Karnataka High Court
T Govindaraju vs Dr S R Mamatha on 14 May, 2025
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NC: 2025:KHC:18276
RFA No. 650 of 2008
C/W RFA.CROB No. 1 of 2009
RFA.CROB No. 8 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MAY, 2025
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 650 OF 2008 (SP)
C/W
REGULAR FIRST APPEAL CROB. NO. 1 OF 2009 (SP),
REGULAR FIRST APPEAL CROB. NO. 8 OF 2009 (SP)
IN RFA NO 650 OF 2008
BETWEEN:
DR. S R MAMATHA,
AGED ABOUT 39 YEARS,
W/O DR. P MOHAN AND ONLY
DAUGHTER AND ISSUE OF
LATE SRI S.M.RAMESH,
R/AT NO.7, 14TH CROSS, 9TH MAIN,
N.S. PALYA, BTM LAYOUT SECOND
STAGE, BANGALORE-560 070.
...APPELLANT
Digitally signed (BY SRI K.C. SUDARSHAN, ADVOCATE)
by NANDINI R
Location: HIGH
COURT OF AND:
KARNATAKA
1. T GOVINDARAJ,
AGED ABOUT 59 YEARS,
S/O SRI. T.V. CHALAMAIAH,
R/AT NO.419/1, 5TH CROSS,
AMARJYOTHINAGAR, VIJAYANAGAR,
BANGALORE-560 040.
2. SMT. S R SUJAYALAKSHMI,
AGED ABOUT 59 YEARS,
W/O LATE SRI S M RAMESH,
R/WITH DR. S.R. MAMATHA,
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NC: 2025:KHC:18276
RFA No. 650 of 2008
C/W RFA.CROB No. 1 of 2009
RFA.CROB No. 8 of 2009
NO.7, 14TH CROSS, 9TH MAIN,
N.S. PALYA, BTM LAYOUT SECOND
STAGE, BANGALORE-560 038.
...RESPONDENTS
(BY SRI M S VARADARAJAN & SRI SANTOSH, ADVOCATE FOR
C/R1; SRI H SOMASHEKHARAIAH, ADVOCATE FOR R2)
THIS RFA IS FILED U/S.96 R/W O XLI R 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 26.2.2008
PASSED IN O.S.NO.8293/1997 ON THE FILE OF THE XVII
ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-16), DECREEING
THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.
RFA.CROB NO 1 OF 2009
BETWEEN:
T GOVINDARAJU,
AGED ABOUT 59 YEARS,
S/O SRI T V CHALAMAIAH,
R/A NO.419/1, 5TH CROSS,
AMARAJYOTHINAGAR,
VIJAYANAGAR,
BANGALORE-560 040
...CROSS OBJECTOR
(BY SRI M S VARADARAJAN & SRI SANTHOSH, ADVOCATES)
AND:
1. DR. S R MAMATHA,
AGED ABOUT 39 YEARS,
W/O DR. P MOHAN AND
ONLY DAUGHTER & ISSUE
OF LATE SRI S M RAMESH,
R/A NO.7, 14TH CROSS, 9TH MAIN,
N S PALYA, BTM LAYOUT SECOND
STAGE, BANGALORE-560 070.
2. SMT. SRI SUJAYALAKSHMI,
AGED ABOUT 59 YEARS,
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NC: 2025:KHC:18276
RFA No. 650 of 2008
C/W RFA.CROB No. 1 of 2009
RFA.CROB No. 8 of 2009
W/O LATE SRI S M RAMESH,
R/WITH DR. S R MAMATHA,
NO.7, 14TH CROSS, 9TH MAIN,
N S PALYA, BTM LAYOUT SECOND
STAGE, BANGALORE-560 038.
...RESPONDENTS
(BY SRI K.C. SUDARSHAN, ADVOCATE FOR R1 & R2)
THIS RFA.CROB IS FILED (IN RFA.650/08) U/O.41 RULE
22 CPC AGAINST THE JUDGMENT AND DECREE DATED
26.2.2008 PASSED IN O.S.NO.8293/1997 ON THE FILE OF THE
XVII ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-16),
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF
CONTRACT & CROSS OBJECTOR HEREIN IS PREFERRING THIS
CROB, TO SET ASIDE THE PART OF THE JUDGEMENT AND
DECREE IN SO FAR AS IT HAS AWARDED INTEREST TO THE
DEFENDANTS AT 6% P.A ON THE BALANCE CONSIDERATION
AMOUNT AND ALSO IN SO FAR AS IT HAS REFUSED COSTS OF
THE SUIT TO THE PLAINTIFF BY ALLOWING THIS CROSS
OBJECTION.
IN RFA.CROB NO 8 OF 2009
BETWEEN:
SMT. S R SUJAYALAKSHMI,
AGED ABOUT 59 YEARS,
W/O LATE S M RAMESH,
R/AT NO 7, 14TH CROSS,
9TH MAIN, N S PALYA,
BTM LAYOUT 2ND STAGE,
BANGALORE-560 038.
... CROSS OBJECTOR
(BY SRI P H RAMALINGAM & SRI T.S VIJAYAKUMAR,
ADVOCATES)
AND:
1. T GOVINDRAJ,
AGED ABOUT 59 YEARS,
S/O SRI T V CHALAMAIAH,
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NC: 2025:KHC:18276
RFA No. 650 of 2008
C/W RFA.CROB No. 1 of 2009
RFA.CROB No. 8 of 2009
R/AT NO 419/1, 5TH CROSS,
AMARJYOTHINAGAR, VIJAYANAGAR,
BANGALORE-560 040.
2. DR. S R MAMATHA,
AGED ABOUT 39 YEARS,
W/O DR. P MOHAN,
D/O LATE SRI S M RAMESH,
R/AT NO 7,14TH CROSS, 9TH MAIN,
N S PALYA, BTM LAYOUT 2ND
STAGE, BANGALORE-560 070.
...RESPONDENTS
(BY SRI M.S. VARADARAJAN, ADVOCATE FOR R1;
SRI K.C. SUDARSHAN, ADVOCATE FOR R2)
THIS RFA.CROB IS FILED IN RFA NO. 650/2008 U/O XLI
R1, 22, 33 R/W S 151 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 26.2.2008, PASSED IN OS.NO. 8293/1997, ON
THE FILE OF THE XVII ADDL.CITY CIVIL JUDGE, BANGALORE,
DECREEING THE SUIT BY GRANTING THE RELIEF OF SPECIFIC
PERFORMANCE OF CONTRACT AND DIRECTING THE
DEFENDANT NO.1 (CROSS-OBJECTOR) AND DEFENDANT NO.2
THEREIN TO EXECUTE THE SALE DEED IN FAVOUR OF THE
PLAINTIFF THEREIN AND THE CROSS-OBJECTOR HEREIN
PRAYS TO SET ASIDE THE ABOVE JUDGMENT AND DECREE IN
SO FAR AS THE INTEREST OF THE CROSS-
OBJECTOR/DEFENDANT NO.1 IN THE PROPERTY.
THE APPEAL AND CROSS OBJECTIONS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
CAV JUDGMENT
Being aggrieved by the judgment and decree in O.S.No.8293/1997 passed by learned XVII Additional City -5- NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 Civil and Sessions Judge, Bengaluru (CCH-16), the defendant No.2 is in appeal before this Court. Aggrieved by the said judgment, the plaintiff has filed Cross Objection No.1/2009 and defendant No.1 has filed Cross Objection No.8/2009.
2. For the sake of convenience, the parties would be referred to as per their rank in O.S.No.8293/1997 before the trial Court.
