Telangana High Court
Smt. T.Rukmini Devi, vs Mr.G.V.R.Sastry, on 12 December, 2023
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
APPEAL SUIT No.268 of 2007
JUDGMENT:
This appeal is filed by the appellant - defendant aggrieved by the judgment and decree dated 21.02.2007 in O.S.No.175 of 2003 on the file of the V Additional District Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar.
2. The parties are hereinafter referred as arrayed before the trial court.
3. The respondent - plaintiff filed the suit for specific performance of agreement of sale dated 26.05.2003 contending that the appellant - defendant was the owner of the suit schedule property i.e. H.No.37-18/72, constructed on Plot No.923 in Survey No.218/1, totally admeasuring 350 square yards situated at Defence Cooperative Housing Society, Malkajgiri, Ranga Reddy District. The plaintiff came to know that the defendant intended to sell the said property through mediators and after negotiations entered into an agreement of sale with the defendant on 26.05.2003 for purchase of the said property for a total sale consideration of Rs.19,50,000/-. An amount of Rs.5,60,000/- was paid by the plaintiff by way of advance and part consideration to the defendant in the following manner:
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Dr.GRR, J as_268_2007 Sl. Date Type of Transaction Amount (in Rs.) No.
1. 26.05.2003 As per agreement Rs.1,00,000/-
2. 28.05.2003 Account Transfer Rs.50,000/-
3. 28.05.2003 Cheque No.044091 Rs.50,000/-
4. 06.06.2003 Account Transfer Rs.1,00,000/-
5. 06.06.2003 Account Transfer Rs.1,00,000/-
6. 06.06.2003 Account Transfer Rs.1,00,000/-
7. 06.06.2003 Account Transfer Rs.60,000/-
Total: Rs.5,60,000/- 4. The plaintiff made all arrangements for obtaining house loan. The
defendant had not cooperated with the plaintiff in getting the loan sanctioned.
However, the plaintiff got the housing loan sanctioned from Canfin Homes Limited. When the plaintiff approached the defendant for execution of sale deed, the defendant went on evading the same and tried to go back from the agreement. The plaintiff got issued a legal notice dated 22.06.2003 to the defendant demanding execution of sale deed. The defendant issued a reply notice dated 11.07.2003 disputing Rs.1,00,000/- payment made by the plaintiff, which was acknowledged by the defendant and incorporated in the agreement of sale itself. In the reply, the defendant demanded for extra payment of Rs.1,00,000/-. As a matter of fact, the plaintiff had to pay only Rs.13,90,000/-, whereas the defendant fraudulently demanded Rs.14,90,000/-. The defendant took a stand that a self-cheque for Rs.50,000/- was given by the plaintiff towards payment of the said Rs.1,00,000/- and that the said cheque could not be encashed for lack of plaintiff's signature on the reverse of the same. The defendant in such a case should have the cheque with her, but she was not 3 Dr.GRR, J as_268_2007 mentioning the number or date of the said cheque and was not coming forward to produce the same. There was no explanation about the remaining Rs.50,000/-. There was no explanation as to why she did not mention in the agreement or in any of the subsequent receipts executed by her about the non- payment of the amount mentioned in the cheque. The said false plea was taken by the defendant only after receipt of notice from the plaintiff. The fact that the defendant had been receiving subsequent payments and went on issuing receipts against them without any demur would show that the earlier Rs.1,00,000/- payment was in fact made by the plaintiff.
4.1. The plaintiff further submitted that he was stationed at Chennai. As soon as the reply was given by the defendant to his counsel at Hyderabad and he came to know about the same, he tried to contact the defendant to explain the discrepancy about the actual payment made by him, but the defendant did not allow the plaintiff to communicate with her and avoided him. The mediator who helped in finalization of the deal had also tried to intervene and settle the matter. While the negotiations were going on for resolving the dispute about payment of Rs.1,00,000/-, the defendant got issued a notice dated 23.07.2003 stating that she unilaterally cancelled the agreement of sale dated 26.05.2003 and offered to pay Rs.4,60,000/- to the plaintiff's representative on production of original agreement. The plaintiff submitted that he was having an account with ICICI Bank. The defendant without his consent or knowledge unilaterally 4 Dr.GRR, J as_268_2007 transferred Rs.4,60,000/- on 06.08.2003 to his account through internet and issued a letter dated 07.08.2003 to that effect. The said unilateral payment was against the offer made by the defendant in her own reply dated 23.07.2003, but she clandestinely paid back part of the amount received by her without the consent of the plaintiff into his account. Thus, the refund of part of the sale consideration was not binding on the plaintiff and it could not have any effect on the validity of the agreement of sale.
4.2. The plaintiff further submitted that the defendant right from the beginning was trying to violate the agreement of sale by not cooperating in obtaining house loan. Inspite of the non-cooperation of the defendant, the plaintiff obtained the loan and was always ready and willing to pay the balance sale consideration. The defendant raised a false dispute about non-payment of Rs.1,00,000/-. Without resolving the said dispute, she tried to cancel the agreement of sale and refunded part of the sale consideration received by her without the consent of the plaintiff, and transferred to his bank account through internet. Thus, the defendant exhibited malafide intention from the beginning and committed breach of the agreement with an ulterior motive and without any justification. The defendant tried to throw the blame on the plaintiff for cancellation of agreement. The plaintiff made a demand for registration of sale deed through his notice dated 22.06.2003 within a period of 45 days. Even otherwise, the time was not the essence of the contract in the agreement. There 5 Dr.GRR, J as_268_2007 was no forfeiture clause or clause for cancellation of the agreement relating to the time. The parties had generally agreed to complete the deal within a period of 45 days. Thus, the defendant had no legal right to cancel the agreement on the ground of completion of 45 days. The defendant had in fact extended the said time through her letter dated 11.07.2003. The said letter contained a dispute about the quantum of balance consideration payable by the plaintiff. Thus, it was a fresh offer for negotiations. The defendant prolonged the negotiations and finally cancelled the agreement. The defendant illegally retained an amount of Rs.1,00,000/- in the above deal. The defendant had been blowing hot and cold and repudiated the admitted payment and tried to rescind the agreement without any justification. The plaintiff was willing to pay the entire balance sale consideration of Rs.18,50,000/-. The plaintiff made number of efforts to convince the defendant even after receipt of notice dated 07.08.2003. The mediator Mr.B.Satish played an important role in settling the deal. He happened to be the attesting witness for the agreement and also tried to convince the defendant and to instill good sense in her. In spite of the efforts made by the plaintiff, the defendant was adamant and committed breach of the agreement, as such filed the suit for specific performance of agreement of sale dated 26.05.2003, and in the alternative prayed for refund of Rs.1,00,000/- together with interest @ 24 % per annum, which was illegally withheld by the defendant from the date of suit till realization.
