additionally, during cross-examination, P.W.1 admitted that the relationship between the parties was that of a landlord and tenant, as evidenced by Ex.B4, the 17/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 Rent Control Proceedings (R.C.O.P.), wherein the plaintiff admitted to the rental agreement. Therefore, the plea of the plaintiff being let into possession as part performance of the contract stands negatived
39. The pendency of the rent control proceedings for wilful default in payment of rent admitted by P.W.1 as extracted above, further supports the view that the plaintiff has taken multiple pleas concerning the advance amount under Ex.A3 and Ex.A4. Be that as it may, the defendant accepted Ex.A4, and the terms of the agreement were accepted by the defendant. As per the defendant, the balance of the sale consideration which was deposited only on 14.09.2013, much after the termination of the suit sale agreement.
40. In other words, the Ex.A4 agreement dated 10.04.2007 was cancelled on 18.12.2007 under Ex.A5, and the amount was deposited only in 2013, i.e., after six years. Therefore, we have no hesitation in concluding that the plaintiff was not ready with the money to purchase the sale consideration. The attempt made by the plaintiff to project that he had applied for a loan also fails, as evidenced by P.W.3, who testified that the loan amount was sanctioned only after the deadline fixed under the suit sale agreement. Furthermore, after obtaining the loan sanction, the plaintiff, for reasons best known to him, chose not to issue any legal 18/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 notice expressing his willingness to complete the transaction. Thus, when viewed from any angle, there is no positive evidence, much less any substantial evidence, to show that the respondent/plaintiff was willing to perform his part of the contract. Consequently, we find that the plaintiff has not demonstrated his readiness and willingness to perform his part of the contract, failing to satisfy the legal requirements under Section 16(c) of the Specific Relief Act.
41. The trial court misdirected itself by placing blame on the defendant in the suit for specific performance of the suit sale agreement. Specific performance is a discretionary and equitable relief. It is the responsibility of the plaintiff, as the purchaser, to complete the transaction and prove that he was ready and willing to perform his part of the contract.
42. In the instant case, Ex.A5 clearly shows that the suit agreement was cancelled, and once the agreement itself is cancelled, in the absence of declaratory relief, Ex.A4 becomes non est in the eyes of the law. In short, it is non est in the eyes of the law. Hence, a suit for specific performance without declaratory relief is not maintainable, as held by the Supreme Court in Sangita Sinha's case. From both a legal and factual perspective, we find that the respondent/plaintiff is not entitled to the relief of specific performance.
19/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015
43. Both points are answered in affirmation in favor of the appellant/defendant, and the Appeal Suit is allowed. The judgment and decree dated 31.07.2015 in O.S. No. 15 of 2008 is set aside, and O.S. No. 15 of 2008 on the file of the VI Additional District and Sessions Court, Madurai stands dismissed. It is open to the petitioner to withdraw the amount he has deposited before the trial court. Consequently, connected M.P is closed.
[T.K.R.,J.] [N.S., J.] 25.04.2025 Internet : Yes/No Index : Yes/No NCC : Yes/No nvi To
1.The VI Additional District and Sessions Court, Madurai.
2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
20/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm ) A.S.(MD)No.234 of 2015 RMT.TEEKAA RAMAN, J.
AND N.SENTHIL KUMAR, J.
nvi Judgment made in A.S.(MD)No.234 of 2015 25.04.2025 21/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/05/2025 04:53:20 pm )