3. The plaintiff - T.Govindaraj filed a suit for specific performance of Agreement of Sale entered between himself and defendants. The facts leading to this appeal and Cross Objections are as below:
a) Defendant Nos.1 and 2 are wife and daughter of one S.M.Ramesh. They along with S.M.Ramesh executed a Sale Agreement in favour of the plaintiff on 02.12.1991 agreeing to sell the suit schedule property for a consideration of Rs.10,76,000/-. A sum of Rs.2,01,000/-
was received by them as advance agreeing to execute the -6- NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 Sale Deed and to handover the vacant possession of the same. The suit schedule property had fallen to the share of S.M.Ramesh and defendant No.2 in a registered family Partition dated 01.03.1990. The said S.M.Ramesh died on 26.02.1992 leaving behind defendant Nos.1 and 2 as his legal heirs.
b) The suit schedule property consisted of three tenements occupied by three tenants. As per the terms and conditions of Agreement of Sale, the defendants were liable to handover the vacant possession of the suit schedule property to the plaintiff at the time of registration of the Sale Deed. Since they could not get the tenants evicted, a fresh Agreement was entered into between the plaintiff and defendant Nos.1 and 2 on 30.05.1992 reiterating the terms and conditions which were incorporated in the earlier Agreement dated 02.12.1991.
c) Thereafter, again a third renewal Sale Agreement came into existence between the plaintiff and defendants reiterating earlier conditions on 26.05.1995. -7-
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009
d) Defendant No.2 as joint owner of the suit schedule property filed HRC Nos.849/1992, 850/1992 and 851/1992 against the tenants before the Small Causes Court, Bengaluru, which came to be allowed on 20.04.1996. The tenants filed Revision before this Court in HRRP Nos.1058/1996, 1059/1996 and 1035/1996. Two of them were dismissed at the time of the admission stage on 09.09.1996 by granting further time to the tenants to vacate the property. The other one was dismissed on 10.12.1996 granting 30 months time to the tenant to vacate the property. Accordingly, all the three tenants vacated the suit schedule property on 10.09.1997 and 11.09.1997.
e) All the while, the plaintiff was actively following the eviction proceedings and after the tenants vacated, approached the defendants expressing his ready and willingness to pay the balance consideration amount and to get the Sale Deed executed. Defendant No.2 was working at Aravind Eye Hospital, Madurai, Tamilnadu. In -8- NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 order to get more price to the property, defendant Nos.1 and 2 did not respond to the requests of the plaintiff. Therefore, the plaintiff got issued a Legal notice dated 22.09.1997 to the defendants calling upon them to execute the Sale Deed by receiving the balance sale consideration amount. Defendant No.1 issued a reply denying the request made by the plaintiff and defendant No.2 did not receive the notice.
f) The plaintiff having no other alternative remedy, filed the suit for Specific Performance of Contract of Agreement of Sale dated 02.12.1991, Renewal Agreement dated 26.05.1995, expressing his ever ready and willingness to perform his part of the contract. On these grounds, the plaintiff sought for a decree of specific performance of the Agreement of Sale. 4. On service of summons, defendant Nos.1 and 2 appeared before the trial Court and filed their separate written statements. Defendant No.1 took up the contentions as below:
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009
a) She admitted that she along with her husband S.M.Ramesh and defendant No.2 entered into an Agreement of Sale on 02.12.1991 agreeing to sell the suit schedule property for Rs.10,76,000/-. She also admitted that on that day, she has received Rs.1,00,000/- by way of cheque but denied that a sum of Rs.2,00,000/- was received on that day. She also admitted that the suit schedule property was allotted to S.M.Ramesh and defendant No.2 under a registered Partition Deed dated 01.03.1990. She admitted that as per the Sale Agreement, the sale transaction was to be completed within 06 months from the date of the Agreement.
b) She admitted that on 02.01.1992, plaintiff had paid a sum of Rs.1,00,000/- by way of cheque. She also admitted that defendant Nos.1 and 2 after the death of S.M.Ramesh on 26.02.1992, entered into a further Sale Agreement dated 30.05.1992 at the request of the plaintiff. She also admitted that 06 months time was fixed for completion of the sale transaction.
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009
c) She contends that the plaintiff did not show any interest to pay the balance consideration amount and to get the Sale Deed executed despite the defendants approached the plaintiff several times. Thus, she denies the ready and willingness of the plaintiff to pay the balance consideration amount and get the Sale Deed executed in his favour. Six months time fixed under the Agreement dated 30.05.1992 expired on 30.11.1992.
d) Defendant No.1 alleged that the plaintiff had represented to her that he was in financial problem and had requested time for arranging the funds.
e) It is stated that on 26.05.1995, the plaintiff approached her and requested to renew the Sale Agreement and on 'humanitarian grounds', she signed the Agreement granting some more time of six months to the plaintiff to arrange funds. Even then, the plaintiff has not come forward to pay the balance sale consideration amount and therefore, the Agreement dated 26.05.1995 also expires on 26.11.1995 and as such, the suit filed by
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 the plaintiff is liable to be dismissed. Rest of the contentions of the plaint is denied by her.
5. Defendant No.2 in her written statement took up similar contentions as that of defendant No.1. In addition to the contentions taken up by defendant No.1, she took up the contentions as below:
a) The eviction petitions filed by defendant No.2 against the tenants is for demolition, reconstruction and her bonafide use and occupation. Therefore, the eviction petitions are in no way connected to the plaintiff.
b) After expiry of the time stipulated in the Renewal Sale Agreement dated 30.05.1992, she has not executed any Agreement and she is not a party to the alleged agreement dated 26.05.1995, as such, it is not binding on her and therefore, plaintiff has no right to file the present suit against defendant No.2.
c) Denying that the plaintiff was ready and willing to perform his part of the contract and that he had
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 approached defendant No.1 requesting execution of the Sale Deed, she has reiterated the contentions taken up by defendant No.1 and sought for dismissal of the suit. She contended that the defendants had no intention to sell the suit schedule property either to the plaintiff or any other person.
6. On the basis of the above contentions, the trial Court framed the following:
ISSUES "1. Whether the plaintiff proves that he is ever ready and willing to perform his part of contract?
2. Whether the plaintiff proves that he is entitle for specific performance of the agreement of sale?
3. Whether the defendants prove that the suit is barred by limitation?
4. What Order or decree?"
7. The plaintiff was examined as PW.1 and Exs.P1 to 9 were marked. Defendant Nos.1 and 2 were examined as DWs.1 and 2 and Exs.D1 to 11 were marked on their behalf. After hearing the arguments by both the sides, the
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 trial Court decreed the suit and directed the defendants to execute the Sale Deed in respect of the suit schedule property in favour of the plaintiff and also directed the plaintiff to pay the balance sale consideration Rs.8,75,000/- with interest at 6% per annum from the date of filing of the suit.
8. Being aggrieved by the same, defendant No.2 is in appeal and defendant No.1 and plaintiff have filed cross-objections.
9. On appeal being admitted, the trial Court records have been secured. The records reveal that the plaintiff had deposited the amount as per the decree before the trial Court and later, as per the order of this Court dated 26.11.2008, the deposited amount was withdrawn by him.
10. The arguments by learned counsel appearing for the appellant and the respondents/cross-objectors were heard.
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009
11. The learned counsel appearing for the appellant/defendant No.2 in his arguments submitted that the Agreement was dated 02.12.1991 and later, the father of defendant No.2, S.M.Ramesh died on 26.02.1992. Thereafter, the said Agreement came to be renewed by an Agreement dated 30.05.1992 (Ex.P2). Under the said Agreement, the time for performance of the contract was extended by six months. He points out that as per Exs.P3 and P4, the HRC proceedings were initiated and they came to an end in HRRP before the Hon'ble High Court of Karnataka on 09.09.1996 and 10.12.1996. The possession was obtained by defendant No.2 later in pursuance to the order passed by this Court in the Revision Petitions. He submits that Ex.P9-Renewal Agreement dated 26.05.1995 was executed only by defendant No.1 and the appellant herein was not a signatory to it. Therefore, Ex.P9-Renewal Agreement cannot be made binding to the appellant herein.
