Madras High Court
A.Ramanathan Chetthiar vs R.Ranganayaki on 29 February, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.343 of 1996 and C.M.P.No.6232 of 2005 A.Ramanathan Chetthiar ... Appellant/Plaintiff Vs. 1.R.Ranganayaki 2.S.V.Sivakumar 3.N.Valliammai 4.C.Valliappa Chettiar 5.Kasi Viswanathan ... Respondents/Defendants Prayer Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 15.12.1992 in O.S.No.50 of 1989 on the file of the Subordinate Judge, Devakottai, PMT District. !For Appellant ... Mr.M.C.Swamy ^For Respondents ... Mr.N.Dilipkumar for R.3 No representation for R.1, R.2, R.4 and R.5 :JUDGMENT
This appeal has been filed against the judgment and decree dated 15.12.1992 in O.S.No.50 of 1989 on the file of the Subordinate Judge, Devakottai, PMT District.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. Broadly but briefly, narratively and precisely, the case of the plaintiff as stood exposited from the plaint, could be portrayed thus:
The plaintiff and the first defendant entered into the agreement to sell as per Ex.A.1 dated 20.03.1989, whereby the latter agreed to sell in favour of the former the suit immovable property described in the schedule of the plaint for a sale consideration of Rs.1,00,000/- (Rupees One Lakh only) and a sum of Rs.20,000/- was paid by the former to the latter as advance. The time stipulated was upto 13.05.1989. Owing to factors beyond the plaintiff's control, the sale deed could not be got executed in his favour and thereupon, by mutual agreement, time was got extended upto 13.07.1989. On 13.07.1989, the plaintiff was present at the Sub-Registrar's Office concerned, but the first defendant did not turn up and thereby the sale deed could not be got executed in favour of the plaintiff. Whereupon, a telegram was sent to the first defendant explaining his position, it was replied otherwise as though the plaintiff committed default. Thereupon, the plaintiff filed the suit for specific performance.
4. Per contra, denying and disputing, challenging and impugning the allegations/averments, the first defendant filed the refutatory written statement; the gist and kernel of it, could be detailed thus:
The plaintiff was not ready and willing to perform his part of the contract. As a concession, time was extended upto 13.07.1989. It was specifically mentioned therein that on 13.07.1989 at 11.00 a.m., the plaintiff should make himself available with the requisite stamp papers for the purpose of getting the sale deed executed and also with the remaining part of the sale consideration, so to say, the sum of Rs.80,000/- (Rupees Eighty Thousand only). The first defendant, as such, indicated that time was the essence of the contract and in the event of the plaintiff failing to get the sale deed executed as observed supra, the contract shall stand cancelled. Despite such categorical expression from the first defendant's side, the plaintiff who was really having no sufficient money as well as the financial wherewithal to get the sale deed executed in his favour, failed to appear at the Sub-Registrar's Office concerned on 13.07.1989. Whereupon, the first defendant cancelled the agreement by sending necessary communication to the plaintiff. Subsequently, the plaintiff executed the power deed in favour of one Natarajan to sell the suit property. Accordingly, there was no merit in the plaint filed by the plaintiff.
5. The trial Court framed the relevant issues.
6. During trial, the plaintiff examined himself as P.W.1 along with P.W.2 and P.W.3 and Exs.A.1 to A.29 were marked. The first defendant examined herself as D.W.1 and Exs.B.1 to B.7 were marked.
7. Ultimately, the trial Court found that time was essence of the contract and the plaintiff was not ready and willing to perform his part of contract and accordingly, the trial Court dismissed the original suit.
8. Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court, the plaintiff preferred this appeal on the following main grounds among others:
(i) The judgment and decree of the trial Court are against law and the weight of evidence. Time was not the essence of the contract. However, the trial Court assumed the contrary as though time was the essence of the contract and dismissed the suit. On 13.07.1989, even though the plaintiff was very much present with the remaining part of the sale consideration and also ready to purchase the stamp papers, nevertheless the first defendant did not appear and this fact was ignored by the trial Court.
(ii) The deposition of P.W.2 and P.W.3 have not been considered in the proper perspective, even so their testimonies would highlight that the plaintiff was always ready and willing to perform his part of the contract. The learned trial Judge misunderstood the extract from the Commentaries on the Contract Act by Mr.Subramanian and Singhal, 3rd Edition, 1989 at page 1061. The plaintiff by clinching evidence highlighted that on 13.07.1989, he was present at the Sub-
Registrar's Office concerned for getting the sale deed executed on 13.07.1989, nonetheless the trial Court held otherwise. Accordingly, the plaintiff prayed for setting aside the judgment and decree of the trial Court and for decreeing the original suit.
