Madras High Court
Amirtham vs Subbian And 3 Ors. on 2 September, 1997
Equivalent citations: 1997(2)CTC417
ORDER K. Govindarajan, J.
1. The plaintiff who failed before the lower court in O.S.No. 509 of 1981 on the file of the I Additional Subordinate Judge, Coimbatore has filed the above appeal.
2. According to the plaintiff, as stated in the plaint, the suit property belonged to the second defendant-society originally and the first defendant purchased the same from the society under the coveyance deed dated 18.3.1974 and he became the absolute owner of the property. That on 6.3.1980 the plaintiff entered into an agreement with the first defendant to purchase the property for a sum of Rs. 33,000 and she paid a sum of Rs. 6,000 as advance. As per the terms of the agreement, the plaintiff has to pay the balance amount of Rs. 27,000 to the first defendant within a period of four months from the date of execution and the first defendant has to execute the sale deed in favour of the plaintiff or to her nominees. It was further agreed that the plaintiff has to pay the amenity charges to the second defendant, and, for that purpose one has to become a member of the Society. The plaintiff remitted a sum of Rs. 260 to the second defendant-society on 19.5.1980 and became a member of the Society. The first defendant has to apply to the second defendant to get the 'No Objection Certificate' from the society in order to make a valid sale as per the bye-laws of the Society. Even though the first defendant applied to the society for N.O.C. on 3.4.1980, till 2.7.1980 he did not obtain the same. In view of the understanding between the parties the plaintiff purchased necessary stamp papers on 4.7.1980 according to the guideline value and got ready for getting the sale deed executed with necessary funds. The plaintiff made several requests to the first defendant to execute the sale deed after receiving the amount but he was simply postponing the same with ulterior motive. In spite of the advice of the panchayatdars, the first defendant did not come forward to execute the sale deed. According to the plaintiff, necessary fund was provided by the plaintiffs father and the plaintiff has got jewels more than 50 sovereigns in hand and also other movable properties and cash to the tune of Rs. 25,000 Since the first defendant failed to execute the sale deed, the plaintiff sent a notice on 31.10.1980 through her advocate. The first defendant was evading to receive the notice till 10.11.1980. Knowing that the plaintiff had sent the notice, the first defendant made hurried attempt to send a notice through his advocate dated 31.10.J980 which was registered on 3.11.1980 along with a cheque for Rs. 6,000 representing the earnest money. The plaintiff sent a reply dated 11.11.1980 to the defendant's counsel. The plaintiff was always ready and willing to perform her part of the contract. With the above pleadings the plaintiff has field the suit in O.S.No. 509 of 1981 on the file of the Sub-Court, Coimbatore, praying for a decree for specific performance of the contract, directing the first defendant to execute the sale deed as per the agreement dated 6.3.1980 in favour of the plaintiff and to put the plaintiff in possession of the same or in the alternative, the plaintiff has prayed for execution of the sale deed in favour of the plaintiff.
3. The first defendant has filed a written statement. He denied that the plaintiff has paid the amenity charges of Rs. 2,500 to the society. The plaintiff did not get 'No Objection Certificate' from the society. It is the case of the first defendant that the time for performance was stipulated as four months from the date of the agreement. But the plaintiff could not raise the sale price to take the sale. When the first defendant insisted the plaintiff, she expressed regret. So the plaintiff abandoned the agreement and did not take the sale. According to the first defendant the plaintiff never expressed her willingness or readyness to take the sale. Immediately the first defendant intimated the society on that the plaintiff and the first defendant has agreed to revoke the agreement. The first defendant had completed the terms of the contract. Since the price of the land had shot up suddenly, the plaintiff commenced proceedings in October, 1980 claiming the sale of the land. This defendant denies the purchase of stamp papers for the sale deed as alleged by the plaintiff. He also denies the source of money of the plaintiff, and on that basis the first defendant has submitted that the plaintiff was not ready to take the sale in her favour. With the above pleadings, the first defendant has prayed for dismissal of the suit.