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12. He argues that the notice issued to the defendants by the plaintiff dated 22.09.1997 says that the sale consideration is already paid, whereas, the actual amount paid by the plaintiff was only to the extent of Rs.2,01,000/- only. He also points out that in Ex.P6, reply notice issued by defendant No.1 dated 04.10.1997, the right of the plaintiff to enforce the contract was cancelled and the advance amount was forfeited. Therefore, the turn of events which have been evidenced by various documents clearly show that the defendants had cancelled the said agreement. He further points out that the counsel for the plaintiff Sri N.U.Narasimhan was the counsel for defendant No.2 in the HRC proceedings. Though the plaintiff sought to examine the said counsel Sri N.U.Narasimhan as PW.2, later it was chosen not to examine him and his evidence came to be expunged. Therefore, it is contended that it was the said Sri N.U.Narasimhan who in fact had drafted the renewal agreement dated 26.05.1995 (Ex.P9) and had obtained the signature of defendant No.1. It is contended that
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 defendant No.2, the appellant herein had not at all signed the Ex.P9 and therefore, at no stretch of imagination it can bind her. It is his argument that the DW.1 i.e. defendant No.1 was unaware about the English as stated by her in her affidavit and her position as a widow was misused by the plaintiff and his counsel. Therefore, he submits that in the absence of the appellant/defendant No.2 being a signatory to Ex.P9, at no stretch of imagination it can bind the appellant. It is pointed out that the approach of the trial Court in holding that there was no such conflict of interest between defendant Nos.1 and 2 and therefore, Ex.P9 is binding on defendant No.2 is an erroneous proposition. The trial Court says that defendant No.2 consented for Ex.P9 and therefore, she is estopped from denying Ex.P9. This proposition of the trial Court is based on surmises and conjectures and the inferences drawn are totally incorrect.
13. He further points out that the suit was barred by limitation. He contend that by Agreement dated
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 30.05.1992, the time for performance of the contract was extended by only six months and therefore, the suit having been filed in the year 1997 is not within time. He points out that Exs.P1 and P2 show unequivocally that the time was essence of the contract. When defendant Nos.1 and 2 consciously extended the time by six months under Ex.P2, it was for the plaintiff to perform his part of the contract by paying the balance amount of the sale consideration and come forward to get the Sale Deed executed. It is pointed out that the suit is filed by the plaintiff in the year 1997 under the premise that the possession of the property was obtained in pursuance to the disposal of the House Rent Revision Petitions before the Hon'ble High Court is erroneous.
14. He further contends that the ready and willingness of the plaintiff to perform his part of the contract was not established. He submits that the first Agreement came into existence on 02.12.1991 and the second Agreement was executed by defendant Nos.1 and
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 2 on 30.05.1992 after the death of the father of the appellant on 26.02.1992. Thereafter, there is no Iota of evidence to show that the plaintiff was ready and willing to perform his part of the contract until a legal notice was issued by him as per Ex.P5 on 22.09.1997. Therefore, the conduct of the plaintiff clearly establishes that he failed to show his ready and willingness in performing his part of the contract. Therefore, he contends that the conclusions of the trial Court that the suit is within time and the plaintiff had proved the ready and willingness is totally perverse and needs interference by this Court.
15. Learned counsel appearing for the appellant places reliance on the judgment in the case of HUTCHEGOWDA Vs. H.M.BASAVIAH1 to contend that the suit is barred by time. He also relied on the judgment in the case of MAN KAUR Vs. HARTAR SINGH SANGHA2 regarding ready and willingness. He also relied 1 AIR 1954 MYSURU 29 2 (2010) 10 SCC 512
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 on the judgment in the case of K.KARUPPURAJ Vs. M.GANESAN3.
16. Learned counsel appearing for defendant No.1, who is a cross-objector in RFA.Crob.No.8/2009 submit that the cross-examination of PW.1 show that there was misuse of the status of the widowhood of defendant No.1. He submit that Ex.P9 was got signed by the plaintiff under the misrepresentation to defendant No.1 during the absence of her daughter. He also points out that the learned advocate who was appearing for the plaintiff, Sri N.U.Narasimhan was the person who drafted Ex.P9 and defendant No.1 believed the lawyer and therefore, she signed it. When she was unable to read English, it was necessary for the plaintiff to prove Ex.P9 in accordance with law. He points out that the cross-examination of PW.1 show that Ex.P9 came into existence under the suspicious circumstances. Regarding Ex.P9, he submits that defendant No.1 has established that the said agreement 3 (2021) 10 SCC 777
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 came into existence under suspicious circumstances and the pleadings show that it is something near to fraud that was played but however concede that the contention of the fraud and misrepresentation was not specifically mentioned in the pleadings and the evidence.
17. He further contends that Exs.P1 and P2 unequivocally mention that the time for performance of the contract was six months; the eviction of the tenants cannot be the cause of action; eviction of the tenants was not the criteria for performance of the contract of agreement of sale. Therefore, he submits that the tenure of Exs.P1 and P2 show that the time fixed for performance being six months, it could not have been construed to be the time subsequent to the eviction of the tenants from the suit property.
18. Per contra, Sri M.S.Varadarajan, learned counsel appearing for the plaintiff/Cross-Objector in RFA.Crob.No.1/2009 contends that at the time of Exs.P1 and P2, one Sri.Venkataramanappa was the Advocate for
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 the plaintiff. Only when the HRC proceedings were initiated against the tenants, learned counsel Sri N.U.Narasimhan came into picture. Thereafter, the parties felt a need for Ex.P9 and therefore, Sri N.U.Narasimhan being the Advocate was consulted and he had drafted Ex.P9. The said advocate died in the year 2006. Therefore, the conduct of learned counsel Sri N.U.Narasimhan cannot be in any way read as adverse to the interest of the plaintiff. It may be true that Ex.P9 was drafted by Sri N.U.Narasimhan but then he was representing defendant No.2 in the HRC proceedings. The said counsel Sri N.U.Narasimhan had drafted Ex.P9 and had presented the same to the parties, which was signed by the plaintiff and defendant No.1. Then he submits that the written statement of defendant No.1 show that she admits Ex.P9 but says that it was signed on 'humanitarian grounds'. Since it was a renewal of an earlier Agreement of Sale, the question of humanitarian ground do not come into picture and prevail in the matter. Defendant No.2, however denies Ex.P9. But both the defendants do not allege fraud,
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 mysterious circumstances and misrepresentation in their pleadings and therefore, Ex.P9 cannot be brushed aside.
19. Then he submits that the time stipulated in Exs.P1, P2 and P9 was six months from the date of Agreement or six months from the date of evicting the tenants. In this regard, he relies on the clauses in Ex.P1 and submits that the time for performance was six months from the date of eviction of the tenants. It is vehemently contended that unless the defendants could handover the vacant possession of the suit schedule property to the plaintiff, the execution of the Sale Deed could not have been enforced by the plaintiff.
20. He further points out that though DW.1 say that she does not know English but she has signed Exs.P1 and P2 also in English. There is no suggestion in the cross- examination of the plaintiff by the learned counsel for defendant No.1 regarding fraud or misrepresentation. In other words, defendant No.1 categorically admits Ex.P9. On the other hand, defendant No.1 admits that the
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 eviction of the tenants is a time fixed for execution of the Sale Deed. Therefore, when a harmonious construction of the clauses in the Agreement is made, it shows that the time fixed was to be read as six months after the eviction of the tenants. He contends that the parties have understood that the time fixed for execution of the Sale Deed is within six months from the date of eviction and that is why the Exs.P2 and P9 were executed by defendant No.1.
