Madras High Court
S.Saraladevi Surana vs G.S.Sundararaj on 1 July, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
A.S.No.371 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 22.06.2021
PRONOUNCED ON : 01.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.371 of 2005
S.Saraladevi Surana ... Appellant
Vs
1. G.S.Sundararaj
2. Malathi
3. S.Kumar
4. Mahila Catherine Karmel (died)
5 .S.Kirubha Parama Rani
6. Kishore Gnan Sam Karmel
7. S.Kavitha Bagya
8. Wilson Paul
9. Minor Allen Paul
rep by his father, 8th respondent
Mr.Wilson Paul
(R5 to R9 recorded as LRs of the
deceased R4 . Memo recorded (19.11.2020)
Memo SR No.17886/20 vide order of
Court dated 23.11.2020 (SSSRJ)
(Respondents 4 to 9 are brought on record
as LRs of the deceased 1st respondent
viz., G.S.Sundararaj vide Court order
dated 11.04.2019 made in CMP Nos.
9748, 9749 and 9750 of 2016 in A.S.No.371 of 2005.)
(8th respondent appointed as guardian of 9th
respondent viz., Ericson Allen Paul vide
Court order dated 11.04.2019 made in CMP No.9751
of 2016 in A.S.No.371 of 2005) ... Respondents
https://www.mhc.tn.gov.in/judis/
1/26
A.S.No.371 of 2005
PRAYER: Appeal Suit filed under Section 96 of CPC to set aside the
Judgment and Decree dated 13.10.2004 made in O.S.No.77 of 2004 on
the file of the District Judge, Nilgiris at Uthagamandalam.
For Appellant : Mr.M.S.Krishnan
Senior Counsel
for Mr.V.Venkatasamy
For R1 & R4 : Died (Steps taken)
For R2 & R3 : Mr.A.S.Vijaya Raghavan
For R5 to R9 : Mr.Davod Tyagaraj
JUDGMENT
The Appeal suit is filed against the Judgment and Decree dated 13.10.2004 made in O.S.No.77 of 2004 on the file of the District Judge, Nilgiris at Uthagamandalam.
2. The third defendant is the appellant herein and respondents 4 to 9 are the legal representatives of the deceased first respondent/plaintiff. The second and third respondents are the defendants 1 and 2. The deceased first respondent filed a suit for specific performance.
3. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.
https://www.mhc.tn.gov.in/judis/ 2/26 A.S.No.371 of 2005
4. The case of the plaintiff is that the first defendant on her behalf and as power of attorney of the second defendant executed an agreement for sale dated 18.03.1992 in favour of the plaintiff, thereby agreeing to sell the suit property for a total sale consideration of Rs.5,00,000/- and paid a sum of Rs.1,05,001/- as advance. On the date of agreement, the plaintiff was put in possession of the suit property and the balance sale consideration was agreed to be paid on or before 18.06.1992. The suit property was an incomplete construction. The plaintiff completed the construction by spending Rs.1,12,306/- and let out to the suit property to the tenants. Subsequently, on various dates between 16.04.1992 to 03.03.1993, the first and second defendants have received a sum of Rs.2,35,000/- towards part of the sale consideration and, totally a sum of Rs.2,95,000/- upto 03.08.1993, in which a sum of Rs.75,000/- was received by S.Ravishankar, Ramanan and Natarajan on behalf of the defendants 1 and 2. The time was not the essence of the contract, since the defendants 1 and 2 received balance sale consideration long after 18.06.1992.
5. Thereafter, when the plaintiff is ready and willing to perform his part of the contract, the defendants 1 and 2 had sent a letter dated https://www.mhc.tn.gov.in/judis/ 3/26 A.S.No.371 of 2005 10.08.1994 stating that the agreement was not performed on or before 18.06.1992 and as such they entered into a sale agreement with a third person. Immediately, reply notice was sent on 14.09.1994 and also rejoinder was sent on 30.09.1994 by the defendants. As an after thought, another legal notice was sent on 21.10.1994, and then the plaintiff filed a suit for specific performance.