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Dr.GRR, J as_268_2007
5. The defendant filed written statement admitting that she was the owner of the suit schedule property and that she entered into an agreement of sale with regard to the suit schedule property on 26.05.2003 with the plaintiff for a sale consideration of Rs.19,50,000/-, but denied that an amount of Rs.1,00,000/- was paid as advance on the date of agreement. She contended that the plaintiff handed over a self cheque for encashment and promised to credit further amount of Rs.50,000/- in the account of the defendant and on the said assurance, she executed the agreement of sale and acknowledged the receipt of Rs.1,00,000/- in the said agreement. The self cheque could not be encashed, as the plaintiff had not signed on the reverse of the same. The plaintiff deposited an amount of Rs.50,000/- in the account of the defendant on 26.05.2003 as is evident from the statement of account issued by the bank. The un-encashed cheque was returned to the plaintiff. Since the defendant was not aware of the legal complications, she had not obtained any receipt for the returned cheque nor demanded payment in lieu of the same. The plaintiff had taken undue advantage of the same and issued the notice and filed the suit. There was no payment of Rs.50,000/- on 28.05.2003 through account transfer as mentioned in the plaint. The defendant received cheque bearing No.044091 dated 28.05.2003, but the same was encashed on 30.05.2003. She admitted payment of Rs.3,60,000/- through account transfer on 06.06.2003 and contended that she in all received a sum of Rs.4,60,000/-. She contended that the plaintiff never demanded her for execution of the sale deed and came into contact with her only by issuing a legal 7 Dr.GRR, J as_268_2007 notice through his advocate, as such she evading or denying the execution of sale deed would not arise at all. She further submitted that she agreed to execute the sale deed even after lapse of 45 days, but before 20.07.2003. She never demanded any extra payment as mentioned in the plaint, but only claimed what she was entitled. She further contended that if the version of the plaintiff was that an amount of Rs.1,00,000/- was paid on 26.05.2003 as acknowledged in the agreement, there was no need for him to deposit a further sum of Rs.50,000/- on the same date in her account. The plaintiff had to pay a sum of Rs.19,00,000/- after receipt of Rs.50,000/- on 26.05.2003. The defendant had accepted further payment of Rs.4,10,000/- through transfer of funds and cheque dated 28.05.2003 bearing No.044091.
5.1. She further contended that the plaintiff never contacted her after issuance of notice dated 22.06.2003 nor paid the balance amount of Rs.14,90,000/- even before the extended time up to 20.07.2003. Since the plaintiff did not pay the balance sale consideration within 45 days from the date of agreement or before 20.07.2003, she had withdrawn the agreement of sale and treated it as cancelled and informed the same to the plaintiff through his advocate on 23.07.2003. The plaintiff had not denied the averments of her reply received by his advocate on 11.07.2003. She further contended that the very fact that the plaintiff did not chose to return the amount back to the defendant either through internet or by way of Demand Draft would confirm that the plaintiff had accepted the 8 Dr.GRR, J as_268_2007 contention of the defendant's reply received by his advocate on 11.07.2003. She further contended that the very fact that the plaintiff could get the loan sanctioned would prove that the involvement or cooperation of the defendant was not required for the same. She further contended that the notice dated 22.06.2003 showing the willingness of the plaintiff to get the sale deed registered was received by her on 10.07.2003, after lapse of 45 days fixed for completion of contract. As such, she had every right to repudiate the contract and cancel the agreement. The extra time granted was only to facilitate the advocate to contact his client and the same could not be treated as extension of time or renewal of contract. She further contended that the suit for specific performance was itself bad in law unless the suit was amended to declare the cancellation of agreement of sale as illegal and further contended that since no amount was due to the plaintiff, she was not liable to pay Rs.1,00,000/- and interest thereon. She further submitted that she was not interested in selling the house to anyone and the same was repaired by investing further amounts and prayed to dismiss the suit with exemplary costs.
6. Basing on the said pleadings, the trial court framed the issues as follows:
(i) Whether the plaintiff is entitled for specific performance of agreement of sale dated 26.05.2003?
(ii) Whether the plaintiff is entitled to a direction to the defendant, alternatively, to pay Rs.1,00,000/- together with interest?9
Dr.GRR, J as_268_2007
(iii) To what relief?
7. The plaintiff examined himself as PW.1 and got examined the mediator Mr.B.Satish as PW.2. Exs.A1 to A6 were marked on his behalf. The defendant examined herself as DW.1 and Exs.B1 to B8 were marked on her behalf.
8. On considering the oral and documentary evidence on record, the trial court decreed the suit directing the defendant to execute a registered sale deed in favour of the plaintiff in respect of the suit schedule property either by herself or through her General Power of Attorney (for short "GPA") holder after receiving the remaining sale consideration of Rs.18,50,000/- from the plaintiff within two months from the date of the judgment, with the expenses of the plaintiff and if the defendant failed to do so, the plaintiff was at liberty to obtain the registered sale deed through the process of Court after depositing the sale consideration of Rs.18,50,000/- into the Court.
