Madras High Court
P.R.Ramanathan vs M.K.Ranganathan on 28 March, 2012
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28 / 03 / 2012 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.S.NO.466 OF 2008 P.R.Ramanathan .. Plaintiff Versus M.K.Ranganathan .. Defendant PRAYER: Plaint filed under Order XXIV Rule 2 of Original Side Rules read with Order VII Rule 1 C.P.C., for a judgment and decree against the defendant as follows:- a) for specific performance of the agreement dated 07.12.2007 entered between the plaintiff and the defendant in respect of the schedule mentioned property, directing the defendant to comply with all the terms and conditions of the sale agreement and execute the sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs.33,00,000/- (Rupees Thirty Three Lakhs Only) in respect of schedule mentioned property and in failure to do so get the sale deed executed by this Court; or alternatively directing the defendant to refund the advance amount of Rs.10,00,000/- paid by the plaintiff in pursuance of the agreement of sale dated 07.12.2007 together with interest @ 24% per annum from 07.12.2007 to till the date of repayment in full. b) for cost of the suit including counsel's fee. For Plaintiff : Mr.Anand for Mr.N.Baskaran For Defendant : Mr.R.Bharath Kumar J U D G M E N T
The present suit is filed seeking specific performance of the sale agreement dated 07.12.2007 entered into between the plaintiff and the defendant, in respect of the suit property, directing the defendant to execute the sale deed in favour of the plaintiff, after receiving the balance sale consideration of Rs.33,00,000/-. An alternative prayer is made seeking direction to the defendant to refund the advance amount of Rs.10,00,000/- paid by the plaintiff in pursuant to the sale agreement dated 07.12.2007, together with interest at the rate of 24% per annum, from 07.12.2007 till the actual date of realisation.
2.The averments made by the plaintiff, in the plaint, are as follows:
(a) The suit property measuring 1500 SFT, in Survey No.335/2, "E" Type, Plot No.30, Block No.7, Phase I, Sidco Nagar, Villivakkam, Chennai 49 was settled by the sister of the defendant, in the name of the defendant, under a registered settlement deed dated 28.03.2007, document No.1534 of 2007, registered at Sub-Registrar Office, Konnur, Chennai.
(b) An agreement dated 07.12.2007 was entered into between the plaintiff and the defendant for sale of the suit property. As per the sale agreement, the defendant agreed to sell the suit property, to the plaintiff, for a total sale consideration of Rs.43,00,000/- (Rupees Forty Three Lakhs Only).
(c) On the day of signing of sale agreement, an advance amount of Rs.10,00,000/- (Rupees Ten Lakhs Only) was paid to the defendant, by the plaintiff. It is stated in the sale agreement that the balance sale consideration of Rs.33,00,000/- (Rupees Thirty Three Lakhs Only) shall be paid by the plaintiff within three months from the date of agreement. That is, the balance sale consideration shall be paid by the plaintiff, before 07.03.2008, failing which, there shall be forfeiture of a sum of Rs.1,00,000/- from the advance amount. It is also stated in the sale agreement that if the defendant fails to execute the sale deed on or before the date fixed, i.e. 07.03.2008, he shall pay an amount of Rs.1,00,000/- in addition to the advance amount of Rs.10,00,000/-, to the plaintiff. The agreement also provides that the plaintiff shall bear the expenses for the execution of the sale deed.
(d) According to the plaintiff, he repeatedly requested and demanded the defendant to receive the balance sale consideration and execute the sale deed in his favour, as per the terms of the sale agreement dated 07.12.2007, but the defendant was protracting the same, for the reasons best known to him.
(e) The plaintiff averred that he was always willing and ready to purchase the suit property and despite several requests were made by him, the defendant did not come forward to execute the sale deed in his favour.
(f) The plaintiff also averred that he requested the defendant to receive the balance sale consideration and execute the sale deed on 16.04.2008, and the defendant agreed for the same. On that day, the plaintiff made arrangements and possessed of necessary funds for payment of balance sale consideration, as per the terms of the sale agreement. However, the defendant failed to come on that day to the Registrar's office, to execute the sale deed. Hence, the plaintiff deposited the remaining sale consideration along with registration charges, in fixed deposit, in the name of the defendant, in the bank account of the plaintiff in Punjab National Bank, Anna Nagar Branch, Chennai. Hence, the present suit is filed.