6. Resisting the same, the first and second defendants filed their written statement stating that the agreement for sale is admitted, but the time was made out as essence of the contract for completion of the sale. They also denied the subsequent payments which were allegedly made by the plaintiff i.e., a sum of Rs.2,95,000/- between 15.04.1992 to 03.08.1993. Further, the payments made to Ravishankar and Natarajan were also denied by the defendants 1 and 2. According to them, the plaintiff was not ready and willing to perform his part of the contract within time as stipulated in the agreement for sale. Therefore, they sent a letter dated 19.08.1994, the plaintiff failed to perform his part of the contract, as such they have entered into an agreement for sale with the third person. They have conveyed the suit property in favour of the third https://www.mhc.tn.gov.in/judis/ 4/26 A.S.No.371 of 2005 defendant on 19.10.1995 and as such, the suit itself is barred by limitation and it is liable to be dismissed.
7. The third defendant filed a separate written statement stating that she purchased the suit property for valid sale consideration by a registered sale deed dated 19.10.1995. The alleged agreement for sale was already cancelled by the defendants 1 and 2 on account of failure of perform his part of the contract and committed default on payment of balance sale consideration. Therefore, prayed for dismissal of the suit.
8. On hearing the rival pleadings, the learned trial Judge framed the following issues for determination of the suit :-
"1.Whether the suit agreement dated 18.03.1992 is true, valid and binding on the defendants ;
2. Whether the plaintiff was placed on possession of the suit property in part performance of the agreement dated 18.03.1992 ;
3. Whether the construction put up by the plaintiff is unauthorised ;
4. Whether the payments alleged by the plaintiff are true ;
5. Whether the suit is barred by limitation ;
6. Whether the plaintiff is entitled for specific performance as prayed for ;
7. To what relief ;” https://www.mhc.tn.gov.in/judis/ 5/26 A.S.No.371 of 2005
9. On the side of the plaintiff, he examined P.Ws.1 to 3 and marked Exs.A1 to A14. On the side of the defendants, they examined D.W.1 and D.W.2 and marked Exs.B1 & B2. On considering the oral and documentary evidences adduced by the respective parties and the submission made by the learned counsel, the Court below decreed the suit in favour of the plaintiff. Aggrieved by the same, the third defendant preferred this Appeal Suit.
10. Mr.M.S.Krishnan, learned Senior Counsel appearing for the appellant/third defendant mainly raised two grounds to set aside the Judgment and Decree passed by the Trial Court :
(i) the suit is barred by limitation ; and
(ii) the plaintiff failed to prove his readiness and willingness to perform his part of the contract.
The suit is barred by limitation under Article 54 of the Limitation Act. It states that the period of limitation for specific performance of contract is three years from the date fixed for performing part of the contract or if no such date is fixed, the period shall begin from the date the plaintiff has notice that the performance was refused. The agreement for sale was entered between the plaintiff and the defendants 1 and 2 on 18.03.1992 https://www.mhc.tn.gov.in/judis/ 6/26 A.S.No.371 of 2005 for a total sale consideration of Rs.5,00,000/- of which Rs.1,12,306/- was paid as advance. The balance sale consideration to be paid by the plaintiff on or before 18.06.1992 and get the sale deed executed in his favour. Therefore, the plaintiff ought to have filed the suit within the period of three years from 18.06.1992, whereas, the suit was filed only on 05.08.1996. Infact, the defendants 1 and 2 had sent a letter dated 19.08.1994, which was marked as Ex.A3 clearly pointed out that the plaintiff breached the agreement for sale and it has come to an end and became unenforceable. They also requested the plaintiff to receive the advance amount and hand over the possession of the suit property. Therefore, the plaintiff failed to file the suit within a period of three years from 18.06.1992. Hence, the suit itself is barred by limitation and liable to be dismissed.
10(i). He further submitted that with regard to the readiness and willingness, the defendants 1 and 2 had sent a letter dated 19.08.1994 (Ex.A3) and 30.09.1994 (Ex.A5) that an agreement for sale is no longer in force. Both the notice were duly received and acknowledged by the plaintiff and it is an evident from Ex.A6- notice issued by the plaintiff. Even then, the plaintiff filed the suit only on 05.08.1996. Though he was https://www.mhc.tn.gov.in/judis/ 7/26 A.S.No.371 of 2005 ready to execute the sale deed as per Exs.A4 and Ex.A6-legal notices, he did not pursue any legal remedy until expiry of three years from the date fixed for performance of the contract. Therefore, the plaintiff was never ready and willing to perform his part of the contract at any point of time. Admittedly, the plaintiff failed to prove his readiness and willingness before the Trial Court and as such, he is not entitled for the decree as specific performance. He also failed to challenge the sale deed executed in favour of the third defendant. Therefore, the suit itself is clearly barred by limitation under Article 54 of the Limitation Act, 1963. The plaintiff failed to prove his readiness and willingness to perform his part of the contract and prayed for dismissal of the suit. In support of his contention, he relied upon the following Judgments :-
(i) AIR 1965 SC 1405 – Madamsetty Satyanarayana Vs. G.Yellogi Rao and ors.