9. Aggrieved by the said judgment and decree, the defendant preferred this appeal contending that the lower court failed to see that the defendant refunded the entire amount of Rs.4,60,000/- sent to her husband's account through E- banking, as evident from Exs.B7 and B8 and the plaintiff received the same without any demur and the same was also informed to the plaintiff under Ex.A5 dated 07.08.2003. The plaintiff failed to give any reply to the said legal notice issued by her. The plaintiff kept quiet for about six months after sending Ex.A2 10 Dr.GRR, J as_268_2007 legal notice dated 22.06.2003 which itself would disclose that the plaintiff was never ready and willing to perform his part of the contract under Ex.A1. The lower court failed to see that the conduct of the plaintiff was dubious from the beginning and he deliberately issued Ex.A2 legal notice with false allegations of payment of Rs.5,60,000/- and sanction of loan, contrary to the terms of Ex.A1 before the expiry of 45 days to avoid payment, but thereafter kept quiet for about six months. The lower court failed to see that there was no plea made by the plaintiff that any amount was paid before Ex.A1 agreement and there was no plea taken in the plaint with regard to the payment of Rs.50,000/- on 21.05.2003. Therefore, the evidence of PW.1 that an amount of Rs.50,000/- was paid on 21.05.2003 was without any plea and could not be taken into consideration. The lower court failed to see that there was no dispute except with regard to the amount of Rs.1,00,000/- allegedly paid under Ex.A1 agreement. The defendant clearly explained it by saying that it was on account of the trickery played by the plaintiff by giving a self-drawn cheque for Rs.50,000/- without signature on the reverse, and as the same could not be encashed, it was returned to the plaintiff. Nothing was elicited from DW.1 to disbelieve her version. The lower court failed to see that the evidence of PW.2 was contrary to the evidence of PW.1. There was express stipulation of time under Ex.A1 for 45 days, which would show that time was the essence of the contract. The plaintiff's plea under Ex.A2 seeking time to enable him to obtain sale deed was contrary to Ex.A1. The evidence of PW.2 that PW.1 had obtained 11 Dr.GRR, J as_268_2007 loan of Rs.16,00,000/- to Rs.18,00,000/- which was higher than the balance sale consideration would prove that Ex.A2 itself was dubious. The lower court failed to see that the plaintiff could not take the plea that Rs.1,00,000/- was paid under Ex.A1 on 26.05.2003 and at the same time Rs.50,000/- was paid on 21.05.2003, in which case, the total amount would go beyond Rs.6,10,000/-, contrary to his own plea. The statement of PW.2 in his cross-examination that on 21.05.2003, the plaintiff offered a cheque of Rs.50,000/-, but the defendant did not accept the same would also probabilise the defendant's case that an in- effective cheque was given which could not be encashed. The lower court failed to see that Ex.A6 was a fabricated document brought into existence in collusion with PW.2 after the suit was filed. The evidence of PW.1 that four persons including the defendant's husband were present, but he did not know who was the scribe of Ex.A6 would create any amount of doubt about his evidence. The lower court failed to see that the conduct of the plaintiff in giving invalid cheque and the interpolation in Ex.A1 and his rushing with Ex.A2 legal notice before 45 days and serving the same after 45 days and keeping quiet thereafter would create any amount of doubt about his bonafides. The lower court failed to see that though DW.1 reported no objection in her cross-examination for sending Ex.A6 receipt for expert opinion, no steps were taken by the plaintiff for such examination and it was only after the defendant left to USA, he came with an application in a half-hearted manner and got it dismissed without really pressing for it. The lower court failed to see that the 12 Dr.GRR, J as_268_2007 defendant had taken a consistent plea that she received only Rs.4,60,000/- which was apparent by record under Exs.B7 and B8, which were not disputed and she had refunded the amount of Rs.4,60,000/- received by her through E- banking in the same way and further informed the plaintiff about the remittance under Ex.A5 legal notice dated 07.08.2003, but, there was no protest from the plaintiff. He would not have kept quiet afterwards if really there was a shortfall of Rs.1,00,000/- as contended by him. The lower court failed to see that the conduct of the person seeking specific performance must be blemishless and gravely erred in decreeing the suit in favour of the plaintiff. The lower court failed to see that the defendant at the earliest opportunity under Ex.A3 itself stated that the self-cheque for Rs.50,000/- given by the plaintiff could not be encashed and hence returned to him and she had consistently taken the same stand where as the plaintiff had come with a false explanation that Rs.1,00,000/- was paid under Ex.A1, was not paid on 26.05.2003, but was paid on 21.05.2003, which was found false by the lower court itself. The lower court failed to see that the remittances made by DW.1 under Exs.B7 and B8 were through E-banking and erred in finding fault with the defendant without any reason and prayed to allow the appeal.
10. Heard Sri M.V.Durga Prasad, the learned counsel for the appellant and Sri M.V.Suresh, the learned counsel for the respondent. 13
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11. The learned counsel for the appellant contended that there was no dispute with regard to payment of Rs.4,60,000/- by the respondent - plaintiff to the husband of the appellant through account transfer which was mentioned at serial nos.4 to 7 in the plaint. Two payments were shown on 28.05.2003, one through account transfer and other through cheque bearing No.044091. No amount was paid through account transfer on 28.05.2003. Only a cheque bearing No.044091 was received by the appellant - defendant on 30.05.2003 and no amount of Rs.1,00,000/- was paid on 26.05.2003. On the date of agreement, the respondent - plaintiff gave a self-cheque for Rs.50,000/- without attesting his signature on the back of the cheque, as such the same was returned to the plaintiff, but the defendant failed to obtain any acknowledgment of the same. Taking advantage of the acknowledgment made in the agreement of sale by the defendant for receipt of Rs.1,00,000/-, the respondent - plaintiff was contending that Rs.1,00,000/- was paid on the date of agreement of sale. The defendant, even without making any payment, signed on the agreement of sale. Rs.50,000/- was sent through bank remittance on the same night i.e. on 26.05.2003 by the respondent - plaintiff to the account of the defendant. Though the 45 days period which was fixed for payment of the balance sale consideration would expire by 10.07.2023, the appellant - defendant extended the time for another 10 days. She gave the legal notice extending the time for payment of the balance sale consideration to the respondent - plaintiff till 20.07.2023, which would prove the bonafides of the defendant. But, no reply 14 Dr.GRR, J as_268_2007 was given by the respondent - plaintiff or by his counsel to the legal notices marked under Exs.A4 and A5 dated 23.07.2003 and 07.08.2003. The conduct of the respondent- plaintiff was trickery from the beginning. The plaintiff made the defendant to sign on the agreement of sale without actually paying the amount. He gave notice before the expiry of 45 days, but served the same after the expiry of the agreement period. There was no incident pleaded and proved to provoke for issuing Ex.A2 notice. There was no necessity for the plaintiff to plead that time was not the essence of the contract except to avoid it. The respondent - plaintiff wanted to pay the balance money at his convenience. The plaintiff maintained stoic silence from 22.06.2003. Even without issuing any reply to the notices issued by the appellant - defendant marked under Exs.A4 and A5, he filed the suit after four (04) months on 08.12.2003. He tried to create an alibi for non-payment and blamed the defendant as non- communicable, but not replied through any advocate whom he already approached. The plaint and evidence of PWs.1 and 2 were full of contradictions. For claiming alternative relief, the respondent - plaintiff had to prove payment of Rs.1,00,000/-. The respondent - plaintiff for the first time during the trial alleged that he made payment of Rs.50,000/- on 21.05.2003. When the agreement was finalized only on 26.05.2003, any payment could not be made prior to that date. The plaintiff failed to prove his "readiness and willingness" in payment of balance sale consideration and relied upon the judgments of the Hon'ble Apex Court in I.S.Sikandar (Dead) by LRs. v. 15
Dr.GRR, J as_268_2007 K.Subramani and Others 1, Mohinder Kaur v. Sant Paul Singh 2, Lourdu Mari David and Others v. Louis Chinnaya Arogiaswamy and Others 3 , T.Jagannadam (Died) and Another v. Akkineni Radhakrishna and Another 4 , M.N.Mohammad Mirza @ Mirza v. B.Subhan Saheb 5 , Atma Ram v. Charanjit Singh 6, Kamal Kumar v. Premlata Joshi and Others 7, Shenbagam and Others v. KK Rathinavel 8 , C.S.Venkatesh v. A.S.C.Murthy 9.