9. The points for consideration are:
(i) Whether the plaintiff was ready and willing to perform his part of the contract throughout and more specifically on 13.07.1989?
(ii) Whether the trial Court was justified in holding that time was the essence of the contract so far as this case is concerned?
(iii) Whether there is any infirmity in the judgment and decree of the trial Court?
10. Point Nos.(i) and (ii) are taken together for discussion as they are interlinked and interwoven with each other.
Point Nos:(i) and (ii)
11. At the outset, I would like to highlight certain vital points which are to be considered before commencing discussion on merits.
12. Before the trial Court only, the first defendant appeared and the other defendants who happened to be the subsequent purchasers from the first defendant, remained ex-parte.
13. In this appeal, the first defendant remained ex-parte, whereas the third defendant appeared through her Counsel who argued the matter.
14. The question arises as to whether without filing written statement before the trial Court, the third defendant would be competent to argue on merits the entire case.
15. At this juncture, the learned Counsel for the plaintiff would correctly cite the decision of the Honourable Apex Court in M.M.S.Investments, Madurai and others v. V.Veerappan and others reported in 2008-1-L.W.62. An excerpt from it, would run thus:
"6. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the Specific Relief Act, 1963 (in short the 'Act') is not applicable. It is to be noted that the decision in Ram Awadh's case (supra) relates to a case where there was only an agreement. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide purchasers for value without notice. The question whether the the appellants were ready and willing is really of no consequence. In Ram Awadh's case (supra) the question of the effect of a completed sale was not there. Therefore, that decision cannot have any application so far as the present case is concerned. Once there is a conveyance the concept would be different and the primary relief could be only cancellation.
7. Learned counsel for the appellants submitted that since the purchasers step into the shoes of the vendor, the question of readiness and willingness can be pressed into service. This plea is clearly without substance because the purchasers had to prove that they are bona fide purchasers for value without notice. The readiness and willingness aspect will not give any relief to them. That being the position, the appeal is sans merit and is dismissed. There will be no order as to costs."
16. In fact, the aforesaid judgment emerged consequent upon the appeal filed the appellant in the case decided by this Court in M.M.S. Investments v. Veerappan reported in 2000 (I) CTC 538 which has been cited by the learned Counsel for the third defendant herein.
17. The perusal of the aforesaid extract and more so, the entire judgment, would highlight the fact that the subsequent purchaser of the suit property cannot be heard to contend the facts relating to the transaction which emerged between the parties to the agreement to sell and at the most the subsequent purchaser could contend that he is a bona fide purchaser for value without notice of any dispute between the parties to the agreement to sell. Accordingly, if viewed, ex facie and prima facie, it is clear that the third defendant who remained exparte before the trial Court and had not filed the written statement, is having no right to canvass the case of the first defendant and pick holes in the case of the plaintiff.
18. Be that as it may, the learned Counsel for the third defendant submitted his argument under the following sub-heads:
(i) Time was made the essence of the contract as per Ex.A.1 and by virtue of subsequent exchange of communications between the parties.
(ii) The plaintiff was not ready and willing to perform his part of the contract.
(iii) The third defendant is a bona fide purchaser for value without notice of such dispute between the parties to the agreement to sell.
(iv) At any rate, the plaintiff is not entitled to obtain the discretionary relief of specific performance, when adequately he could be compensated money wise and that too when he contracted with one other party even before getting the sale deed executed in his favour.
19. By way of comprehensively deciding this appeal, I proceed to deal with all the points in seriatim.
20. The learned Counsel for the plaintiff would draw the attention of this Court to various Exhibits marked in this case and highlight that as revealed by Ex.A.3, the plaintiff had always been ready and willing to perform his part of the contract. As revealed by Ex.A.1, both sides entered into an agreement to sell whereby 13.05.1989 was agreed to be the time limit for getting the sale deed executed in favour of the plaintiff from the first defendant. However, Ex.B.1, the telegram would clearly highlight that the plaintiff could not get such sale deed executed owing to certain unavoidable circumstances which he would elaborate during trial by pointing out that his sister died and that he could not be ready. Subsequently, Ex.A.3, telegram emerged at the instance of the plaintiff to the effect that the plaintiff was ready and willing to perform his part of the contract and he would also refer to the earlier meeting between himself and the first defendant on 13.05.1989.