(ii) 1997 (2) SCC 611 – T.L.Muddukrishnan and ors Vs. Lalitha Ramchandra Rao
(iii) 2001 (1) CTC 200 – Pankajam Parthasarathy and 5 ors Vs. Kasturi Guna Singh
(iv) 2009 (5) SCC 462 – Ahmadsahab Abdul Mulla (dead) by Proposed LRs Vs.Bibijan and ors.
https://www.mhc.tn.gov.in/judis/ 8/26 A.S.No.371 of 2005
(v) 2016 (4) CTC 152 – M.Johnson Vs.E.Pushpavalli
(vi) 2020 (4) CTC 798 – V.Suresh Kumar Vs. A.Ramasamy and Ors.
11. The learned counsel for the first and second defendants submitting that as per the agreement for sale dated 18.03.1992, the defendants 1 and 2 agreed to sell the property for the total sale consideration of Rs.5,00,000/- and received a sum of Rs.1,05,001/- as advance. They intended to sell the property only for their need of money over due liabilities and debts. While being so, as per the agreement, the balance sale consideration shall be paid by the plaintiff on or before 18.06.1992. Admittedly, the plaintiff failed to pay the balance sale consideration on or before 18.06.1992. Therefore, the defendants 1 and 2 had sent a letter dated 19.08.1994 informing that the plaintiff failed to pay the balance sale consideration within the stipulated time as per the agreement for sale. Therefore, the agreement for sale has come to an end and became unenforceable enabling them to deal with the property in any manner they choose and that they had entered into an agreement for sale with another party. They expressly revoked the permission given to the plaintiff to supervise the property and called upon him not to enter the property. Therefore, the suit is barred by limitation, since, the time is https://www.mhc.tn.gov.in/judis/ 9/26 A.S.No.371 of 2005 essence of the contract. The plaintiff was never ready and willing to perform his part of the contract and as such, he is not entitled for equitable remedy of specific performance.
11(i) He further submitted that though the subsequent purchaser preferred this appeal, he is entitled to raise the statement, he issued readiness and willingness of the plaintiff. He further submitted that the plaintiff failed to establish the fact that he had already paid a sum of Rs.2,95,000/- to the defendants 1 and 2. Further the payment alleged to have been made by Ravishankar, Ramanan and Natarajan, totally a sum of Rs.75,000/- also not proved by the plaintiff. There are no documents to support the contention of the plaintiff. He also failed to prove the fact that he spent a sum of Rs.1,12,306/- to complete the construction of the suit property by any evidence. The contention of the plaintiff that Article 113 of the Limitation Act will only be applicable to the case on hand and not the first part of Article 54 of the Limitation Act is not applicable is ill founded. Article 54 is specifically incorporated in Part-II -Suits relating to contracts in the schedule of the Limitation Act 1963. Article 113 is incorporated in Part-X-Suits for which there is no prescribed period. When a specific period is prescribed in Article 54, it cannot be contended https://www.mhc.tn.gov.in/judis/ 10/26 A.S.No.371 of 2005 that Article 113 a residuary article will only be applicable to the present case. Even assuming that the alleged balance payments was paid to some other persons, they were never be said to be authorised by the defendants 1 and 2 to receive such payments. The plaintiff also failed to prove the same at any event, the plaintiff is not entitle for the relief of specific performance and the suit is liable to be dismissed.