21. He contends that defendant No.2 - Dr. S.R. Mamatha was a student at Medical College at Hubli during her post graduation. Later, she changed her residence to Madurai, while working at Arvind Eye Hospital. During her absence, defendant No.1 signed Ex.P9. The cross- examination of defendant No.1 shows that she had showed Ex.P9 to defendant No.2. Even then, defendant No.2 kept silent and she did not question to the plaintiff about Ex.P9. Defendant No.2 should have resisted Ex.P9, when she says that she did not intend to sell the suit
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 schedule property after the six months of execution of the Ex.P2. The silence of defendant No.2 should be read as an estoppel preventing her to contend that she was unaware of Ex.P9. On the contrary, the affidavit evidence of defendant No.2 shows that the plaintiff was keenly watching the eviction proceedings of the tenants. This shows that the plaintiff was diligent in seeing that the tenants are evicted. There was no conflicting interest between defendant Nos.1 and 2. Defendant No.2 had come to know about Ex.P9, she had read it and therefore, Defendant No.2 had given implied consent to Ex.P9 by not denying it despite she coming to know about it. Defendant No.2 at no point of time had repudiated the Ex.P9 after knowing that Defendant No.1 had signed it.
22. He points to Clause Nos.4 and 6 of the Agreement at Ex.P1 and contends that there was no delay or laxity on the part of the plaintiff after the tenants were evicted from the suit schedule property in making his claim for specific performance and therefore, he
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 immediately issued a legal notice and the notice having been replied as per Ex.P6 denying the liability to execute the Sale Deed, he was constrained to file the suit. Therefore, in the conspectus of the things, he submits that the silence of defendant No.2 after coming to know about Ex.P9 and the admission of the DW.1 about Exs.P1, P2 and P9 clearly establish that the time was not the essence of the contract but eviction of the tenants from the suit schedule property was the criteria to go ahead with the execution of the Sale Deed. Therefore, he contends that at no stretch of imagination the suit can be held to be barred by limitation and that the plaintiff has established that he was always ready and willing to perform his part of the contract.
23. Learned counsel for plaintiff/Cross objector relied on the judgment in the cases of ALAGAMMAL AND OTHERS Vs. GANESAN AND ANOTHER4, L. KRISHNOJI RAO Vs. AGARBATHI WORKERS HOUSE 4 (2024) 3 SCC 232
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 BUILDING CO-OPERATIVE SOCIETY LTD5, BASAVARAJ Vs. PADMAVATHI AND ANOTHER6, P.RAMASUBBAMMA VS. V.VIJAYALAKSHMI AND OTHERS7.
24. In his reply, the learned counsel appearing for the appellant/defendant No.2 submits that DW.1 has stated that there was no conflict with defendant No.2 in the context of the HRC proceedings. He points out that DW.1 was owner to the extent of 25% and defendant No.2 was owner to the extent of 75% of the suit schedule property. When majority shareholder has not subscribed to Ex.P9, it is not binding on the parties. In this regard, he relies on the judgment in the case of HUTCHEGOWDA (referred supra) to contend that Article 113 of the Limitation Act contemplates two kinds of cases and in the first one, the time for performance is fixed in a contract itself and in the other, it is not so fixed. Though the word date is used in the Article, it should not be taken that the 5 2011 SCC ONLINE KAR 3914 6 (2023) 4 SCC 239 7 AIR 2022 SC 1793
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 particular date should specifically be stated in the Agreement. In fact, even if the time of performance cannot be ascertained at the time of the Agreement itself but can be ascertained at the time of performance, it may be said to be a case where the dates are fixed for performance of the contract. Based on this, he submits that the time for performance of the contract is six months and there being no mandatory clause in the Agreement that the tenants are to be evicted before execution of the Sale Deed, the suit is barred by time.
25. The learned counsel for the appellant also places reliance on the judgment regarding ready and willingness in the case of MAN KAUR (referred supra), re where it was held that :
"...the assumption 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. Take a case where there is a contract for sale for a consideration of Rs.10,00,000/- and the earnest money of
- 28 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 Rs.1,00,000/- was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15,00,000/-. In such a case, there is a clear breach of the contract by the defendant but in that case, the plaintiff did not have the balance of Rs.9,00,000/- 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."
26. He also relies on the judgment in the case of K.KARUPPURAJ (referred supra), where in paragraph No.12 and 14 held as below:
"12. It is required to be noted that as per the case of the original plaintiff, the defendant was required to evict the tenants and hand over the physical and vacant possession at the time of execution of the sale deed on payment of full sale consideration. Even in the suit notice issued by the plaintiff, the plaintiff called upon the defendant to evict the tenants and thereafter execute the sale deed on payment of full consideration from the plaintiff. Even when we consider the pleadings and the averments in the plaint, it appears that the plaintiff was never willing to get the sale deed executed with tenants and/or as it is. It was the
- 29 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 insistence on the part of the plaintiff to deliver the vacant possession after evicting the tenants. Therefore, on the basis of the pleadings in the plaint and on appreciation of evidence, the learned trial court held the issue of willingness against the plaintiff. However, before the High Court, the plaintiff filed an affidavit stating that he is now ready and willing to get the sale deed executed with respect to the property with tenants and unfortunately, the High Court relying upon the affidavit in the first appeal considered that as now the plaintiff is ready and willing to purchase the property with tenants and get the sale deed executed with respect to the property in question with tenants, the High Court has allowed the appeal and decreed the suit for specific performance.
xxxxx
14. The learned trial court held the issue of willingness against the plaintiff by giving cogent reasons and appreciation of evidence and considering the pleadings and averments in the plaint. We have also gone through the averments and the pleadings in the plaint and on considering the same, we are of the opinion that the learned trial court was justified in holding the issue of willingness against the plaintiff. The plaintiff was never ready and willing to purchase the property and/or get the sale deed executed of the property with tenants. It
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 was for the first time before the High Court in the affidavit filed before the High Court and subsequently when the learned trial court held the issue of willingness against the plaintiff, the plaintiff came out with a case that he is ready and willing to purchase the property with tenants. For the purpose of passing the decree for specific performance, the plaintiff has to prove both the readiness and willingness. Therefore, once it is found on appreciation of evidence that there was no willingness on the part of the plaintiff, the plaintiff is not entitled to the decree for specific performance. Therefore, in the present case, the learned trial court was justified in refusing to pass the decree for specific performance."
27. Obviously, in the above case, in the first instance, there was no discernible evidence on ready and willingness and the procedure adopted by the High Court in accepting the affidavit was erroneous. The plaintiff had come forward to purchase the property along with the tenants. Thus the facts can be distinguished very well.
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009
28. Learned counsel Sri M.S.Varadarajan has placed reliance on the judgment in the case of ALAGAMMAL (referred supra), wherein paragraph No.36 reads under:
"36. The relevant paragraphs from K.S. Vidyanadam v. Vairavan, [(1997) 3 SCC 1] read as under:
'10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no
- 32 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court inChand Rani v. Kamal Rani [Chand Rani v. Kamal Rani, (1993) 1 SCC 519] : (SCC p. 528, para 25) '25. ... it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?):
(1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract.' In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades --
particularly after 1973 [ It is a well-known fact that the steep rise in the price of oil following the 1973
- 33 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 Arab-Israeli war set in inflationary trends all over the world. Particularly affected were countries like who import bulk of their requirement of oil.] . In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981 i.e. more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? The plaintiff says that he has been calling upon Defendants 1 to 3 to get the tenant vacated and execute the sale deed and that the defendants were postponing the same representing that the tenant is not vacating the building. The defendants have denied this story. According to them, the plaintiff never moved in the matter and never called upon them to execute the sale deed. The trial court has accepted the defendants' story whereas the High Court has accepted [Vairavan v. K.S. Vidyanandam, 1995 SCC OnLine Mad 105] the plaintiff's story. Let us first consider whose story is more probable and acceptable. For this purpose, we may first turn to the terms of the agreement. In the agreement of sale, there is no reference to the existence of any tenant in the building. What it says is that within the period of six months, the plaintiff
- 34 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 should purchase the stamp papers and pay the balance consideration whereupon the defendants will execute the sale deed and that prior to the registration of the sale deed, the defendants shall vacate and deliver possession of the suit house to the plaintiff. There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981. It is not the plaintiff's case that within six months', he purchased the stamp papers and offered to pay the balance consideration. The defendants' case is that the tenant is their own relation, that he is ready to vacate at any point of time and that the very fact that the plaintiff has in his suit notice offered to purchase the house with the tenant itself shows that the story put forward by him is false. The tenant has been examined by the defendant as DW 2. He stated that soon after the agreement, he was searching for a house but could not secure one. Meanwhile (i.e. on the expiry of six months from the date of agreement), he stated, the defendants told him that since the plaintiff has abandoned the agreement, he need not vacate. It is equally an admitted fact that between 15-12-1978 and 11-7-1981, the plaintiff has purchased two other properties. The defendants' consistent refrain has been that the prices of house properties in Madurai have been rising fast, that within the said interval of
- 35 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 2½ years, the prices went up three times and that only because of the said circumstance has the plaintiff (who had earlier abandoned any idea of going forward with the purchase of the suit property) turned round and demanded specific performance. Having regard to the above circumstances and the oral evidence of the parties, we are inclined to accept the case put forward by Defendants 1 to 3. We reject the story put forward by the plaintiff that during the said period of 2½ years, he has been repeatedly asking the defendants to get the tenant vacated and execute the sale deed and that they were asking for time on the ground that tenant was not vacating. The above finding means that from 15-12-1978 till 11-7-1981 i.e. for a period of more than 2½ years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendants' case that the values of the house property in Madurai town were rising fast and this must have induced the plaintiff to wake up after 2½ years and demand specific performance.