12. The learned counsel for the respondent on the other hand contended that the agreement of sale marked under Ex.A1 would disclose that the appellant - defendant had acknowledged receipt of Rs.1,00,000/-. When the defendant was contending contrary to the written recitals of the document, the burden lies upon her to prove the same. No specific plea was taken by the defendant in Ex.A3 notice that she was forced to sign on Ex.A1. The defendant had taken a specific defence that she returned the cheque to the plaintiff through PW.2, but no such plea was taken by her in her written statement. The plea taken by her in her written statement was that the respondent - plaintiff had given a self-cheque which was not signed on the back, but no evidence was produced by her to 1 (2013) 15 SCC 27 2 (2019) 9 SCC 358 3 (1996) 5 SCC 589 4 1997 (6) ALD 261 (DB) 5 1993 (3) ALT 634 (DB) 6 (2020) 3 SCC 311 7 (2019) 3 SCC 704 8 2022 SCC Online SC 71 9 (2020) 3 SCC 280 16 Dr.GRR, J as_268_2007 prove the same. The details of the cheque number were not mentioned by her. Time was not the essence of the contract. The defendant could not unilaterally fix the time as essence of the contract in a subsequent notice. The plaintiff issued Ex.A2 notice before the expiry of 45 days and informed that he was ready and willing to perform his part of the contract by paying the balance sale consideration. The respondent - plaintiff had also applied for housing loan and the same was sanctioned, which would prove that he was having capacity to pay the balance sale consideration. There was no plea taken by the defendant that the plaintiff had no capacity to pay the balance sale consideration or that the plaintiff had not expressed his "readiness and willingness" to pay the balance sale consideration. No issue was framed by the trial court on these aspects or no ground was raised in the appeal. No defence was taken that loan was not sanctioned or that any hardship would be caused to the defendant in executing the agreement of sale due to escalation of price and relied upon the judgments of the Hon'ble Apex Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri and another 10 and of the Constitutional Bench Judgment in Chand Rani (Smt.) (Dead) by LRs. v. Kamal Rani (Smt.)(Dead) by LRs. 11 , P.Purushottam Reddy and another v. M/s.Pratap Steels Limited 12,P.S.Ramakrishna Reddy v. M.K.Bhagyalakshmi and Another 13, 10 AIR 1977 SC 1005 11 (1993) 1 SCC 519 12 2002 (2) ALT (SC) 14 (SB) 13 AIR 2007 SC 1256 17 Dr.GRR, J as_268_2007 V.Pechimuthu v. Gowrammal 14 and of the High Court of Bombay in Smt.Swarnam Ramachandran and another v. Aravacode Chakungal Jayapalan 15 and of the Hon'ble Apex Court in Zarina Siddiqui v. A.Ramalingam @ R.Amarnathan 16, K.Prakash v. B.R.Sampath Kumar 17.
13. Now the points for consideration in this appeal are:
1) Whether time is essence of the contract?
2) Whether the plaintiff is ready and willing to perform his obligations under the contract?
3) Whether the conduct of the plaintiff is blemishless and whether he is entitled for specific performance of agreement of sale dated 26.05.2003?
4) Whether the plaintiff could seek the relief of specific performance of sale without challenging the cancellation of agreement of sale?
5) Whether the plaintiff is entitled for the alternate relief of return of Rs.1,00,000/- with interest?
6) To what result?
P O I N T No.1:
Whether time is essence of the contract?14
AIR 2001 SC 2446 15 AIR 2000 Bombay 410 16 AIR 2015 SC 580 17 2014 (6) ALD 196 (SC) 18 Dr.GRR, J as_268_2007
14. It is well settled 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 against time being the essence of the contract. However, specific performance of contract is an equitable remedy and it has to be ascertained from the terms of the contract whether the parties had specified any time limit within which the contract has to be completed. An intention to make time the essence of the contract must be expressed in unequivocal language. Even, if it is not the essence of the contract, the Court may infer that the contract has to be performed within a reasonable time, if the conditions are evident from the express terms of the contract, from the nature of the property and from the surrounding circumstances for example, the object of making the contract.
15. As seen from the terms of the contract of agreement of sale dated 26.05.2003, the parties agreed that:
1) The seller agreed to sell the schedule property in favour of the purchaser for a total sale consideration of Rs.19,50,000/-.
2) The purchaser has paid an amount of Rs.1,00,000/- to the seller towards part payment of sale consideration and advance. The seller hereby acknowledges the receipt of the same.
3) The balance sale consideration is agreed to be paid by the purchaser within 45 days from the date of the agreement at the time of the execution of sale deed.19
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16. It was also mentioned in the agreement that the seller wanted to sell the schedule property due to her personal necessities and the purchaser came forward to purchase the same subject to the above covenants. The agreement of sale was entered on 26.05.2003 and as per the terms agreed there on an amount of Rs.1,00,000/- was paid towards part payment of sale consideration and advance and the balance amount was agreed to be paid by the plaintiff within 45 days from the date of the agreement i.e. the same would expire by 10.07.2003. But, in the meanwhile, the respondent - plaintiff had issued a legal notice marked under Ex.A2 dated 22.06.2003 stating that he paid an amount of Rs.5,60,000/- towards sale consideration and that he applied for housing loan from Canfin Homes Limited and that loan was sanctioned to a tune of Rs.16,00,000/- under sanction letter dated 12.06.2003 and he wanted to get the sale deed executed by payment of balance sale consideration. As the defendant orally communicated to him that she was not interested in selling house and wanted to cancel the agreement, issued the notice calling upon her to signify her willingness for execution of the sale deed as per the terms of the agreement.