12. Per contra, the learned counsel for the plaintiff submitted that the defendants 1 and 2 executed an agreement for sale dated 18.03.1992, on receipt of advance for a sum of Rs.1,05,001/- and also the plaintiff was put in possession of the suit property. As per the agreement, the sale to be concluded with a period of three months on or before 18.06.1992. Whereas, the defendants 1 and 2 have received payments subsequent to 18.06.1992 till 03.08.1993. The limitation for filing the present suit would commence only from 1994, since, the defendants 1 and 2 issued letter dated 19.08.1994, which was marked as Ex.A3, thereby revoked the agreement for sale and refused to execute the sale deed in favour of the plaintiff. Therefore, the limitation starts only from 19.08.1994 and the suit was filed on 05.08.1996. He further submitted that insofar as the readiness and willingness are concerned, the plaintiff https://www.mhc.tn.gov.in/judis/ 11/26 A.S.No.371 of 2005 was ready and willing to perform his part of the contract. As per the letter dated 14.09.1994, which was marked as Ex.A4 sent to the defendants, thereby called upon them to fix the date for execution of sale deed dated 10.10.1994 or the date fixed by the defendants on execution of sale deed. Further, rejoinder letter dated 20.07.1995, which was marked as Ex.A7 categorically stated that the plaintiff called upon the defendants 1 and 2 to come and receive the balance sale consideration and execute the sale at any date on or convenience finally by the legal notice dated 15.04.1996. The defendants were called upon to receive the balance sale consideration and execute the sale deed. Therefore, the plaintiff categorically proved his readiness and willingness to perform his part of the contract. As such, against the Trial Court rightly granted decree of specific performance in favour of the plaintiff. In support of his contention, he relied upon the following Judgments :-
(i) 2020 (3) SCC 289 – Vundavalli Ratna Manikyam Vs. V.P.P.R.N.Prasada Rao
(ii) AIR 2021 (SC) 1886 - A.R Madana Gopal Vs. Ramnath Pubications Pvt. Ltd.
(iii) 2008 (4) SCC 464 -Balasaheb Dayandeo Naik Vs. Appasaheb Dattatraya Pawar https://www.mhc.tn.gov.in/judis/ 12/26 A.S.No.371 of 2005
(iv) 2004 (8) SCC 689 – Swarnam Ramachandran Vs.Aravacode Chakungal Jayapalan
(v) 2000 (6) SCC 402 - R.K.Mohammed Udaidullah Vs. Hajee C.Abdul Wahab
(vi) 2015 (1) SCC 705 – Zarina Siddiqui Vs. A.Ramalingam
13. Heard, Mr.M.S.Krishnan, the learned Senior Counsel appearing for the appellant, Mr.A.S.Vijayaraghavan, learned counsel appearing for the respondents 2 & 3 and Mr.David Tyagaraja, learned counsel appearing for the respondents 5 to 9.
14. The points for consideration in this appeal are as follows :
(i) Whether the suit is barred by limitation or not ?
(ii) Whether the plaintiff proved his readiness and willingness to perform his part of the contract ?
(iii) Whether the plaintiff is entitle for alternative relief in respect of repayment of advance amount?
14(i). The learned counsel for the plaintiff submitted that Article 54 of the Limitation Act is not applicable in the case on hand and Article 113 of the Limitation Act is applicable to the present case. The Article 54 is specifically incorporated in Part-II suits relating to contracts in the https://www.mhc.tn.gov.in/judis/ 13/26 A.S.No.371 of 2005 schedule of the Limitation Act, 1963. The Article 113 is incorporated in Part-X suits for which there is no prescribed period. When a specific period is prescribed as above in Article 54 it cannot be said that Article 113 a residuary article will only be application to the present case. Whatever the payment made subsequent to the date stipulated in the contract does not have the effect of extending the period of limitation from which the time for institution of the suit begins to run. If a date for the performance of agreement is fixed or can be inferred from the surrounding circumstances then the first part of the Article 54 of the Limitation Act would only apply.
14(i)(a) The plaintiff filed a suit for specific performance on the basis of the agreement for sale dated 18.03.1992, which was marked as Ex.A2. The total sale consideration was fixed as Rs.5,00,000/- of which a sum of Rs.1,05,001/- was paid as advance. The plaintiff shall pay the balance sale consideration on or before 18.06.1992 and get the sale deed executed and registered in his favour. Admittedly, the plaintiffs failed to pay the balance sale consideration to the defendants 1 and 2, within the time stipulated in the agreement for sale dated 18.03.1992. Therefore, the defendants 1 and 2 wrote a letter dated 19.08.1994, which was https://www.mhc.tn.gov.in/judis/ 14/26 A.S.No.371 of 2005 marked as Ex.A3 to the plaintiff stated that the plaintiff failed to pay the balance sale consideration and they have to comply the terms of contract within the stipulated time instead of several demand made by them and thus committed the breach of the contract.