3.The defendant filed written statement refuting the allegations made by the plaintiff in the plaint.
(a) The defendant admitted the execution of the sale agreement dated 07.12.2007 and also the receipt of advance amount of Rs.10,00,000/-. The defendant averred that the balance sale consideration shall be paid by the plaintiff before 07.03.2008, failing which, there would be a forfeiture of Rs.1,00,000/- from the advance amount and the defendant shall return back the balance amount of Rs.9,00,000/- to the plaintiff. If the defendant fails to perform his part of obligation, according to the terms of the agreement, he shall pay a sum of Rs.1,00,000/- to the plaintiff, in addition to the advance sale consideration of Rs.10,00,000/-.
(b) The defendant further averred that he met the plaintiff during the last week of February 2008 and insisted him to pay the balance sale consideration and to complete the sale before 07.03.2008. But the plaintiff neglected to pay the balance sale consideration and to get the sale deed executed in his favour before 07.03.2008. The defendant further averred that in spite of his personal request, the plaintiff did not make any arrangement for funds, with an intention to drag the transaction.
(c) In those circumstances, the defendant was constrained to send a letter dated 25.03.2008 by RPAD to the plaintiff informing him about the lapse of sale agreement and further demanded the plaintiff, to receive back the sum of Rs.9,00,000/- being refund of advance amount as per the terms of the agreement within 15 days. The said letter was duly received by the plaintiff on 26.03.2008. However, the plaintiff failed to send reply to the defendant's letter dated 25.03.2005 and also failed to comply with the demand made by the defendant.
(d) Further, in the written statement, the defendant pleaded that time is the essence of contract, since a specific date was mentioned in the sale agreement. But the plaintiff was not willing to perform his part of obligation.
(e) The defendant averred that the allegation of the plaintiff that he made repeated requests and demanded the defendant to receive the balance sale consideration, but the defendant was protracting the same, is absolutely false.
(f) The defendant also averred that the averment made by the plaintiff that the plaintiff requested the defendant to execute the sale deed on 16.04.2008 and the defendant accepted for the same, but failed to come to the Registrar's officer to execute the sale deed, is totally false and misleading.
(g) Since time is the essence of contract and the plaintiff violated the terms of the contract and committed breach of contract, the plaintiff is not entitled to the relief which he sought for.
(h) It is also averred that the plaintiff approached the Court with unclean hands and thus, he is not entitled to any relief.
(i) The defendant stated that he is ready to refund Rs.9,00,000/- being the advance amount, after deducting Rs.1,00,000/-, towards breach of contract, to the plaintiff. Thus, the defendant sought for dismissal of the suit.
4.Based on the pleadings of by both parties, the following issues were framed in the suit for consideration on 22.11.2010:
"1. Whether the time is the essence of contract?
2.Whether the plaintiff is always ready and willing to perform his part under the sale agreement dated 07.12.2007?
3.Whether the plaintiff is entitled for alternative prayer of recovery of refund of advance amount with interest at the rate of 24% per annum from the date of plaint to till the date of realisation?
4.To what relief, the plaintiff is entitled to?
5.The plaintiff examined himself as P.W.1 and six documents were marked as Exs.P1 to P6. The defendant got examined himself as D.W.1 and two documents were marked as Exs.D1 and D2.
6.Heard the submissions made on either side.
7.The learned counsel for the plaintiff submitted that the plaintiff was always ready and willing to purchase the suit property and he was ready to pay the balance sale consideration, but the defendant failed to come forward to execute the sale deed. The plaintiff had shown his readiness and willingness, by depositing the balance sale consideration, in the name of the defendant, in the bank account of the plaintiff in Punjab National Bank, Anna Nagar Branch, Chennai, on 28.03.2008 itself, which was marked as Ex.P6, on receipt of the letter dated 25.03.2008 of the defendant, which was marked as Ex.D1. Further, the plaintiff also prepared a draft sale deed dated 16.04.2008, which was marked as Ex.P5. According to him, since the plaintiff established his readiness and willingness to perform his part of contract, he is entitled to specifically enforce the sale agreement dated 07.12.2007.