21. Whereupon, by Ex.A.4, the first defendant conveyed her intention and it is just and necessary to extract the same hereunder for ready reference:
"A.Ramanathan, 11, Hospital Street, KYR, willing to execute the sale deed as per your Telegram be ready with the entire balance of sale consideration and necessary stamp papers at the Sub-Registrar's Office, Karaikudi on 13.07.1989 at 11.00 A.M failing which agreement will be treated as cancelled.
R.Renganayaki."
22. The perusal of the aforesaid excerpt, would clearly demonstrate that ignoring the past happenings, the first defendant had come forward to get the transaction concluded if the plaintiff would be ready to come forward to get the sale deed executed on 13.07.1989 at 11.00 a.m., by having with him the remaining sale consideration and also necessary stamp papers to get the sale deed executed in his favour.
23. This gains prominence in this case. On the one hand, the learned Counsel for the plaintiff would argue that even though the time has been fixed as 11.00 a.m on 13.07.1989 as the crucial time for getting the sale deed executed in favour of the plaintiff from the first defendant, nevertheless it cannot be taken as the one constituting the essence of the contract.
24. Whereas the learned Counsel for the third defendant would contend that it is a trite proposition of law that despite in the agreement itself, there may not be any specification that time should be treated as the essence of the contract, nonetheless the parties by subsequent communications and conduct can make the time as the essence of the contract and Exs.A.3 and A.4 should be interpreted in that line.
25. According to the third defendant, on 13.07.1989 at 11.00 a.m., the plaintiff was not ready and that was why the contract did not get concluded. It is obvious that the third defendant could not have any personal knowledge about it. Even so, the third defendant on behalf of the first defendant, would canvass his case.
26. To the risk of repetition without being tautologous, I would like to highlight that these pleas of the third defendant are considered purely out of academic interest and the third defendant in stricto sensu cannot legally canvass on behalf of the first defendant such pleas.
27. As correctly highlighted by the learned Counsel for the plaintiff, the deposition of D.W.1 itself would lend support to P.W.1 that P.W.1 was present on 13.07.1989 at the Sub-Registrar's Office to get the sale deed executed in his favour.
28. An excerpt from the deposition of D.W.1, during cross-examination is extracted hereunder for ready reference:
"13 e; Bjjp, rhh;gjpthsh; mYtyfj;jpw;F vjph;g[wj;jpy; thjpiag; ghh;j;jbghGJ mth; vA;fSld; Bgrtpy;iy. ehBdh, vd; fztBuh, thjpia Tg;gpltpy;iy. thjpia 20 my;yJ 25 mo Jhuj;jpy; ghh;j;Bjhk;." (emphasis supplied.)
29. As such, the aforesaid excerpt from the cross-examination of D.W.1 would clearly indicate and exemplify that on 13.07.1989, the plaintiff was very much present at the Sub-Registrar's Office concerned. Whereas the first defendant in the written statement would totally deny the factum of P.W.1 having been present at the Sub-Registrar's Office.
30. The plaintiff by examining himself as P.W.1 along with P.W.2 and P.W.3, categorically established that he was very much present on 13.07.1989 as directed by the first defendant earlier.
31. The learned Counsel for the third defendant would draw the attention of this Court to the deposition of P.W.1 during chief examination itself that on on 13.07.1989, he was going between two Sub-Registrar's Offices without knowing to which Office he had to be present. As highlighted by the learned Advocate for the plaintiff, both the Sub-Registrar's Offices are in Karaikudi only nearby to each other.
32. The preponderance of probabilities would govern the adjudication in civil cases.
33. On the one hand, D.W.1 earlier in the written statement took the stand that the plaintiff was not at all present on 13.07.1989 and that he committed default, but during trial, she would admit the presence of P.W.1 at the Sub- Registrar's Office on 13.07.1989. The documentary evidence in addition to oral evidence as highlighted supra, would reveal that on 15.07.1989 itself he got the sale deed engrossed on the stamp papers as revealed by Exs.A.15 to A.17.
34. The learned Counsel for the third defendant canvassing the case of the first defendant would contend that had really the plaintiff was ready and willing to get the sale deed executed even from the morning of 13.07.1989 as claimed by him, he should have purchased the stamp papers even on 13.07.1989 itself for which the explanation from P.W.1 was to the effect that on that day, stamp papers were not available and P.W.2, the document writer would also corroborate his evidence.