14(i)(b)In fact, expressly revoked the permission which was already given to the plaintiff to supervise the property and called upon him not to enter the property. The time stipulated in the agreement for sale ended on 18.06.1992 and as such, the plaintiff ought to have filed a suit within a period of three years from 18.06.1992. The present suit was filed on 05.08.1996. Thus, the suit was barred by limitation as per the Article 54 of the Limitation Act. Admittedly, the suit was filed after expiry of three years from the date of the time fixed for payment of balance sale consideration and execution of sale deed. On receipt of the letter dated 19.08.1994, the plaintiff replied that he was ready and willing to pay the balance sale consideration and register the sale deed. Thereafter, the defendants 1 and 2 had sent their rejoinder, which was marked as Ex.A5 called upon the plaintiff to receive the advance amount which was paid by him and handed over the possession of the suit property. Even then, the plaintiff failed to file the suit in time.
14(i)(c). In this regard, Mr.M.S.Krishnan, the learned senior https://www.mhc.tn.gov.in/judis/ 15/26 A.S.No.371 of 2005 counsel appearing for the appellant, relied upon the several reported judgments and its relevant paragraphs are extracted hereunder:-
(i) AIR 1965 SC 1405 – Madamsetty Satyanarayana Vs. G.Yellogi Rao and ors, the relevant paragraphs are extracted hereunder :
“10. Mr.Lakshmaiah cited a long catena of English decisions to define the scope of a court's discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems – English and Indian – qua the relief of specific performance. In England the relief of specific performance pertains to the domain of for instituting a suit for the said relief and, therefore, mere delay – the time lag depending upon circumstances – may itself be sufficient to refuse the relief ; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law ; if it is beyond time, the suit will be dismissed as barred by time : in either case, no question of equity arises.”
(ii) 1997 (2) SCC 611 – T.L.Muddukrishnan and ors Vs. Lalitha Ramchandra Rao, the relevant paragraphs are extracted hereunder :
“5.............The Court held thus (Para 18 of AIR) :
It is well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption https://www.mhc.tn.gov.in/judis/ 16/26 A.S.No.371 of 2005 against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language”.
(iii) 2009 (5) SCC 462 – Ahmadsahab Abdul Mulla (dead) by Proposed LRs Vs.Bibijan and ors, the relevant paragraphs are extracted hereunder :
“11.The inevitable conclusion is that the expression “date fixed for the performance” is a crystalised notion. This is clear from the fact that the second part “time from which period begins to run “refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on “when the plaintiff has notice that performance is refused”. Here again, there a definite point of time, when the plaintiff notices the https://www.mhc.tn.gov.in/judis/ 17/26 A.S.No.371 of 2005 refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances.
12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expressing “date” used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits.” The relevant Article of the Limitation Act for the suit for specific performance is Article 54. The Article 54 reads as follows :-
Description of Suit Period of Time from which period Limitation begins to run
54. For specific Three years The date fixed for the specific performance of a performance, or, if no such contract date is fixed, when the plaintiff has notice that performance is refused.
In the above Article the period of limitation for specific performance of the contract is three years. There are two alternative points of time which would be stipulated point for limitation one from the date was fixed for perform of the contract, or if no such date is fixed, when the plaintiff has noticed that performance is refused by the other party. In the case on https://www.mhc.tn.gov.in/judis/ 18/26 A.S.No.371 of 2005 hand, the date subsequently fixed for the performance of the contract as 18.06.1992. Admittedly, the plaintiff failed to perform his part of the contract on or before 18.06.1992. Further, the subsequent payment has no effect while computing the period of limitation. Therefore, the above Judgments are squarely applicable to the case on hand and the suit is barred by limitation. That apart the plaintiff deposed in his cross- examination as follows :