8.In this regard, the learned counsel for the plaintiff heavily relied on a line from the cross examination of D.W.1 and submitted that time is not the essence of contract since D.W.1 himself admitted during cross examination that he waited up to 25.03.2008, thereby extended the date fixed in the agreement from 07.03.2008 to a different date. The learned counsel for the plaintiff submitted that as per Sections 62 and 63 of the Indian Contract Act, 1872, the aforesaid admission of D.W.1 during cross examination amounts to waiver as to the date fixed in the contract.
9.The learned counsel for the plaintiff relied on the following judgments in support of the proposition that the admission made by the defendant, during the cross examination, waiving the date shall be acted upon and the plaintiff is entitled to the relief of specific performance.
(i)JAGAD BANDHU CHATTERJEE [1969 (3) SCC 445]
(ii)CENTRAL BANK OF INDIA VS. V.GURUVIAH NAIDU AND SONS (LEATHER) PVT. LTD. [AIR 1992 MADRAS 139]
(iii)DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD. VS. SAMIR CHANDRA CHAUDHARY [2005 (4) LW 498]
10.On the other hand, the learned counsel for the defendant submitted that the sale agreement dated 07.12.2007 fixed the time limit for performance of the contract as 07.03.2008, and therefore, the contract would get lapsed, after 07.03.2008. In view of the specific date being mentioned for performance in the contract, time is the essence of the contract. In the present case, since the plaintiff was not ready and willing to perform his part of contract, before the date fixed in the contract, the plaintiff is not entitled to seek the relief of specific performance.
11.The learned counsel for the defendant submitted that the plaintiff has deliberately suppressed the letter dated 25.03.2008 written by the defendant informing him that the contract got lapsed, since he failed to perform the same before the date fixed in the contract, the suit has to be dismissed for approaching the Court with unclean hands. The learned counsel for the defendant has taken me through the deposition of P.W.1 and submitted that P.W.1 admitted that the defendant approached him during the last week of February 2008 and demanded him to complete the sale deed, by paying the balance sale consideration.
12.The learned counsel for the defendant further submitted that P.W.1 admitted during cross examination that he received Ex.D1 dated 25.03.2008 and P.W.1 further admitted that he did not send any letter informing that the balance sale consideration was ready and asking the defendant to come to Registrar's office to execute the sale deed.
13.The learned counsel for the defendant submitted that there is no legal evidence in support of the claim of the plaintiff that the defendant agreed to come to the Registrar's office on 16.04.2008, for execution of sale deed. The learned counsel submitted that in reply to the defendant's letter dated 25.03.2008, which was marked as Ex.D1, no letter or lawyer notice was received by the defendant from the plaintiff, prior to the institution of suit.
14.The learned counsel for the defendant submitted that while it was pleaded that the defendant agreed to come to Registrar's office on 16.04.2008, but he failed to come there, P.W.1 deposed during cross examination at two places that P.W.1 went to the Registrar's office on 16.03.2008 forgetting the fact that the date alleged in the plaint is a different one.
15.The learned counsel for the defendant brought to the notice of this Court the deposition of P.W.1 during cross examination on 25.04.2011 that the value of the suit property was around Rs.60,00,000/- (Rupees Sixty Lakhs Only) as on that day.
16.The learned counsel for the defendant also submitted that the original of Ex.P5 was not produced and the name of the plaintiff and the defendant was not shown on Ex.P5. The learned counsel for the defendant relied on the following judgments in support of his contention:
(i) CITADEL FINE PHARMACEUTICALS VS. RAMANIYAM REAL ESTATES P. LTD. [2011 (6) CTC 112]
(ii) BORAMMA VS. KRISHNA GOWDA AND OTHERS [2000 (9) SCC 214]
17.Further it was submitted that the evidence of the defendant shall be read as a whole, along with the written statement and exhibits, and a line could not be picked out from the cross examination, as was sought to be done by the learned counsel for the plaintiff. If the entire evidence of the defendant is read along with the written statement and documents, more particularly Ex.D1, it would categorically establish that the defendant did not waive or modify the date namely 07.03.2008 fixed as the last date for performance of contract, in Ex.P4 dated 07.12.2007.