35. In fact, it is the case of P.W.1 that only at about 04.00 p.m., the first defendant came to the Sub-Registrar's Office and at that time, P.W.2 told that stamp papers were not available. Now, the expectation on the side of the third defendant is that P.W.1 should have got the stamp papers already purchased. However, in the facts and circumstances of this case, such a plea by the third defendant appears to be a far-fetched one. P.W.1 purchased the stamp papers on 15.07.1989. Had really P.W.3 did not have had any intention to get the sale deeds executed in his favour, but purely for the purpose of feigning as though he was ready and willing to purchase, then the subsequent events would not have taken shape in the manner it happened.
36. On noticing that on 17.07.1989, the first defendant did not come to the Sub-Registrar's Office concerned, as promised by the first defendant on 13.07.1989 that on 17.07.1989, the plaintiff sent telegram Ex.A.7, narrating as to what actually happened. Thereupon, the first defendant sent Ex.A.8, refutatory telegram accusing the plaintiff as though he allegedly committed default and that he was not having sufficient funds on 13.07.1989 and that on 13.07.1989 the first defendant did not agree to execute the sale deed on 17.07.1989. Thereupon, the plaintiff filed the suit on 19.07.1989 and subsequently, deposited the remaining sale consideration of Rs.80,000/- (Rupees Eighty Thousand only) on 24.02.1989 after obtaining order from the Court on 22.08.1989.
37. Considering the preponderance of probabilities, it is clear from the analysis of evidence supra that the plaintiff was ready and willing to perform his contract. Had really, the plaintiff was not having the remaining part of the sale consideration, he would not have spent money idly in purchasing the stamp papers on 15.07.1989 and getting the sale deeds Exs.A.15 to A.17 prepared.
38. The trial Court in paragraph No.14 of its judgment, would refer to a part of the deposition of P.W.1 erroneously and assumed as though P.W.1 while deposing further on 10.11.1992 before the trial Court stated as though he was having only a sum of Rs.50,000/- (Rupees Fifty Thousand only) and not the entire sale consideration.
39. During arguments, I called upon both the learned Advocates to analyse the deposition of P.W.1 and I also perused it deeply. But, we could see no such deposition as understood by the learned trial Judge. Perhaps the trial Judge might have erroneously understood the deposition of P.W.1 and arrived at such wrong finding.
40. The learned Counsel for the third defendant would argue that there is no presumption that the plaintiff had a sum of Rs.80,000/- (Rupees Eighty Thousand only) on 13.07.1989, as he had not produced any bank Passbook to prove his financial wherewithal, even though P.W.1 stated that the funds were in his wife's account. It is the admitted case of the plaintiff as well as the first defendant and now, the arguments of the third defendant to the effect that it is the case of the plaintiff that he entered into the agreement to sell with one Muthiah relating to the suit property and it was Muthiah who funded him largely; when such is the position, the question of the plaintiff being in a penurious of impecunious circumstances did not arise at all.
41. It is a trite proposition of law that the plaintiff need not in all cases demonstrate his financial ability, by producing the currency or passbook etc and prove beyond all reasonable doubts his financial ability. It should not be forgotten that in this case, the plaintiff also deposited the entire remaining sale consideration in the Court without even waiting for a decree to be passed in his favour.
42. The learned Counsel for the plaintiff appositely by placing reliance on the deposition of D.W.1 would develop his argument to the effect that even as per the case of the first defendant, earlier to 13.07.1989, she took out a draft for a sum of Rs.20,000/- (Rupees Twenty Thousand only) for repaying the amount which she received from the plaintiff as advance under Ex.A.1 and that itself would indicate that she was not ready and willing to perform her part of the contract and that she had already predetermined to rescind Ex.A.1.
43. I could see considerable force in the submission made by the learned Counsel for the plaintiff. The first defendant's plea that the plaintiff was not ready and willing is an afterthought and her pleas are nothing but stooges dished out by her to camouflage and conceal her fault.
44. The trial Court without adverting to all these facts, simply held that the time was essence of the contract, even though it is a well settled proposition of law relating to agreement to sell, the time is not the essence of the contract.