17. To the said legal notice issued by the respondent - plaintiff, the appellant
- defendant issued a reply notice on 11.07.2003 disputing the receipt of Rs.1,00,000/- as mentioned in Para 2 of the agreement. She contended that no payment was made on the date of agreement, but a self-cheque for Rs.50,000/- was handed over to her for encashment as part payment, but the same could not 20 Dr.GRR, J as_268_2007 be encashed as the plaintiff had not signed on the reverse of the cheque as required. She stated that she waited for the entire 45 days from the date of agreement for receipt of balance sale consideration of Rs.14,90,000/-, but the plaintiff had never informed her about his willingness to fulfill his part of the contract within the said period. But, to keep up good relations she stated that, even then she was prepared to execute the sale deed for the same sum of Rs.19,50,000/- provided, the plaintiff would pay the balance amount of Rs.14,90,000/- before 20.07.2003 and get the sale deed registered in his favour.
18. Thus, a further time was granted by the defendant to pay the balance amount. No reply was given by the plaintiff for the said letter dated 11.07.2003. The defendant addressed another letter dated 23.07.2003 to the plaintiff through her counsel stating that as the balance consideration was not paid within 45 days from the date of agreement or even before the extended date i.e. before 20.07.2003, she was not interested to sell the schedule property and further informed that the agreement of sale dated 26.05.2003 would stand withdrawn and asked to depute a representative along with the original agreement to receive the amount of Rs.4,60,000/- received by her. No reply was given by the respondent - plaintiff to the said letter dated 23.07.2003 also. Thereafter, the appellant - defendant vide letter dated 07.08.2003 marked under Ex.A5, stated that since the plaintiff failed to depute his representative for receiving the amount of Rs.4,60,000/-, the defendant transferred the said sum of 21 Dr.GRR, J as_268_2007 Rs.4,60,000/- to the plaintiff's account with ICICI Bank through internet banking on 06.08.2003 and asked to confirm and acknowledge the same and return the original agreement duly cancelled. No reply was given by the respondent - plaintiff to the said letter dated 07.08.2003 also, but filed the suit subsequently on 08.12.2003 (4 months later).
19. The agreement of sale marked under Ex.A1 would specify the time for completion of the balance sale consideration as within 45 days from the date of the agreement. The agreement would also reveal that the defendant intended to sell the property due to her personal necessities. She also extended the time for a further period of 10 days even after the completion of the agreed period. But no reply was given by the plaintiff expressing his willingness to pay the balance sale consideration.
20. The contention of the learned counsel for the respondent - plaintiff was that time was not the essence of the contract and relied upon the judgments of the Hon'ble Apex Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri and Another (cited supra), wherein it was held that:
"5. It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immoveable property it will normally be presumed that the time is not the essence of the contract. (vide Gomathinayagam, Pillai & Ors. v. Palaniswami Nadar) [AIR 1967 SC 868 at Page 871]. It may also be mentioned that the language used in the agreement is not such 22 Dr.GRR, J as_268_2007 as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract."
21. The learned counsel for the respondent - plaintiff also relied upon the Constitutional Bench Judgment of the Hon'ble Apex Court in Chand Rani (Smt.)(Dead) by LRs. v. Kamal Rani (Smt.)(Dead) by LRs. (cited supra), wherein after analyzing the case law on the aspect, it was held therein that:
"25. From an analysis of the above case-law 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:
* From the express terms of the contract; * From the nature of the property; and * From the surrounding circumstances, for example: the object of making the contract."
22. The learned counsel for the respondent - plaintiff also relied upon the judgment of the Hon'ble Apex Court in P.Purushottam Reddy and another v. M/s.Pratap Steels Limited (cited supra), wherein it was held that:
"Time is not the essence of the contract, however parties may intend to make time as essence of the contract."
23. The learned counsel for the respondent - plaintiff also relied upon the judgment of the High Court of Bombay in Smt.Swarnam Ramachandran and 23 Dr.GRR, J as_268_2007 another v. Aravacode Chakungal Jayapalan (cited supra), wherein it was held that:
"Ordinarily, time is not the essence of a contract for the sale of immovable property. The parties, in a given case, may make time the essence either expressly in terms which unmistakably provide that they intended to do so. Alternately, making of time as the essence of a contract may be inferred from the nature of the contract, the property or the surrounding circumstances. A mere stipulation in a contract laying down the time for performance is not sufficient to make time the essence of a contract for sale of immovable property. A party to a contract cannot by his unilateral act make time the essence unless the circumstances are such as would establish that the other party to the contract had delayed or defaulted in the performance of his obligations under the agreement. Moreover, the stipulation of a particular date by which the purchase price is to be paid would not necessarily result in an invalidation of the right of the purchaser if the payment was not effected by that date. So long as the purchaser is willing to make payment on or before the date which was prescribed or within a reasonable time, the ordinary presumption of time not being the essence of the contract for the sale of immovable property would not be displaced."
24. In the present case, the parties had expressly stipulated in clause 3 of the agreement, the time for performance of the contract as 45 days from the date of agreement of sale on 26.05.2003. The respondent - plaintiff though stated that he was willing to make payment on or before the prescribed date and that he obtained housing loan on 12.06.2003, failed to make the payment or expressed his willingness for making the balance payment within the stipulated period or within the extended period. Considering the circumstances of the case, wherein 24 Dr.GRR, J as_268_2007 the defendant intended to sell the property for her personal necessities and the parties had expressly stipulated time as the essence of the contract and the circumstances wherein, the defendant had also extended the time for a further period of 10 days, but the plaintiff remained silent without making any payment or expressing his "readiness and willingness" to make the balance payment, it is considered that time is the essence of the contract. It would also establish that the respondent - plaintiff had delayed or defaulted the performance of his obligations under the agreement by raising a dispute with regard to the payment of Rs.1,00,000/-.