18.I have considered the submissions made on either side and perused the materials available on record.
19.At this juncture, I have noticed that the main issue namely as to whether the plaintiff is entitled to seek specific performance of the agreement dated 07.12.2007, was not framed. Therefore, the following issue is framed as additional issue no.1:
"1.Whether the plaintiff is entitled to seek specific performance of the agreement dated 07.12.2007?"
ISSUE NOS. I, II AND ADDITIONAL ISSUE NO.1
20.The plaintiff and the defendant entered into the sale agreement dated 07.12.2007. At the time of entering into the agreement, an advance amount of Rs.10,00,000/- (Rupees Ten Lakhs Only) was paid by the plaintiff to the defendant, after agreeing that he shall pay the balance sale consideration of Rs.33,00,000/- within a period of three months and the defendant shall execute the sale deed in that event. Since the contract itself categorically mentioned three months time as the period for performance of the contract and also specifically mentioned "07.03.2008" as the last date, failing which, the contract could get lapsed, I am of the view that time is the essence of the contract, in the case on hand. It is a different matter, if no time limit was fixed, in the contract. But the plaintiff sought to get over the fixation of time in the contract, by arguing that the time limit was waived by the defendant, as the defendant agreed to come to the Registrar's office for execution of sale deed on 16.04.2008. This was pleaded so by the plaintiff, in the plaint. However, the same was not established by the plaintiff, by any acceptable evidence. The plaintiff also sought to argue that the defendant waived the time fixed in the contract, based on the following lines in the cross examination of D.W.1.
"I am waiting for the plaintiff from 07/03/2008 to 25/03/2008 to pay the remaining sale consideration....."
According to the learned counsel for the plaintiff, since the defendant, in his own words admitted that he waited beyond 07.03.2008, to receive the remaining sale consideration, the date fixed in the contract, was waived by the defendant himself. But the learned counsel for the defendant submitted that the line shall be read as "not waiving the date mentioned in the sale agreement" and the entire evidence shall be read and a line could not be picked out, out of context.
21.According to the learned counsel for the defendant, the evidence shall be read along with the written statement and the exhibits marked. In my view, if the entire evidence of D.W.1 is read along with the written statement and the exhibits marked, it would make it clear that the defendant never waived the date as mentioned in the agreement. In Ex.D1 dated 25.03.2008 that was sent by RPAD by the defendant to the plaintiff, the defendant categorically stated that he approached the plaintiff during the last week of February 2008 and demanded the balance sale consideration and to complete the sale before the date fixed in the sale agreement. It is stated that in spite of the same, he did not bother to perform his part of contract and that therefore, the agreement got lapsed. The defendant directed the plaintiff to get back the advance amount of Rs.9,00,000/- within 15 days, as per the terms of the agreement. In this regard, the contents of the letter dated 25.03.2008 [Ex.D1] is extracted hereunder:
VERNACULAR (TAMIL) PORTION DELETED
22.Furthermore, the defendant categorically pleaded in the written statement that the plaintiff should have completed the sale transaction before 07.03.2008, by paying the balance sale consideration, as per the sale agreement. The defendant also pleaded about the letter dated 25.03.2008 [Ex.D1]. In this regard, para 6 of the written statement filed by the defendant, is extracted hereunder:
"6.The Defendant submits that as the plaintiff failed and neglected to pay the balance sale consideration to the defendant and get the sale deed executed in his favour before 07.03.2008, the defendant met the plaintiff in the last week of February 2008 and insisted him to pay the balance sale consideratino and complete the sale before 07.03.2008. In spite of his personal request, the plaintiff did not arrange the funds with an intention to drag the transaction. Therefore the defendant was constrained to send a letter dated 25.03.2008 by RPAD to the plaintiff informing him about the lapse of sale agreement and further demanded the plaintiff to receive back a sum of Rs.9,00,000/- and hand over the documents within 15 days. The said letter was duly served on the plaintiff on 26.03.2008. Having received the said letter the plaintiff neither replied nor complied with the demand."