“18.06.92 f;F Kd;dhy; ehd;
gpujpthjpfsplk; nghl;l xg;ge;jg;go gzk;
KGtJk; bfhLj;jpUf;f ntz;Lk; vd;why;
rhpay;y/ tpw;gid xg;ge;jg;go vdf;F ryhf;dk;
bfhLf;ftpy;iybad;why; rhpjhd;/ thrhM.2 go 18/06/1992 f;Fk; xg;ge;j njjpapy; tpw;gid bjhifia bfhLj;jpUf;f ntz;Lbkd;why;
rhpjhd;. fhyh brhj;jpy; ehd; fl;olk;
fl;oapUf;fpnwd;/ gpujpthjpfSf;F brhy;yp tpl;L jhd; ehd; fl;olk; fl;ondd;/ mDkjpia vGj;J K:ykhf gpujpthjpfsplk; bgwtpy;iy/ ePjpkd;wj;jpw;Fk;. gpujpthjpfSf;Fk; ehd; fl;olk;
fl;oa fl;olj;jpw;fhd bjhifiaa[k;
bjhpatpy;iybad;why; rhpjhd;////” It is proved that the plaintiff failed to pay the balance sale consideration within the time fixed as per the agreement for sale. To prove the https://www.mhc.tn.gov.in/judis/ 19/26 A.S.No.371 of 2005 subsequent payments, the plaintiff examined the bank manager as P.W.2. In the cross-examination of P.W.2, he deposed as follows :-
“3.8.93 y; cs;s gjpt[f;F v';fs;
mjpfhhpapd; ifbahg;gk; vJt[k; thrhM/13y;
,y;iybad;why; rhpjhd;/ mJ tpl;Lg;ngha;
,Uf;fpwJ/ thrhM/ 13y; cs;s fhnrhiy
vz; 351278 goahd fhnrhiyahdJ ahUf;F
bfhLj;jJ vd;gija[k; brhy;y ,ayhJ/
me;j fhnrhiyf;F ahh; gzk; bgw;whh;fs;
vd;gJk; thrhM/13I itj;Jf; bfhz;L
brhy;y ,ayhJ vd;why; rhpjhd;/ me;j
fhnrhiyahdJ mf;ft[z;l; bga; fhnrhiyah
my;yJ me;j eguhy; vLf;fg;gl;ljh
vd;gija[k; brhy;y ,ayhJ vd;why; rhpjhd;/
(,jd; mrypd; 1k; gf;fk; Kot[) thrhM/13
go thjpna bry;g; brf; vd;W nghl;L
mtnu gzk; vLj;jpUf;fyhk; vd;why; rhpjhd;/
10 tUlj;jpw;fhd gjpntLfs; eh';fs;
ifahstpy;iy/ Mdhy; me;j gjpntLfs;
v';fs; t';fpapy; jhd; jw;nghJk; ,Uf;fpwJ
vd;why; rhpjhd;/”
Even assuming that the last payment was made on 03.08.1993 as per the Article 54 of the Limitation Act, the suit should have been instituted by 03.08.1996. Whereas, the present suit has been laid on 05.08.1996. Thus the suit filed by the plaintiff is clearly barred by limitation. https://www.mhc.tn.gov.in/judis/ 20/26 A.S.No.371 of 2005 14 (ii). Insofar as, the readiness and willingness on the part of the plaintiff by the letter dated 19.08.1994, which was marked as Ex.A3 and letter dated 30.09.1994, which was marked as Ex.A5, thereby informed the plaintiff that the agreement for sale is no longer in force. Since, the plaintiff failed to perform his part of the contract within the time stipulated in the agreement for sale. On receipt of the same, the plaintiff by a reply dated 14.09.1994 which was marked as Ex.A4 and the legal notice dated 21.10.1994 which was marked as Ex.A6 stated that the plaintiff was ready to register the sale deed within a period of 15 days after the receipt of the notice failing which, the proceedings against for specific performance of the contract in a Court of Law, holding liable for the cost and consequences arising therefrom. Even then, the plaintiff did not take any steps to perform his part of the contract and the delay in proceedings against the defendants clearly establishes that the plaintiff was not ready and willing to perform his part of the contract at any point of time. It is bound and duty of the plaintiff be ready and willing to perform his part of the contract. Admittedly the plaintiff failed to prove the same before the Trial Court.
14(ii)(a) In this regard, the learned Senior Counsel relied upon the several reported judgments and its relevant paragraphs are extracted https://www.mhc.tn.gov.in/judis/ 21/26 A.S.No.371 of 2005 hereunder:-
(i) 2016 (4) CTC 152 - Johnson Vs. E.Pushpavalli, the relevant paragraphs are extracted hereunder :-
“9...........At this juncture, it is to be noted that the readiness and willingness on the part of the plaintiff in performing his part of the contract would consist of several actions at different point of time commencing from the date of the agreement. One of such action showing such readiness and willingness would be the filing of the suit itself within the shortest time immediately after the denial by the other side. In other words, the bonafide of readiness and willingness must be evident apparently from every action of the plaintiff after the agreement. At the same time, it should not be mistaken as if this Court holds that not filing the suit immediately after the denial even though limitation period has not expired, has to be construed as fatal to the case of the plaintiff.”