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009
11. Shri Sivasubramaniam cited the decision of the Madras High Court in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswamy Nadar [S.V. Sankaralinga Nadar v. P.T.S. Ratnaswamy Nadar, 1951 SCC OnLine Mad 217 : AIR 1952 Mad 389] holding that mere rise in prices is no ground for denying the specific performance. With great respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the reality -- and the reality is constant and continuous rise in the values of urban properties -- fuelled by large-scale migration of people from rural areas to urban centres and by inflation. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs 5000 and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs 5000 (as against the total consideration of Rs 60,000) the plaintiff did nothing until he issued the suit notice 2½ years after the agreement. Indeed, we are inclined to think that the
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 rigour of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties -- evolved in times when prices and values were stable and inflation was unknown -- requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. The learned counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 been made the essence of the contract (relating to immovable properties).
***
13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2½ years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices -- according to the defendants, three times -- between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.' (emphasis supplied)"
29. He also placed reliance on the judgment in the case of L. KRISHNOJI RAO (referred supra), wherein relevant paragraphs read as under:
"35. Before we appreciate this contention of the plaintiff, it is necessary to take note of the law on the point. Article 54 of the Limitation Act, 1963 which provides for limitation for specific performance of the contract reads as under:--
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NC: 2025:KHC:18276
RFA No. 650 of 2008
C/W RFA.CROB No. 1 of 2009
RFA.CROB No. 8 of 2009
THE SCHEDULE PERIOD OF LIMITATION
Description Period of Time from which period
of suit limitation begins to run
54. For 3 years The date fixed for the
specific performance, or, if no
performan such date is fixed, when
ce of a the plaintiff has notice
contract. that performance is
refused.
36. The plea of limitation is a mixed question of law and fact. The question as to whether a suit for specific performance of contract will be barred by limitation or not would not only depend upon the nature of the agreement but also on the conduct of the parties and also as to how they understood the terms and conditions of the agreement.
37. The law on the point is well settled. The Apex Court in the case of Panchanan Dhara v. Monmatha Nath Maity (dead) through L.Rs. [(2006) 5 SCC 340] held as under:--
"20.......A plea of limitation is a mixed question of law and fact. The question as to whether a suit for specific performance of contract will be barred by limitation or not would not only depend upon the nature of the agreement but also on the conduct of the parties and also as to how they understood the
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 terms and conditions of the agreement. It is not in dispute that the suit for specific performance of contract would be governed by Article 54 of the Limitation Act, 1963. While determining the applicability of the first or the second part of the said provision, the Court will firstly see as to whether any time was fixed for performance of the agreement of sale and if it was so fixed, whether the suit was filed beyond the prescribed period unless any case of extension of time for performance was pleaded and established.
When, however, no time is fixed for performance of contract, the Court may
determine the date on which the plaintiff had notice of refusal on the part of the defendant to perform the contract and in that event the suit is required to be filed within a period of three years therefrom."
38. The Apex Court in the case of Gunwantbhai Mulchand Shah v. Anton Elis Farel, (2006) 3 SCC 634 held as under:--
"8 ....... 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 it was so fixed, to hold that a suit filed beyond three years of the
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 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 Reddy [(2006) 2 SCC 428].....".
41. Chitty on Contract Vol. 1, 23rd Edn., paragraphs 694-95 points out that a term would be implied if it is necessary in the business sense, to give efficacy to the contract.
15. The next and the last contention that the suit brought by the appellant was barred by limitation is wholly devoid of substance. Under Art. 113 of the Limitation Act, 1963, the limitation prescribed for a suit for specific performance is a period of three years which runs from the date when the cause of action accrues. In the facts and circumstances of the case, the respondents were required to have a conveyance executed immediately upon the conferment of occupancy rights on the abolition and the permission granted by the revenue authorities to him to convert the suit land into
- 42 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 village site. As already stated, the permission to convert the disputed land into village site having been obtained on August 26, 1958 insofar as a part of the land admeasuring 1,000 square yards and on September 10, 1959 as regards the remaining portion, it could not be said that the respondents' suit filed on September 6, 1960 was barred by limitation."
44. The law on the point is fairly well settled. The suit for specific performance of contract would be governed by Article 54 of the Limitation Act, 1963. For specific performance of contract three years period has been prescribed for filing a suit. But this three years period has to be counted in the mode in the last column, which is in two parts. The first part indicates that, in case any date has been fixed for performance of contract, in that event three years will be counted from that date. But when there is no date fixed, the second part will be applicable, which in substance is that the period of three years would commence to run when notice of performance is refused. The third column shows that wherever a time is fixed for the specific performance the first part of it would apply and in other cases the second part. While determining the applicability of the first or the second part of the said provision, the Court will first see as to whether any time was fixed for performance of the agreement
- 43 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 of sale and if it was so fixed, whether the suit was filed beyond the prescribed period unless any case of extension of time for performance was pleaded and established. When, however, no time is fixed for performance of contract, the Court may determine the date on which the plaintiff had notice of refusal on the part of the defendant to perform the contract and in that event the suit is required to be filed within a period of three years therefrom. The principle underlying this article is that when the date is fixed under the first part of column 3, limitation begins to run forthwith as the date is certain, but where no such time is fixed and where the party against whom the limitation runs is not in a position to know of the occurrence, of the contingency contemplated by the contract, time begins to run only when he has notice of the refusal of the performance. The expression "date" used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. "Date fixed for performance" does not mean a precise date by calendar alone, but the same is comprehensive enough to include a date which can be ascertained with reference to an event certain to happen. The phrase "the date fixed for the performance" must be not only an identifiable date but also a date which the parties intended should be the date when the contract should be performed the expression "date fixed" under this article means and
- 44 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 connotes the date expressly agreed to by the parties in the covenant itself. Of course, where the time under the contract is extended either expressly in writing or by consent, then the new date substituted would be the date fixed. Therefore, the date fixed for the performance must be construed to mean not only the date which can be identified, but also be a date which the parties intended to be the date when the contract should be performed. No doubt in the phrase "The date fixed for performance" occurring in the first clause is not merely referable to the "calendar date"
but also to any "other date in the calender" referable to an event that may happen in future with certainty. As to whether the words "date fixed" in the first part of column 3, mean the date by, calendar or whether they are comprehensive enough to include a date which can be ascertained with reference to an event certain to happen, the principle applicable is the doctrine of id certum est quod certum reddi potest. It means certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. The requirement of Article 54 is not that the actual day should necessarily be ascertained upon the face of the deed, but that the basis of the calculation which was to make it certain should be found therein. "Date fixed" means thus either the date fixed expressly or a date that can be fixed with reference to a future event which is certain
- 45 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 to happen. When date is fixed it means that there is a definite date fixed for doing a particular act."