P O I N T No.2:
Whether the plaintiff is ready and willing to perform his obligations under the contract?
25. Section 16 of the Specific Relief Act, 1963 provides certain bars to the relief of specific performance. Section 16(c) of the Specific Relief Act mandates "readiness and willingness" on the part of the plaintiff as a condition precedent for obtaining the relief of grant of specific performance. In a suit for specific performance, the plaintiff must allege and prove continuous "readiness and willingness" to perform the contract on his part from the date of the contract 25 Dr.GRR, J as_268_2007 and the burden is always on the plaintiff. The Hon'ble Apex Court in J.P.Builders and Another v. A.Ramadas Rao and Another 18, held that:
"It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant point of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
26. In His Holiness Acharya Swamiganesh Dassji v. Shri Sita Ram Thapar 19 , a 2-Judge Bench of the Hon'ble Apex Court observed that "readiness" means the capacity of the plaintiff to perform the contract, which would include the financial position to pay the purchase price and to ascertain "willingness", the conduct of the plaintiff has to be properly scrutinized. The Court noted that:
"There is a distinction between "readiness" to perform the contract and "willingness" to perform the contract. By "readiness", it may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized. The factum of "readiness and willingness" to 18 (2011) 1 SCC 429 19 (1996) 4 SCC 526 26 Dr.GRR, J as_268_2007 perform the plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
27. In P.Meenakshisundaram v. P.Vijayakumar and Another 20 , the Hon'ble Apex Court while dealing with a suit for specific performance of contract for sale of an immovable property which had a mortgage over it held that:
"8.As regards suit for specific performance, the law is very clear that the plaintiff must plead and prove his readiness and willingness to perform his part of the contract all through i.e., right from the date of the contract till the date of hearing of the suit. If respondent No.1 was well aware about the encumbrance and the parties had chosen that the balance consideration be paid to the appellant before 20.03.2001 so that the sale deed could be registered without any encumbrance, it was for respondent No.1 to have taken appropriate steps in that behalf for completion of transaction. As a matter of fact, the first step thereafter was six months after the deadline namely on 22.09.2001 when the communication was sent along with amount of Rs.10 lakhs. The written submissions filed on behalf of respondent No.1 also do not indicate any steps till this time so as to say that he was all the while ready and willing to complete the transaction."
28. In order to demonstrate his "readiness and willingness" to perform the contract, the respondent - plaintiff alleged that he issued a legal notice vide Ex.A2 stating that the loan was sanctioned to a tune of Rs.16,00,000/- under 20 (2018) 15 SCC 80 27 Dr.GRR, J as_268_2007 sanction letter dated 12.06.2003 and that he wanted to get the sale deed executed by payment of balance sale consideration. But, the respondent - plaintiff failed to file the loan sanction letter before the Court. The same was not marked as an exhibit by the plaintiff. The respondent - plaintiff had not filed any statement of his bank account to show that the balance amount was available with him. It was reported by the learned counsel for the appellant that even after the decretal of the suit, the respondent - plaintiff had deposited the balance amount, but had immediately withdrawn the same.
29. The learned counsel for the respondent - plaintiff contended that no plea was taken by the defendant with regard to the plaintiff's "readiness and willingness" to pay the balance sale consideration within the stipulated time and that no issue was framed and no ground was raised in the appeal that the plaintiff had no capacity to pay the balance sale consideration.
30. But, as rightly contended by the learned counsel for the appellant, statutory requirements need not be pleaded and whether pleaded or not, discretion has to be exercised by the Court to see whether there was "readiness and willingness" on the part of the plaintiff to pay the balance sale consideration. Mere plea of readiness and willingness on the part of the plaintiff is not sufficient without proof. There is no proof that the plaintiff has ability to pay the balance sale consideration inspite of Ex.A2 notice and the reply given by the defendant under Ex.A3. The plaintiff never showed his 28 Dr.GRR, J as_268_2007 eagerness or readiness to perform his part of the contract. His stoic silence after Ex.A3 and after refund of money for months together, is fatal to his own case. He failed to file any evidence to show that loan was sanctioned and that he was ready and willing to pay the balance sale consideration. As such, the point No.2 is also answered in favour of the appellant - defendant as against the respondent
- plaintiff holding that the plaintiff failed to prove his "readiness and willingness" to perform his obligations under the contract. P O I N T No.3:
Whether the conduct of the plaintiff is blemishless and whether he is entitled for specific performance of agreement of sale dated 26.05.2003?
31. As the grant of specific performance is an equitable relief, the conduct of the plaintiff should be unblemished to grant the said relief. The plaintiff issued Ex.A2 legal notice on 22.06.2003 calling upon the defendant to execute the sale deed as per the terms of the agreement within 15 days from the date of receipt of the notice. Though the notice was dated 22.06.2003, it was sent to the defendant by speed post and was received by her on 10.07.2003. As the 45 days period would expire by 10.07.2003, the plaintiff chose to send the notice to the defendant only by that date so as to buy another 15 days time for payment of balance sale consideration. Though the plaintiff was a resident of Chennai, the notice was sent by the counsel representing the plaintiff from Secunderabad. As 29 Dr.GRR, J as_268_2007 such, it would not take so much time from 22.06.2003 to 10.07.2003, when sent by speed post. No incident of provocation was stated by the respondent - plaintiff for issuing the notice on 22.06.2003 calling upon the defendant to signify her willingness for execution of the sale deed either in the legal notice marked under Ex.A2 or in the plaint. The notice marked under Ex.A2 would blame the defendant that she orally communicated that she was not interested in selling the house and that she intended to cancel the agreement. If the defendant really communicated the same to the plaintiff, no such details like when it was communicated and through whom it was communicated was not stated by the plaintiff. If the defendant really intended to cancel the agreement, she would not have extended the time period for further 10 days, for payment of balance sale consideration, as stated by her in her reply notice marked under Ex.A3. The conduct of the plaintiff in throwing the blame on the appellant - defendant that she is not cooperative for sanction of loan, as stated in the plaint and throwing the blame on the defendant that she was non-communicable appears only to create an alibi for non-payment of the balance amount within the stipulated period. As rightly contended by the learned counsel for the appellant - defendant, there was no term stipulated in the agreement that the defendant has to co-operate with the plaintiff for obtaining the house loan.