4. Though the second defendant filed an elaborate written statement, it is enough to mention the necessary averments relating to this case. According to the second defendant as per the resolution passed on 2.5.1980 in the meeting of the Board of Directors, this defendant expressed no objection to transfer and sell the suit property to a member of its society. On 24.4.1980, the plaintiff submitted an application form and requested the second defendant to enroll her name in the members' list of this defendant-society and paid Rs. 250 and became a member. The plaintiff also paid the amenity charges of Rs. 2,755 on behalf of the first defendant. According to this defendant, he also sent a reply letter dated 20.5.1980 and granted permission to sell the suit property to a member of its society. The' No Objection Certificate' was also prepared on 20.5.1980 itself, but the first defendant has so far not received the same. So, this defendant by its letter dated 2.7.1980 informed both the first defendant and the plaintiff about the preparation of the 'No Objection Certificate'. On the basis of the above pleadings, the second defendant has prayed that no cause of action has arisen against the Society and so the suit has to be dismissed with cost.
5. On the basis of the abovesaid pleadings, the lower court has framed the following issues:-
(1) Whether the plaintiff has abandoned the sale agreement as stated in paragraph 4 of the written statement of the first defendant?
(2) Whether the time is the essence of the contract?
(3) Whether the plaintiff was ready and willing to perform her part of the contract as stated in the plaint?
(4) Whether the plaintiff or the first defendant violated any of the conditions of the contract?
(5) Whether the second defendant is not a necessary party to the suit?
(6) Whether the plaintiff is entitled to the specific performance of the agreement as prayed for?
(7) To what relief the plaintiff is entitled?
6. The lower court has held in favour of the first defendant with respect to issue Nos. 1, 3, 6 and 7, and with respect to issue No. 2, it has held that the time is not the essence of the contract. With respect to issue No. 5, the lower court has held that the second defendant is not a necessary party to the suit.
7. On the basis of the above findings, the lower court has dismissed the suit and directed the first defendant to return the advance amount of Rs. 6,000 to the plaintiff.
8. The point for determination in this appeal is whether the plaintiff/appellant is entitled to a decree for specific performance of the contract as alleged.
9. The entire suit is based on Ex.A-1 agreement, entered into between the plaintiff and the first defendant on 6.3.1980. As per the agreement, the sale consideration was fixed at Rs. 33,000, and an advance amount of Rs. 6,000 was paid. It was further agreed that the plaintiff agreed to pay the balance amount of sale consideration within four months from the date of the agreement. The lower court in paragraph 10 of its judgment has stated that during the said four months period the plaintiff did not even try to perform her part of the contract and that ultimately it has come to the conclusion that the plaintiff was not ready and willing to perform her part of the contract.
10. As stated earlier, under the agreement, it is for the plaintiff to pay the balance amount within four months from the date of the agreement, to perform her part of the contract. Even according to Forms 47 and 48 of the Civil Procedure Code the plaintiff has to state in the plaint that the plaintiff has pleaded to the defendant specifically to perform his part of the contract, as per the agreement. But the plaintiff has not done so. In the present case, in paragraph 4 of the plaint, she has stated as follows:-
"She made several requests to 1st defendant to execute the sale deed after receiving the money but he was simply postponing the same with ulterior motive. Again in the month of September 1980 the plaintiff approached the 1st defendant with her husband and discussed the matter but the 1st defendant took out a different stand and refused to perform the contract."
This is the only averment that is available in the plaint to show that the plaintiff has approached the first defendant to perform her part of the contract. After the agreement notices were exchanged between the parties. In Ex.A-6 notice issued on behalf of the plaintiff to the first defendant it is stated as follows:-
"Though the aforesaid sum was got ready as early as in May, 1980 itself, however, in view of your dilatory tactics, the payment could not be made to you and the sale deed obtained from you. In the month of September, 1980, when my client met you and discussed with you along with my client's husband, you took out a different stand and if possible refused to perform the contract."