30. He also placed reliance on the judgment in the case of P.RAMASUBBAMMA (referred supra), wherein paragraph No.19 reads as under:
"19. However, in the facts and circumstances of the case narrated hereinabove and when the learned trial court specifically gave the findings that Defendant 1-- vendor specifically admitted the execution of agreement to sell dated 12-4-2005 in favour of the plaintiff by accepting a substantial advance consideration and that Defendant 2 was in the knowledge of the agreement to sell and despite the same, he sold the same in favour of Defendants 3 and 4, who are his sisters-in-law and that too the sale deeds found to be nominal sale deeds, the learned trial court as such rightly decreed the suit for specific performance and also rightly declared that sale deeds dated 3-5-2010 executed by original Defendant 2 in favour of Defendants 3 and 4 are not binding upon the plaintiff and Defendant 1. The High Court has committed a grave error in reversing the judgment and decree passed by the learned trial court by ignoring the vital facts of the case which are either admitted or proved in the instant case."
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009
31. After hearing the arguments and in the light of the above position of law, the points that arise for consideration in this appeal and cross-objections are as below:
(i) Whether the time was essence of the contract?
(ii) Whether the suit is barred by time?
(iii) Whether the plaintiff was always ready and willing to perform his part of the contract?
(iv) Whether the judicial discretion exercised by the trial Court and awarding 6% interest over the balance sale consideration is proper?
Reg. Point Nos.1 and 2:
32. The question whether the suit is barred by time is interlinked to Exs.P1, P2 and P9. The plaintiff contends that the Agreement at Ex.P1 dated 02.12.1991 was signed by defendant No.1 as GPA Holder of her husband- S.M.Ramesh and also by defendant No.2 - S.R.Mamatha. This aspect is not in dispute. Thereafter, the said S.M.Ramesh died on 26.02.1992 is also not in dispute. The fact that the plaintiff and defendant Nos.1 and 2 entered
- 47 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 into another Agreement of Sale dated 30.05.1992 is also not in dispute. Defendant No.2 in her capacity as a joint owner of the suit schedule property filed HRC Nos.842/1992, 851/1992 and 850/1992 on 01.04.1992 is also not in dispute. Defendant No.1 admits that she executed a further agreement on 26.05.1995 and claims that it was on humanitarian grounds. However, defendant No.2 contend that she being not a signatory to the Agreement at Ex.P9 dated 26.05.1995, contend that the time fixed for performance of the contract was six months from the admitted Agreement dated 30.05.1992 (Ex.P2) and therefore, the suit filed in the year 1997 is barred by limitation.
33. The perusal of Ex.P1 shows that in Clause 3, 4, 5 and 6 it read as below:
"3. ಉ ೆ ಕ ಯದ ಬಲಗನು ಕ ಮ ಾದ ಕ ಯಪತ ೋಂ ಾವ ವಸದಂದು "ಾ#ಾಟ%ಾರ'%ೆ (ಾವ) "ಾಡಲು ಖ'ೕ ಾರರು ಒ-. ೊಂ/ರು0ಾ1#ೆ.
4. ಕ ಮ ಾದ ಕ ಯಪತ ೋಂ ಾವ ಬ%ೆ3 ಇಂ 5ಂದ 6 (ಆರು) )ಂಗಳ8 ಾ9 ೆ 5ಗ:ಪ/ಸ;ಾ<ದು=, ಸದ' ಾ9 ೆಯ>? ಖ'ೕ ಾರರು ಕ ಯದ
- 48 -
NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 @ಾA ಬಲಗನು "ಾ#ಾಟ%ಾರ'%ೆ (ಾವ) "ಾ/, ತಮ Bೆಸ'%ಾಗ>ೕ, 0ಾವC ಇDೆE ಪಡುವವರು Bೆಸ'%ಾಗ>ೕ, ತಮF ಖGH5ಂದ ಕ ಯಪತ ೋಂ ಾ9I ೊಳJಲು ಒ-. ೊಂ/ರು0ಾ1#ೆ.
5. Lೕ;ೆ ) Iದಂ0ೆ 5ಗ:ತ ಾ9 ೆಯ>? ಖ'ೕ ಾರರು ಕ ಯದ @ಾA ಬಲಗು ತಮ%ೆ ಸಂ ಾಯ "ಾ/ದ ಕೂಡ;ೇ ಸದ' ಖ'ೕ ಾರರ Bೆಸ'%ಾಗ>ೕ, ಅವರು ಸೂGತಬಹು ಾದ ಅವರ ಾP5-ಪ )5:
ವ%ೈ#ೆಯವರ Bೆಸ'%ಾಗ>ೕ ಕ ಯಪತ ೋಂ ಾ9I ೊಡಲು "ಾ#ಾಟ%ಾರರು ಬದS#ಾ<ರು0ಾ1#ೆ.
6. UೆಡೂVಲು ಸW)ನ>? Bಾ>ೕ @ಾ/%ೆ ಾರರು ಇದು= ಸದ'ೕ @ಾ/%ೆ ಾರರನು ಕ ಯಪತ ೋಂ ಾವ %ೆ ಮುಂGತ ಾ< Xಾ>ೕ "ಾ/I, Xಾ>Yಾದ ಸ)1ನ ZಾW:ೕನವನು ಖ'ೕ ಾರರ ವಶ ೆ\ ೊಡಲು "ಾ#ಾಟ%ಾರರು ಬದS#ಾ<ರು0ಾ1#ೆ."
34. The above clauses show that the Sale Deed has to be executed within a period of six months, during which time, the plaintiff has to pay the balance sale consideration amount. Clause No.6 categorically states that the suit schedule property is occupied by the tenants and the tenants have to be evicted by the defendants prior to execution of the Sale Deed and handover the vacant possession to the plaintiff. Obviously, under Ex.P1, the time fixed for payment of the balance sale consideration
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 and handing over the vacant possession after evicting the tenants came to an end on 02.06.1992.
35. Thereafter, the husband of defendant No.1, S.M.Ramesh died on 26.02.1992. In other words, one of the signatory to the Agreement died prior to the time fixed under Ex.P1. Thereafter, on 30.05.1992, the defendants executed a fresh Agreement of Sale as per Ex.P2. In Ex.P2, there is a reference for the time fixed for execution of the Sale Deed i.e., 02.06.1992 and the death of S.M.Ramesh. Therefore, in view of the changed circumstances, the defendants being not in a position to comply the terms of the Agreement under Ex.P1, a further period of six months was agreed to complete the transactions. It is specifically mentioned in Ex.P2 that the plaintiff was ready and willing to perform his part of the contract and that all the terms and conditions enumerated in the Agreement dated 02.12.1991 are intact.
36. Thereafter, under Ex.P9 dated 26.05.1995, which is titled as renewal of the Sale Agreement, though
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 the names of defendant Nos.1 and 2 are mentioned as sellers, it was only defendant No.1 who signed it. Defendant No.2 has not signed the document. In this document also, the receipt of Rs.1,00,000/- under the Agreement at Ex.P1 and thereafter, payment of an additional sum of Rs.1,00,000/- on 02.01.1992 by defendant No.1 are reiterated. There is a reference to Ex.P1 as well as Ex.P2. It is stated that since defendant No.2 had appeared for the examination at Hubli, she is not in a position to come for execution of the Sale Deed and therefore, both the parties agreed to renew the agreement fixing the date for execution of Sale Deed to be six months from 26.05.1995.
37. It is pertinent to note that as per endorsement to Ex.P1, defendant No.1 had acknowledged the receipt of Rs.1,00,000/- on 02.01.1992. Though this endorsement is disputed by defendant No.2, defendant No.1 admits the same in her testimony as DW.1. It is pertinent to note that the date of payment of Rs.2,01,000/- was not on the date
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 of Ex.P1 but it was payment of Rs.1,00,000/- each on two different dates and a sum of Rs.1,001/- on 28.10.1991 to defendant No.2 (As per Ex.P8).