32. PW.1 also stated in his cross-examination that the defendant did not cooperate for getting house loan, as she had not provided with Nil EC, sanction 30 Dr.GRR, J as_268_2007 plan and not permitted inspection of house by bank officials, etc. But admitted in his cross-examination that without the above documents itself, Canfin Homes Limited sanctioned loan to him. He also admitted that he had not filed loan sanction order or copy issued by Canfin. The same would disclose that he could obtain housing loan from Canfin without the above documents as contended by him, but simply throwing the blame on the defendant about her non-cooperation in obtaining the loan.
33. If the defendant was not communicable to him, he could have addressed a letter through his advocate as he had already issued notice to her vide Ex.A2. But, not issuing reply to Exs.A3 to A5 and remaining silent would show that the conduct of the plaintiff is not unblemished. The plaintiff who approaches the Court seeking an equitable relief must prove his conduct blemishless. But all these aspects pointed above would prove that the conduct of the plaintiff is not unblemished and that he is not entitled for specific performance of agreement of sale dated 26.05.2003.
P O I N T No.4:
Whether the plaintiff could seek the relief of specific performance of sale without challenging the cancellation of agreement of sale?
34. The learned counsel for the appellant - defendant contended that the plaintiff is not entitled for specific performance of agreement sale without 31 Dr.GRR, J as_268_2007 challenging the cancellation of termination of agreement of sale and relied upon the judgment of the Hon'ble Apex Court in I.S.Sikandar (Dead) by LRs. and Others v. K.Subramani (cited supra), wherein it was held that:
"37. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law.
38. Therefore, we have to hold that the relief sought for by the plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law."
35. He also relied upon the judgment of the Hon'ble Apex Court in Mohinder Kaur v. Sant Paul Singh (cited supra), wherein also as per the facts of the said case, the agreement was cancelled by the appellant on 01.09.1989 and the consideration already paid confiscated under intimation to the respondent and the respondent never challenged the communication of cancellation. The Hon'ble Apex Court by relying upon the judgment in I.S.Sikandar (Dead) by LRs. and Others v. K.Subramani (cited supra), held that:
"9. We are of the considered opinion that merely because the respondent may not have been satisfied by the intimation given by the appellant regarding release of the property from mortgage, 32 Dr.GRR, J as_268_2007 it cannot be construed as readiness and willingness on part of the respondent and his capacity to perform his obligations under the agreement, particularly when he is stated to have subsequently migrated to America and in which circumstance he executed the power of attorney in favour of PW1. The relief of specific performance being discretionary in nature, the respondent cannot be held to have established his case for grant of such relief. The conclusions of the High Court, both on aspects of readiness and willingness of the respondent and lack of due intimation by the appellant to the respondent regarding redemption of the mortgage are held to be unsustainable."
36. As seen from the facts of this case, the defendant after issuing notice to the plaintiff extending the time for payment of balance sale consideration after the 45 days time stipulated in the agreement is completed and as the plaintiff did not come forward to comply his obligation cancelled the agreement of sale dated 26.05.2003 and returned the money paid by the plaintiff under the agreement. Though the plaintiff contended that it was unilateral cancellation, without challenging the same, whether he could file a suit for specific performance is the moot question raised in this appeal. As seen from the judgments of the Hon'ble Apex Court, it was held that the respondent - plaintiff without seeking a declaratory relief to declare the termination of the agreement of sale as bad in law, could not seek for the relief of specific performance and the trial court committed a mistake in granting the decree for specific performance of agreement of sale dated 26.05.2003. As such, this point is also answered in favour of the appellant holding that the plaintiff could not seek the 33 Dr.GRR, J as_268_2007 relief of specific performance without challenging the cancellation of agreement of sale.
P O I N T No.5:
Whether the plaintiff is entitled for the alternate relief of return of Rs.1,00,000/- with interest?
37. The main dispute between the parties is with regard to the payment of Rs.1,00,000/-. The plaintiff contended that he paid Rs.5,60,000/- towards part sale consideration on different dates as mentioned below:
Sl. Date Type of Transaction Amount (in Rs.)
No.
1. 26.05.2003 As per agreement Rs.1,00,000/-
2. 28.05.2003 Account Transfer Rs.50,000/-
3. 28.05.2003 Cheque No.044091 Rs.50,000/-
4. 06.06.2003 Account Transfer Rs.1,00,000/-
5. 06.06.2003 Account Transfer Rs.1,00,000/-
6. 06.06.2003 Account Transfer Rs.1,00,000/-
7. 06.06.2003 Account Transfer Rs.60,000/-
Total: Rs.5,60,000/-
The defendant objected to the same and stated that she received only Rs.4,60,000/- but not Rs.5,60,000/- as contended by the plaintiff. There was no dispute with regard to the payments mentioned at Sl.Nos.4 to 7 in the plaint. The plaintiff contended that on the date of agreement of sale, he paid Rs.1,00,000/- to the defendant, which was acknowledged by her under Ex.A1. The defendant disputed that she received the said amount. She contended that the plaintiff persuaded her to sign on Ex.A1 agreement dated 26.05.2003 34 Dr.GRR, J as_268_2007 containing a recital of payment of Rs.1,00,000/- by handing over a self-drawn cheque for Rs.50,000/- and promising to credit Rs.50,000/- to her husband's account and took details of the account of her husband. The self-drawn cheque could not be encashed as the plaintiff did not sign on the reverse of the same and hence she returned the un-encashed cheque to the plaintiff. She stated that the plaintiff transferred an amount of Rs.50,000/- to the account of her husband on 26.05.2003 after going to Chennai. Thus, she admitted the receipt of Rs.50,000/- on 26.05.2003, but not Rs.1,00,000/- as acknowledged by her under the agreement of sale. With regard to the amount of Rs.50,000/- alleged to have transferred to the account of her husband on 28.05.2003, she denied the same. She admitted the receipt of cheque No.044091 for Rs.50,000/- , but stated that it was credited on 30.05.2003, but not on 28.05.2003 as alleged by the plaintiff. Thus, the defendant admitted receipt of Rs.4,60,000/- as follows:
Sl. No. Date of Credit Amount (in Rs.)