But, P.W.1, in her evidence has stated as follows:-
The above version of P.W.1 will clearly show that during the currency of the said four months period the plaintiff did not met the first defendant and that fact has been specifically admitted by P.W.1 in the cross examination. It is also further admitted by P.W.1 that no notice was issued to the first defendant during the currency of the said four months period. P.W.2 in his chief-examination has stated that he met the first defendant within the said period of four months. But, according to the plaintiff, the first defendant was not in town, and so she could not contact the first defendant. All these versions are contradictory to each other. The plaintiff has come to the court with the false averments as to her readiness in performing her part of the contract. In paragraph 4 of the plaint, as narrated above, she has averred as if she made several requests to the first defendant to execute the sale deed and again she made such request in the month of September, 1980. This specific averment in the plaint will show that even during the currency period of the said four months, the plaintiff met the first defendant and requested for execution of the sale deed. That is why, she has stated as again in the month of September 1980, the plaintiff approached the first defendant.
11. According to the plaint, even before September, 1980 she met the first defendant. But, in her evidence she has categorically stated that she could not met the first defendant during the currency period of the said four months. No evidence is available to support the version of P.W.2, who says that he met the plaintiff during the currency period of the said our months.
12. Even with respect to availability of funds, in the plaint, it is specifically stated that fund was provided by her father, and since the sale deed was not executed, the sale price amount was deposited in the savings account. In the plaint it is averred that the plaintiff was having a sum of Rs. 25,000 but in her evidence as P.W.1 she has stated that she was having only Rs. 20,000 cash in hand and that her father had assured to give Rs. 10,000, though in the plaint it is averred that necessary fund was provided by her father. There is no explanation on the side of the plaintiff as to why the said sum of Rs. 30,000 was deposited on 11.9.1980 under Ex.A-20 in the name of the plaintiff's father instead of in the name of the plaintiff.
13. The factum of readiness and willingness to perform the plaintiffs part of the contract has to be judged with reference to the conduct of the parties and attendant circumstances. The facts narrated above will clearly prove that the plaintiff was not ready and willing to perform her part of the contract and that she has not made any demand with the first defendant during the currency period of the said four months to perform her part of the contract. Moreover the plaintiff has come forward with false facts as if she had made a demand during the currency period of the four months, to the first defendant to perform her part of the contract. The Apex Court in the decision reported in Lourdu Man David v. Louis chinnaya Arogiaswamy, while dealing with the equitable relief of decree for specific performance has held as follows:-
"It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clear hands and is not entitled to the equitable relief."
The abovesaid principle will apply to the facts of the present case also. The facts narrated above will clearly prove that the plaintiff/appellant has not come forward with clean hands, and on that ground this appeal has to be dismissed.
14. Moreover, on 30.7.1991 the suit was dismissed and it was restored on 26.3.1996, though the restoration petition was filed on 18.4.1995. Admittedly, the first defendant/respondent sold the property to third parties on 12.4.1995, who have been impleaded as third and fourth respondents in the appeal, that is even before serving copy of the restoration petition and the grounds of appeal. According to the learned counsel for the appellant, the said copies were served on the counsel on 18.4.1995. It was brought to my notice that the purchasers have constructed building in the land and running a hospital. So, the respondents 3 and 4 have purchased the land even before the restoration of the appeal and so their contention that they are the bonafide purchasers on the impression that no civil proceedings are pending with respect to the suit property has to be accepted. In view of he fact that the third and fourth respondents are the bona fide purchasers for value and that the third and fourth respondents on the basis of the valid purchase constructed the building in the suit land by spending huge money. At this stage, it is not possible for the first defendant/respondent to handover possession of the suit property.
15. While dealing with the term 'bona fide purchaser', the Apex Court in the decision stated supra has held as follows:-
"In addition, the Division Bench also agreed with the learned single Judge and held that the third respondent had no knowledge whatever of the plaintiffs agreement and, therefore, he was a bona fide purchaser for value without notice. This is a concurrent finding of fact after appreciation of evidence. It would thus be seen that no both the grounds, the courts below rightly refused to exercise the discretion on legal principles to grant specific performance. It does not, therefore, warrant interference."
16. Pending the appeal, the respondents 3 and 4 herein have filed C.M.P.Nos. 1486 and 1855 of 1997 to file/receive the documents enclosed therein as additional evidence in this appeal. The respondents 3 and 4 are third party purchasers of the suit property and so the petitions filed at the instance of the respondents 3 and 4 cannot be maintained and they are liable to be dismissed.
17. In view of the above discussions, this Appeal Suit is dismissed. No costs. C.M.P.Nos. 1486 and 1855 of 1997 are also dismissed.