38. From the perusal of the above transactions between the parties, it is clear that the defendants had agreed to extend the time fixed for execution of the Sale Deed under Ex.P2. The Ex.P1 contained a clause that prior to the Sale Deed the tenants have to be evicted. Obviously, the Sale Deed could not have been executed even if the plaintiff had paid the entire sale consideration amount to the defendants in view of the said clause in the agreement. Secondly, when there is extension of time by defendant Nos.1 and 2 for six months on account of death of S.M.Ramesh, the parties understood that unless the name of defendants is mutated in the property records, the Sale Deed could not have been executed. In other words, the extension of time to fulfill the contract depended upon the eviction of the tenants and the defendants capable of executing it.
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009
39. The third aspect to be noted is that under Clauses 11 and 12 of the Agreement under Ex.P1, the penalties for breach of contract by either of parties are mentioned. If the defendants failed to execute the Sale Deed, the option is given to the plaintiff to cancel the Agreement and in such event, the defendants have to pay twice the amount of the advance amount to the plaintiff. If the plaintiff fails to get the Sale Deed executed by paying the balance sale consideration despite the defendants had complied with the Agreement, then the defendants were at liberty to forfeit the advance amount. These clauses show that if the plaintiff had failed to perform his part of the contact despite the defendants were ready, option was with the defendants to cancel the Agreement. Nowhere the defendants intimated the plaintiff that on account of failure on the part of the plaintiff, they are canceling the agreement. Therefore, this Court comes to the conclusion that the parties knew that though there is a time of six months fixed for performance of the contract, it was not to
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 be treated as essence of the contract. Therefore, it cannot be said that the parties agreed that the time was essence of the contract. Consequently, point No.1 is answered in the 'Negative'.
40. The next aspect to be considered is about the limitation. This aspect would not hold the Court for long. Learned counsel for defendant No.2 contends that when the plaintiff is relying on Ex.P9 of the year 1995 for the purpose of limitation, defendant No.2 being not a party to it, the suit deserves to be dismissed against defendant No.2. It is not in dispute that defendant No.2 is not a party to Ex.P9. However, she was within the knowledge of Ex.P9. The cross-examination of DW.2 dated 12.04.2007 reads as below:
"I came to Bangalore after one month of from the date of execution of Ex.P.9. My mother informed me through telephone when I was at Hubli about the Ex.p.9. The Xerox copy of the Ex.P.9 was shown to me by my mother. My mother does not know the English language. I myself read over the contents to her on that day. I did not cause any notice to the plaintiff for
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 not agreeing the agreement of sale. It is true the witness to Ex.P.9 H.L. Ravindra is my maternal uncle. It is true that he is also present before the court today. It is true the signature of Ravindra also stands in Ex. P.2. It is true the Ex.P.8 receipt also bears the signature of Ravindra."
41. Thus, it is evident that DW.2/appellant herein was well within the knowledge of Ex.P9 and the witness to Exs.P1, P2 and P8 was also a witness to Ex.P9. No effort is made on behalf of the defendants to examine the said witness to show that defendant No.2 did not agree or consent for extension of time under Ex.P9. The testimony of DW.1, who is none else than the mother of defendant No.2 show that she had informed about Ex.P9 to defendant No.2 soon after its execution. Therefore, it is evident that defendant No.2 did not choose to distance herself away from the Ex.P9.
42. Be that as it may, admittedly, the tenants in the suit schedule properties were got evicted in January, 1997 as per the defendants and in the month of
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 September, 1997 as per the plaintiff. In either cases, if clause No.6 of the agreement at Ex.P1 is invoked, the performance of the contract could have been done only after the tenants were evicted and vacant possession was available with the defendants. This Court having held that time was not the essence of the contract, the limitation begins to run from the date when the right to sue accrues to the plaintiff. Obviously, such right to sue accrued to the plaintiff when the defendants refused and when tenants vacated the suit schedule property.
43. It is an admitted fact by the DW.2 that the plaintiff was vigilantly pursuing and observing the eviction proceedings against the tenants. Paragraph No.12 of the examination-in-chief of DW.2 show that the plaintiff was keenly watching the eviction proceedings and she was expecting soon after the tenants were evicted in January, 1997 the plaintiff would come and give the remaining amount as per the agreement and get the sale deed
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 executed. This shows that the plaintiff was keen in pursing the eviction proceedings.
44. For the aforesaid reasons, defendant No.2 cannot be absolved from contending that she being not a party to Ex.P9, the suit is barred by time. Even otherwise, the right to sue begins when the plaintiff approached the defendants after the tenants were evicted from the property and they refused to execute the sale deed. The suit having been filed in the year 1997 and it being an admitted fact that the tenants were evicted in January, 1997, at no stretch of imagination, it can be held that the suit is barred by time. Consequently, the point No.2 is answered in the 'Negative'.
Reg. Point No.3:
45. It is settled principle of law that a party seeking specific performance of contract of agreement of sale not only needs to plead but also to prove his ready and willingness to perform his part of the contract. As held in the case of BASAVARAJ (referred supra), it is not
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 necessary that the plaintiff has to prove his readiness by producing the bank passbook or by depositing the balance amount. It is the conduct which matters to infer the readiness and willingness.
46. In order to consider whether the plaintiff was ready and willing to perform his part of the contract, it is necessary to look into the evidence on record. It is pertinent to note that the plaintiff on one hand and defendant Nos.1 and 2 on the other hand entered into an Agreement in the year 1991 and 1992. Thereafter, defendant No.1 entered into a Renewal Agreement in the year 1995. Defendant No.1 had received a sum of Rs.1,00,000/- in the year 1992 and defendant No.2 had received a sum of Rs.1,001/- under Ex.P8. The suit schedule property was occupied by three tenants and they were to be evicted by the defendants.
47. As noted supra, the DW.2 say that the plaintiff was keenly watching and following the eviction proceedings. This statement of DW.2, who is the appellant
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 herein get ample impetus from various other facts. The role of the counsel-N.U.Narasimhan has been the bone of contention between the parties.
48. It is relevant to note that learned counsel Sri N.U.Narasimhan was a counsel of the defendant No.2 in HRC proceedings initiated by her against the tenants. He was also the counsel who drafted the Ex.P9 dated 26.05.1995. Thereafter,learned counsel Sri Narasimhan filed the present suit on behalf of the plaintiff. During pendency of the suit, he passed away. The records reveal that he had filed an affidavit on behalf of the plaintiff as a witness but later such evidence was expunged. 49. The affidavit evidence of defendant No. 1 (DW.1) does not make any allegation of fraud or allegation against learned counsel Sri N.U.Narasimhan. However, defendant No.2 (DW.2) makes allegations against the learned counsel Sri N.U.Narasimhan that he had colluded with the plaintiff. The testimony of DW.2 shows that the entire proceedings against the tenants for eviction was
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 conducted by the learned counsel Sri N.U.Narasimhan. He also represented defendant No.2 before the High Court in HRRP proceedings and got an eviction order. DW.2 states that through learned counsel Sri N.U.Narasimhan she paid certain amounts to the tenants and all the documents were kept by him. Therefore, she allege that he obtained the signature of her mother defendant No.1 without her knowledge. This testimony of DW.2 appears to be an afterthought. The reason being that the parties had agreed that the tenants have to be evicted before execution of the Sale Deed. The eviction proceedings were filed by defendant No.2 and it was keenly observed and followed by the plaintiff. It appears that all the instructions to conduct eviction proceedings was given by the plaintiff. The circumstances of the family of the defendants as may be found in the affidavit evidence of DW.2 would show that her father Sri S.M.Ramesh had obtained the suit schedule property in a partition, with three tenants in the property. He was suffering from heart ailment and had suffered paralysis and as such, he could not fight the litigation. He has appointed defendant No.1 as his
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 attorney. In such capacity, defendant No.1 entered into the suit agreement. Defendant No.2 was studying medicine in Bengaluru Medical College and later, she went to Hubli to do her master's degree. Thereafter, she joined a Hospital at Madurai. Therefore, it appears that learned counsel Sri N.U.Narasimhan conducted the eviction proceedings at the instructions of the plaintiff. This inference is obvious from the circumstances of the case.