(ii) 2020 (4) CTC 798 – V.Suresh Kumar Vs. A.Ramasamy and Ors, the relevant paragraphs are extracted hereunder :-
“14.1 In a suit for specific performance, it is for the Appellant/Plaintiff to prove his readiness and willingness to perform his part of the contract. But, there is no iota of evidence to show that the Appellant/Plaintiff was ready and willing to perform his contract. At the time, when the Agreement was entered into between the Appellant https://www.mhc.tn.gov.in/judis/ 22/26 A.S.No.371 of 2005 /Plaintiff and First Respondent/First Defendant, the Appellant/Plaintiff paid' 5,00,000 towards Advance and after the expiry of 90 days specified in the Agreement, he made payment for balance Sale consideration, which would clearly prove that he was not ready and willing to pay the entire amount. Even assuming that there was no Agreement to pay the entire amount, after the expiry of 90 days, he has made part payment. The moment, when the Appellant made part payment after the expiry of 90 days, it is clear that the Appellant/Plaintiff was not ready and willing to perform the Contract with the entire Sale consideration even after the expiry of 90 days. The part payment made by the Appellant to the First Respondent/First Defendant after the expiry of 90 days period would show that the Appellant/Plaintiff was not in a position to pay the entire Sale consideration. As stated above, in a Suit for Specific Performance, it is for the Appellant/Plaintiff to prove always his readiness and willingness to perform the Contract until the time of filing the Suit. But making part payment after the expiry of 90 days would only show that the Appellant/Plaintiff was not in a position to make the entire payment and ultimately, lacks the requirement of readiness and willingness to make payment throughout the Contract period until the filing of the Suit, which is a foremost requirement in a Suit for Specific Performance. This aspect was not dealt with by https://www.mhc.tn.gov.in/judis/ 23/26 A.S.No.371 of 2005 the Court below. On this ground alone, the Suit filed for Specific Performance of Agreement of Sale by Appellant/Plaintiff is liable to be dismissed. However, the Court below apart from finding that the Appellant/Plaintiff was not willing to perform the part of the Agreement, found that the Appellant/Plaintiff was not able to prove identity of the property.” The above judgments are squarely applicable in the case on hand, since, the plaintiff failed to prove his readiness and willingness to perform his part of the contract. Though, the plaintiff alleged to have made payments from 16.04.1992 to 03.03.1993 to the first defendant and other third persons, the plaintiff failed to prove the same before the Court below.
That apart, the defendants 1 and 2 never authorised any person to receive any amount from the plaintiff. Even assuming that the plaintiff made some payments after expiry of the date fixed in the agreement for sale, the subsequent payment has no effect while computing the period of limitation as stipulated in the contract. Therefore, the judgments relied upon by the learned counsel for the first respondent were not helpful to the case on hand.
14(iii) Admittedly, the defendants 1 and 2 received a sum of Rs.1,05,001/- as advance on the date of agreement for sale. In fact, by https://www.mhc.tn.gov.in/judis/ 24/26 A.S.No.371 of 2005 their letter dated 19.08.1994 (Ex.A.3), they called upon the plaintiff to come and collect the advance amount which was paid by the plaintiff and thereby revoked the agreement for sale. Therefore, the plaintiff is entitled to get back the advance amount from the defendants 1 and 2 herein. The suit is dismissed as far as the relief of specific performance and the suit is partly decreed in favour of the plaintiff in respect of the repayment of the advance amount. The defendants 1 and 2 are directed to repay the advance amount of Rs.1,05,001/- (Rupees one lakh five thousand and one only) with interest at the rate of 6% per annum from the date of the agreement for sale till the realisation of the amount.
15. In view of the above points are answered accordingly and the Judgment and Decree passed by the District Judge, Nilgiris at Uthagmandalam in O.S.No.77 of 2004, dated 13.10.2004, is hereby set aside and the Appeal Suit is partly allowed. No order as to costs.
01.07.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lpp
G.K.ILANTHIRAIYAN, J.
lpp
https://www.mhc.tn.gov.in/judis/
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A.S.No.371 of 2005
To
1.The District Judge,
Nilgiris at Uthagamandalam.
2.The Section Officer,
V.R.Section,
High Court, Madras.
Pre-delivery Judgment in
A.S.No.371 of 2005
01.07.2021
https://www.mhc.tn.gov.in/judis/
26/26