23.P.W.1 admitted during cross examination about the receipt of Ex.D1 dated 25.03.2008. There is also acknowledgment for the receipt of ex.D1 in Ex.D2. The following is the deposition of P.W.1 during cross examination on 19.04.2011:
"....... It is correct to state that the defendant met me on February and he told me to arrange the balance sale consideration and complete the sale transaction within the stipulated period. It is correct to state that I have received a letter dated 25/03/2008 from the defendant. The witness adds: I did not receive the letter shown to me. The letter shown to me is marked as Ex.D.1. Ex.D.2 is the acknowledgment of the said letter Ex.D.1. I have subscribed my signature in Ex.D2......"
24.As rightly contended by the learned counsel for the defendant, P.W.1 also deposed during cross examination on 19.04.2011 that he did not send any letter in reply to Ex.D1 and expressing his readiness and willingness and asking the defendant to execute the sale deed. The following deposition of P.W.1 during cross examination is extracted hereunder:
"....... I have not sent any letter to the defendant informing that the balance sale consideration is ready and come to the Registrar Office for Registration......"
25.The aforesaid materials establish that the plaintiff failed to perform his part of contract before 07.03.2008.
26.But, the plaintiff sought to get over the date 07.03.2008 fixed in the contract by pleading that the defendant himself agreed to execute the sale deed on 16.04.2008, but failed to come to the Registrar's office and that during cross examination of P.W.1, he admitted that he waited beyond 25.03.2008 to receive balance sale consideration. Hence, the date 07.03.2008 lost its sanctity and time is not essence of the contract due to the waiver.
27.Thus, it is relevant to extract the entire cross examination of D.W.1 that took place on 30.08.2011, which as follows:
"I have approached the plaintiff in respect of purchase of the suit schedule property. We both are negotiated and fixed the sale consideration as Rs.43 lakhs and reduced in writing. The caption of the Ex.P.4 is Sale Deed. The date is mentioned as 07/12/2004 in Ex.P.4. I received Rs.10 lakhs as advance on the same day.
Q: What was mentioned in the Ex.P.4 regarding the possession of the property?
A: I handed over the possession of the property on registration.
The registration should be done on or before 7/03/2008 under Ex.P.4. I have not sent any letter asking the plaintiff to register the document before 7/3/2008. The witness adds: I orally informed the plaintiff. After entering Ex.P.4, agreement nobody approached me for the sale of the suit schedule property. After 7/3/2008 nobody approached me for the sale of the suit schedule property. I sent a registered post on 25/3/2008 to the plaintiff. I have not given any further time as an opportunity to complete the sale in Ex.D.1. I have not contacted the plaintiff after 25/3/2008. I have not stated that the sale deed can be executed and registered after the Tamil New Year to the plaintiff. The plaintiff did not inform me that he is ready and willing to pay the balance sale consideration after receiving Ex.D.1. I have seen the plaintiff in Court. I do not remember the date I have seen him in this Court. Before the expiry of Ex.P.1, I met plaintiff in end of February. He told me that he will arrange the balance sale consideration. I am waiting for the plaintiff from 07/03/2008 to 25/03/2008 to pay the remaining sale consideration......."
28.In more than one place, D.W.1 mentioned that 07.03.2008 was the date fixed as the last date for performance of the contract. Therefore, one line could not be picked out from the cross examination of D.W.1, by the learned counsel for the plaintiff, as if the defendant waived the date fixed in the contract. I am not inclined to agree with the submissions of the learned counsel for the plaintiff. It is well settled that the evidence shall be read as a whole and a line alone could not be picked out. If the entire evidence of D.W.1 is read, it would make it clear that the agreement of Ex.P4 got lapsed after 07.03.2008 and he also sent Ex.D1 dated 25.03.2008 in this regard. While rejecting the submissions of the learned counsel for the plaintiff, I am of the view that the defendant never waived the date as fixed in the contract.