50. The allegations against the learned counsel Sri N.U.Narasimhan are not by defendant No.1 but by defendant No.2. Defendant No.1 says that on 'humanitarian grounds' she signed Ex.P9. It is not known what the humanitarian grounds were. There was no room for humanitarian ground unless the defendant No.1 has received any assistance from the plaintiff.
51. The above circumstances would show that the plaintiff not only saw to it that the agreement was extended after the death of S.M.Ramesh but he keenly followed the eviction proceedings. Soon after the eviction,
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 he had approached the defendants and there being a refusal, was constrained to file the suit. This conduct of the plaintiff from the date of the agreement would show that he was diligent, was waiting for the eviction of the tenants. Soon after the eviction of the tenants, he has filed the present suit. It is pertinent to note that the revision petitions in HRRP Nos.1035/1996, 1058/1996 and 1059/1996 which are at Exs.P3 and P4 were disposed of by a Co-ordinate Bench of this Court on 09.09.1996 and 10.12.1996. Obviously, the tenants were given time to vacate the premises till 09.06.1999 subject to certain conditions. The legal notice was issued on 22.09.1997. Obviously, it cannot be said that there is inordinate delay. The conduct of the plaintiff from the year 1991 till the year 1997 is that of a diligent person and definitely comes within the meaning of his ready and willingness. The circumstances faintly indicate that after the agreements, plaintiff took the lead in the eviction of the tenants through learned counsel Sri N.U.Narasimhan. Immediately after taking possession, the plaintiff issued the notice and
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 has filed the suit. Therefore, there is no reason to hold that the plaintiff was not ready and willingness to perform the contract. The conduct of the plaintiff shows that he was always ready and willing to fulfill his part of the agreement. In the result, the point No.3 is answered in the 'Affirmative'.
Reg. Point No.4:
52. The last question that needs to be considered is about the judicial discretion exercised by the trial Court.
The trial Court directed the plaintiff to deposit the balance sale consideration amount along with interest at 6% per annum, this aspect is objected by the plaintiff in RFA.Crob.No.1/2009.
53. Learned counsel for the appellant and defendant No.1 contend that much water has flown after the agreement and therefore, the sale consideration amount being meager as per the present value, the discretionary relief of specific performance cannot be granted.
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009
54. The exercise of the discretion has been laid down in catena of decisions by the Apex Court:
a) In SATYA JAIN VS. ANIS AHMED RUSHDIE8, the Apex Court observed as below:
"39. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the plaintiffs are in no way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the plaintiffs to have the agreement enforced in law.
40. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasised that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. Such a view has been consistently adopted by this Court. By way of illustration opinions rendered in P.S. 8 (2013) 8 SCC 131
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 Ranakrishna Reddy v. M.K. Bhagyalakshmi [(2007) 10 SCC 231] and more recently in Narinderjit Singh v. North Star Estate Promoters Ltd. [(2012) 5 SCC 712] may be usefully recapitulated.
41. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalising the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final court.
b) In SHENBAGAM AND OTHERS VS KK RATHINAVEL9 the Apex Court observed as below:
"36. Even assuming that the respondent was willing to perform his obligations under the contract, we must decide whether it would be appropriate to direct the specific performance of the contract in this case. In Zarina Siddiqui v. A. Ramalingam a two- judge Bench of this Court while dealing with a suit for specific performance of a contract regarding the sale of immovable property observed that the remedy for specific performance is an equitable remedy and Section 20 of the Specific Relief Act confers a discretion on the Court. The Court held:
"24. It is well settled that remedy for specific performance is an equitable remedy.9
2022 SCC OnLine SC 71
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 The court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that the Court's discretion to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles."
xxxxx
40. In KS Vidyanadam v. Vairavan, an agreement to sell immovable property was entered into between the plaintiff-buyer and the defendant-seller for a consideration of Rs. 60,000, where earnest money of Rs. 5,000 had been paid in advance. The agreement stipulated that the plaintiff had to purchase stamp papers and pay the balance amount within six months and call upon the defendants to execute the sale deed. The plaintiff filed a suit for specific performance after a lapse of two and a half years seeking performance of the contract. The Court held:
"10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 prescribed by the parties in the agreement have no significance or value and that they mean nothing.
[...] In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? [...] There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981. It is not the plaintiff's case that within six months', he purchased the stamp papers and offered to pay the balance consideration.
[...]
13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2½ years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices -- according to the defendants, three times -- between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff."
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55. In the case on hand, the conduct of the defendants is worth to be noted. The defendants agreed to sell the suit schedule property as they were in the need of money. The circumstances of the situation of the family that could be gathered from the testimony of DW.1 is considered supra. The eviction proceedings were pursued by defendants No.2 while she was studying at Hubli and working at Madurai. The plaintiff was keen and vigilant in conducting the eviction proceedings. Defendant No.1 agrees to extend the time for performance but later, defendant No.2 makes a u-turn. Obviously, there is no breach of the contract by the plaintiff. The defendant Nos.1 and 2, after they obtained the possession of the property, appears to have become greedy and denied to execute the Sale Deed. The keen participation and diligence of the plaintiff having been admitted by defendant No.2 in her examination in chief, no fault can be found with the conduct of the plaintiff. On the other hand, the defendants have not brought anything which would tilt the balance of convenience and equity in their favour by
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 making any ground for discretionary relief. The conduct of the defendants is not satisfactory.
56. The escalation of the price is one of the aspects to be considered. The Agreement of Sale was entered into in the year 1991, the suit was filed in the year 1997 and the appeal filed in the year 2008. It is being decided in the year 2025. Much water has flown in three and a half decades and market prices have gone up. Though the explanation to Section 20(2) of Specific Relief Act lays down that the increase in the market value is not a ground to deny the specific performance, judicial pronouncements as depicted above, show a slight deviation to achieve equitable justice. In the case on hand, the parties had agreed to execute the Sale Deed soon after the payment of the balance sale consideration and eviction of the tenants. But the defendants denied executing the Sale Deed when the plaintiff approached them after eviction of the tenants. The circumstances indicate that the defendants entered into an agreement when their family was in distress. But their conduct of denying the
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 agreement and alleging collusion of their counsel with the plaintiff is unacceptable. Such allegations are not even attempted to be proved. Therefore, in the light of these circumstances, this Court is of the view that fastening of interest at 6% per annum on the balance sale consideration amount to be paid by the plaintiff is proper. Under these circumstances, the plaintiff is entitled for the relief of specific performance of the contract of agreement of sale.
57. It is pertinent to note that the trial Court in paragraph No.12 has considered the comparative hardship of the parties and has come to a conscious conclusion that the plaintiff is entitled for the relief of specific performance. The reasons assigned by the trial Court need not be interfered. The Apex Court in the case of SANTOSH HAZARI VS. PURUSHOTTAM TIWARI10 holds that the Appellate Court cannot substitute its own reasons unless the reasons assigned by the trial Court is found to be perverse. Therefore, concurring with the view 10 2001(3) SCC 179
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NC: 2025:KHC:18276 RFA No. 650 of 2008 C/W RFA.CROB No. 1 of 2009 RFA.CROB No. 8 of 2009 of the trial Court, the point No.4 is answered in the 'Affirmative'.
58. For the aforesaid reasons, the appeal as well as the cross objections are bereft of any merits. Hence, the following:
ORDER The appeal in RFA.No.650/2008 as well as the Cross Objection No.1/2009 and Cross Objection No.8/2009 are dismissed.
The judgment and decree passed by the trial Court in O.S.No.8293/1997 on 26.2.2008 is confirmed.
All pending applications stand disposed of.
Sd/-
(C M JOSHI) JUDGE NR/-List No.: 1 Sl No.: 2