1. 26.05.2003 Rs.50,000/-
2. 30.05.2003 Rs.50,000/-
3. 06.06.2003 Rs.1,00,000/-
4. 06.06.2003 Rs.1,00,000/-
5. 06.06.2003 Rs.1,00,000/-
6. 06.06.2003 Rs.60,000/-
Total: Rs.4,60,000/-
38. The defendant at the earliest occasion itself in Ex.A3 reply categorically stated that she received only Rs.4,60,000/-. She filed Exs.B7 and B8 statements of account of her husband which would show the remittances made by the 35 Dr.GRR, J as_268_2007 plaintiff through the bank. The said statements of the account were not disputed by the plaintiff in the cross-examination.
39. In Ex.A2, plaint and the chief-affidavit of PW.1 also, the plaintiff categorically pleaded that Rs.1,00,000/- was paid on the date of agreement of sale on 26.05.2003. He did not plead any payment before the date of the agreement on 26.05.2003. But contrary to the said pleadings, the plaintiff had introduced a receipt of Rs.50,000/- under Ex.A6 belatedly after trial. The defendant denied receipt of any amount under Ex.A6. As there is no plea in the plaint or the suit notice under Ex.A2 that any amount was paid on 21.05.2003, no such evidence without plea could be looked into.
40. PW.1 in his cross-examination dated 13.02.2006 stated that he paid Rs.50,000/- on the date of agreement of sale and again stated that on 21.05.2003 he paid Rs.50,000/- in cash to the defendant. A cash receipt was also issued to him by the defendant, but the same was not readily available with him. He stated that he was not aware that for payment of Rs.20,000/- or above, the payment should be made through cheque.
41. He further stated that on 26.05.2003, he paid Rs.50,000/- in cash and another Rs.50,000/- through cheque. The amount of Rs.50,000/- cash was in Rs.500/- denominations. He had taken Rs.50,000/- from his friend B.Satish. 36
Dr.GRR, J as_268_2007
42. The said friend of PW.1 by name B.Satish was examined as PW.2. But, he did not speak about the lending of Rs.50,000/- cash to PW.1 by him.
43. PW.2 in his cross-examination stated that on 21.05.2003, Rs.50,000/- was paid. Then, the plaintiff left for Chennai on the same day. On 26.05.2003, another sum of Rs.50,000/- was paid in cash. On 26.05.2003, the plaintiff left for Chennai and from there he transferred Rs.50,000/- to the account of the husband of the defendant. Subsequently, the plaintiff transferred Rs.4,60,000/- to the account of the defendant.
44. If the above evidence of PWs.1 and 2 is considered, the plaintiff PW.1 had paid Rs.50,000/- on 21.05.2003, Rs.1,00,000/- on 26.05.2003 and Rs.4,60,000/- subsequently. As such, the total amount paid would be Rs.6,10,000/-. The amount paid by the plaintiff as per the version of PWs.1 and 2 should be Rs.6,10,000/- but not Rs.5,60,000/-. But the plaintiff was seeking refund of only Rs.1,00,000/- in the plaint prayer which would show that the plaintiff still sticks to Rs.5,60,000/-, which was set up by him from the beginning. The above contradictions about the payment would clearly support the case of the defendant that no amount was paid by the plaintiff except those reflected in Ex.B8 statement of account. Once the payments alleged by the plaintiff in his pleadings do not match with his evidence, the defendant's case that no amount was paid under Ex.A1 on the date of agreement as recited therein is probobalized.
37
Dr.GRR, J as_268_2007
45. The Hon'ble Apex Court in Parvinder Singh v. Renu Gautam and Others 21, held that:
"An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction. Tyagaraja Vs. Vedathanni [AIR 1936 PC 70] is an authority for the proposition that oral evidence in departure from the terms of a written deed is admissible to show that what is mentioned in the deed was not the real transaction between the parties but it was something different."
46. If any payment was made by the plaintiff prior to the date of agreement on 26.05.2003, he would not have omitted to mention the same in Ex.A1. There was no whisper of the pre-agreement payment in Ex.A2 legal notice issued by the plaintiff or in the plaint or in his chief-affidavit. If such payment was made, it would not have been omitted by the plaintiff. It would disclose the conduct of the plaintiff in taking undue advantage of the recital in Ex.A1. His giving an invalid cheque and rushing with Ex.A2 legal notice, which was given much prior before the expiry of 45 days, but served after expiry of 45 days would create any amount of suspicion about his conduct.
47. Ex.A6 receipt was not filed even during the examination of PWs.1 and 2. It was filed much later. DW.1 denied the signature on Ex.A6 as that of her in her cross-examination dated 27.06.2006.
21
2004 (4) SCC 794 38 Dr.GRR, J as_268_2007
48. The plaintiff filed an application for sending Ex.A6 to the hand writing expert for comparison, but the same was rejected by the trial court as there was no pleading on the side of the plaintiff about the execution of Ex.A6 receipt by the defendant on 21.05.2003 for Rs.50,000/-. The trial court dismissed the said application observing that no amount of evidence could be looked into upon a plea, which was never put forward. The trial court rightly observed that even then, the advocate for the plaintiff did not choose to get the plaint amended, as such, had not placed any reliance upon Ex.A6. The said finding became final, as the same was not challenged by the respondent - plaintiff. As such, no reliance could be placed upon Ex.A6. Thus, the plaintiff failed to prove that he paid Rs.1,00,000/- more than Rs.4,60,000/- refunded by the defendant on 06.08.2003. The defendant remitted the entire amount of Rs.4,60,000/- received by her, as evident from Exs.B7 and B8, which were not in dispute. As such, the plaintiff is not entitled for the alternative relief of return of Rs.1,00,000/- with interest.
P O I N T No.6:
To what result?
49. As the conduct of the plaintiff is blame-worthy from the beginning and as he failed to pay the balance amount within 45 days as stipulated under Ex.A1, and also within the extended period expired on 20.07.2003 and failed to issue 39 Dr.GRR, J as_268_2007 any reply to the notices issued by the defendant marked under Exs.A3 to A5 and accepted the refund of the amount and failed to file the suit immediately after refund of the amount and not sought for any relief to declare the termination of the agreement of sale as bad in law, he is not entitled for the equitable relief of specific performance. The trial court committed an error in decreeing the suit for specific performance of agreement of sale. As such, the same is liable to be set aside.
50. In the result, the Appeal Suit is allowed setting aside the judgment and decree of the trial court in O.S.No.175 of 2003 dated 21.02.2007. No order as to costs.
As a sequel, miscellaneous applications, pending in this appeal if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 12th December, 2023 Nsk.