45. The learned Counsel for the third defendant would submit that in all cases, relating to immovable property blindly it cannot be taken that time should not be the essence of the contract, but depending upon the facts of each and every case, time can rightly be taken as the essence of the contract and that this case is one such a case. In support of his contention, he relied on the following decisions:
(i) Sobharam v. Totaram reported in A.I.R (39) 1953 NAGPUR 244.
(ii) Gomathinayagam Pillai v. Palaniswami Nadar reported in AIR 1967 Supreme Court 868.
(iii) K.Appa Rao v. Balasubramania Gramani reported in AIR 1976 MADRAS 70.
(iv) K.Suryanarayana Reddy v. C.Chellayyamma reported in AIR 1989 ANDHRA PRADESH 276.
(v) Chand Rani v. Kamal Rani reported in (1993) 1 Supreme Court Cases 519.
(vi) His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar reported in 1996 (II) CTC 158.
(vii) Seeni Ammal v. Veerayee Ammal reported in 1997 (I) CTC 360.
(viii) K.S.Vidyanadam and others v. Vairavan reported in (1997) 3 Supreme Court Cases 1.
(ix) Vasantha and others v. M.Senguttuvan reported in 1998 (I) CTC 186.
(x) V.B.Dharmyat v. Shree Jagadguru Tontadrya reported in (1999) 6 Supreme Court Cases 15.
(xi) S.Maruthai and another v. Gokuldoss Dharam Doss and four others reported in 1999 (III) CTC 724.
(xii) Indravathi v. Kamala reported in 2000 (IV) CTC 278.
(xiii) Nalluswamy Reddiar v. Marammal and 5 others reported in 2000 (I) CTC 484.
(xiv) M.M.S.Investments v. Veerappan reported in 2000 (I) CTC 538.
(xv) Govindappa Naidu v. C.Sidda Chetty and others reported in 2003-3- L.W.479.
(xvi) M/s.P.R.Deb & Associates v. Sunanda Roy reported in AIR 1996 SUPREME COURT 1504.
46. The perusal of the aforesaid decisions would clearly indicate that depending upon the facts of each and every case, it could rightly be taken that time is the essence of the contract relating to the immovable property. Placing reliance on those decisions, the learned Counsel for the third defendant would put forth his argument unconvincingly that the very fact that by Ex.A.4, the defendant intended that 11.00 a.m. on 13.07.1989 should be the final time limit for getting the sale deed executed by the plaintiff from the first defendant, is sufficient to hold that time was the essence of the contract.
47. The learned Counsel for the plaintiff would convincingly argue that even such specification of time as 11.00 a.m., cannot be taken as the one that both sides agreed that time should be the essence of the contract. The concept 'time is the essence of the contract' cannot be inferred by mere wordings. Simply because, certain time limit is fixed in an agreement to sell, one cannot jump to the conclusion that time is the essence of the contract relating to immovable property. Over and above such prescription of time limit, there should be other proven circumstances to countenance that time is the essence of Contract.
48. The learned Counsel for the plaintiff cited the recent decision of the Honourable Apex Court in Balasaheb Dayandeo Naik (Dead) v. Appasaheb Dattatraya Pawar reported in 2008 (1) CTC 530 which would posit the proposition that time is not the essence of the contract relating to the immovable properties.
49. The learned Counsel for the third defendant placing reliance on various documentary evidence such as Exs.B.2 and B.3, would advance his argument that the contractor informed the first defendant's husband that he should pay a sum of Rs.75,000/- (Rupees Seventy Five Thousand only) at the relevant time so as to enable the builders to purchase the property on behalf of the first defendant's husband, so that they would be able to make constructions for the husband of the first defendant. According to them, the time duration tallies between the agreement to sell and Exs.B.2 and B.3. However, the learned Counsel for the plaintiff correctly pointed out that neither in Ex.A.1 nor in the written statement, the first defendant stated those facts. Any amount of evidence unsupported by pleadings should be eshewed.
50. Furthermore, in this case, Exs.B.2 and B.3 have not been proved by examining the contractors and they are only bare communications from those builders to the first defendant's husband.
51. At this juncture, I would also highlight that when Ex.A.1 is silent and the written statement also is silent, the communications between the builders and the first respondent's husband would not enure to the benefit of the first defendant. Moreover, the legal personality of the 'first defendant' is different from that of her husband who was not examined as a witness before the Court. Hence, in this view of the matter, it cannot be held that time is the essence of the contract. Accordingly, these points are decided in favour of the plaintiff.
52. The learned Counsel for the third defendant would develop his argument to the effect that at any rate, the third defendant is a bona fide purchaser for value without notice of the dispute between the parties to Ex.A.1.
53. The learned Counsel for the plaintiff would also correctly draw the attention of this Court to Exs.A.9 and A.10,the paper publications. The perusal of them would reveal that soon after the filing of the suit, the plaintiff made a publication in Dinamalar dated 21.07.1989 to the effect that a third party should not purchase the suit property. Whereas the first defendant through her power agent Natarajan made a counter publication in the same Dinamalar dated 22.07.1989 to the effect that the plaintiff had committed default and hence, he is having no right to prevent any alienation.
54. The fact remains that only by virtue of Exs.A.11 to A.14, subsequently the third defendant purchased from the said Natarajan, the power agent of the first defendant, the properties, so to say, precisely during the pendency of the suit which would attract the doctrine of 'lis pendense'. As such, the sales are hit by the doctrine of 'lis pendense'. The facts would further demonstrate that the first defendant as well as the power agent of the first defendant were fully aware of the pendency of the suit and with that knowledge, they sold.
55. The learned Counsel for the third defendant would argue that the third defendant was not aware of such publications. Inasmuch as, the publications were made in the daily news papers, the third defendant cannot be heard to contend that she was not award of the dispute between the plaintiff and the first defendant.
56. Hence, it cannot be held that the third defendant is a bona fide purchaser for value without notice of it.
57. Furthermore, the crucial point is that the doctrine of 'lis pendense' would be applicable irrespective of the fact whether the purchaser had knowledge about the pendency of the suit or not. Hence, in this view of the matter, the third defendant is not in a better position to canvass the case of the first defendant and try to achieve success in the litigative battle. Accordingly, it is decided that the third defendant has not proved that she is the bona fide purchaser.
58. The learned Counsel for the third defendant would advance his argument by drawing the attention of this Court to the deposition of P.W.1 and his evidence that even before Ex.A.1 got itself fructified in the form of a sale deed emerging in favour of the plaintiff, he had chosen to enter into an agreement to sell with regard to the same property with one Muthiah offered for a higher sale consideration of Rs.1,35,000/- (Rupees One Lakh and Thirty Five Thousand only), which demonstrates that the plaintiff was interested in making money and not very particular in enjoying the suit property by himself and in such a case, specific performance need not be ordered and at the most, compensation could be awarded in favour of the plaintiff. In support his proposition, he relied on the decision of the Honourable Apex Court in Ramshankar v. Kailasgauri reported in AIR 1974 GUJARAT 69.
59. No doubt, the relief of ordering specific performance is a discretionary one. Inasmuch as, it is a discretionary relief, it cannot be taken that such a discretionary relief should not be granted at all. At the whims and fancies, it cannot be denied.
60. Here, as has been already highlighted supra, the subsequent purchasers of the property could not prove that they are having bona fide claim over the suit property. In such a case, I am at a loss to understand as to how the plaintiff who is otherwise entitled to get the sale deed executed, should be deprived of it by ordering that he should be satisfied by obtaining damages from the persons concerned.
61. Each and every case has to be analysed based on its own merits. Here, my finding above would be indicative of the fact that the first defendant even before 13.07.1989, the date for executing the sale deed, determined to rescind the contract and thereby exposed herself. The doctrine of 'lis pendense' is applicable as against the third defendant and other purchasers. Over and above that, there is nothing to prove that the third defendant is a bona fide purchaser for value without notice.
62. In such view of the matter, the relief as sought by the third defendant orally that the plaintiff could be compensated instead of specifically granting the relief of specific performance, cannot be countenanced and upheld.
63. I could see no merit in the contention of the third defendant. However, without considering all these salient features involved in this case, the trial Court caught the wrong end of the stick and consequently, fell into error in simply assuming as though time was essence of the contract and that the plaintiff was not ready and willing.
64. In the result, this appeal is allowed, setting aside the judgment and decree dated 15.12.1992 in O.S.No.50 of 1989 on the file of the Subordinate Judge, Devakottai, PMT District and the original suit is decreed to the effect that the first defendant shall execute the sale deed transferring the suit property in favour of the plaintiff, failing which the Court shall execute the sale deed. Consequently, connected Miscellaneous Petition is closed. The Parties shall bear their respective costs.
rsb To The Subordinate Judge, Devakottai, PMT District.