29.In support of the contention that the defendant waived the date fixed in the contract, the judgment of the Honourable Supreme Court in DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., AND ANOTHER VS. SAMIR CHANDRA CHAUDHARY [2005 (4) L.W. 498] relied on by the learned counsel for the plaintiff is not applicable to the facts of this case. In my view, the said judgment far from helping the plaintiff, supports the case of the defendant. In that case, the respondent insured his car with the appellant company therein. As per the conditions of the insurance policy, the appellant insurance company shall pay damages in certain contingencies. If the damage is caused by Flood, Typhoon, Hurricane, Storm, Tempest, Inundation, Cyclone, Hailstorm, Frost, the appellant is not liable to pay damages. The respondent sent a letter before lodging the claim that due to the fall of the branch of a tree that was caused due to storm, the Car got damaged. Thereafter, when the appellant failed to pay the amount as claimed by the respondent, the respondent made a claim before the District Consumer Forum. In the said claim, the respondent categorically pleaded that the damage was caused due to the fall of the branch of a tree, that was caused due to storm. But when the appellant insurance company repudiated the claim, the respondent produced a certificate issued by the Meteorological authority, before the District Consumer Forum. However, the said certificate was not marked and no one from Meteorological Department was examined. The President of the District Forum refused to act on the said document. But two other members accepted the said document and allowed the claim. The matter was taken to the State Forum. The State Forum also accepted the document and confirmed the order. When the matter was taken to the Honourable Supreme Court, the Supreme Court held that the respondent before the Supreme Court having admitted in the claim that there was a storm and that admission would be the best piece of evidence against him and the effect of admission is that it shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may be reasonably be presumed to be true and until the presumption is rebutted, the fact admitted must be taken to be established. The Supreme Court also noted that the document was not accepted before the District Forum and nobody was examined to prove the same. The relevant passage in the said judgment of the Honourable Supreme Court is extracted hereunder:
"11....It was rightly noted by the President of the District Forum in his minority order that the document was not exhibited and it was not clear as to who was the person who had given the certificate, and his authority to issue such a certificate. It is also not clear from the record as to whether the document in question was exhibited before the District Forum and if so, by whom........."
30.On the other hand, the judgment of the Honourable Supreme Court in BORAMMA VS. KRISHNA GOWDA AND OTHERS [2000 (9) SCC 214] relied on by the learned counsel for the defendant, applies to the case on hand. That case was also relating to specific performance of the contract. The Trial Court dismissed the suit. The First Appellate Court confirmed the findings of the Trial Court. However, the High Court of Karnataka reversed the same. The Supreme Court confirmed the judgment of the High Court of Karnataka. The Supreme Court went into the evidence and found that the submissions made by the respondents before the Supreme Court by picking out a sentence namely "I am unable to deposit the amount" to prove that the plaintiff was not ready and willing to perform his part of contract has no merit and thereby came to the conclusion that a line could not be picked out from the evidence to read differently. In this regard, the relevant passage in para 10 of the said judgment is extracted hereunder:
"10.............. In our view it will not be a sound rule of appreciation of evidence to pick up an answer from the cross-examination of a witness and draw inference taking it in isolation. The court must see as to how consistent the testimony of the witness is and as to how that answer fits in with the rest of the evidence and probabilities of the case........"
31.The plaintiff has not established that defendant agreed to execute the sale deed on 16.04.2008, but he failed to come to the Registrar's office, as agreed. As rightly contended by the learned counsel for the defendant, it is self serving version of the plaintiff and that during cross examination at two places, P.W.1 stated the date as 16.03.2008 and not 16.04.2008 as pleaded. Further, in the light of Ex.D1 dated 25.03.2008, I am not inclined to agree with the story of the plaintiff.
32.Therefore, the submission of the learned counsel that once the period fixed in the contract was waived, time is not the essence of the contract and thus, the plaintiff is entitled to the relief of specific performance of contract, is rejected.
33.As rightly contended by the learned counsel for the defendant, the Honourable Supreme Court in CITADEL FINE PHARMACEUTICALS VS. RAMANIYAM REAL ESTATES P. LTD. [2011 (6) CTC 112] held that if the time is the essence of the contract, the purchaser shall establish that he was ready and willing to perform the contract before the date fixed in the contract, otherwise, the agreement got lapsed. In that case, the respondents therein were as the purchasers and they were to complete the sale transaction before one year by paying balance sale consideration. On the expiry of one year, the appellant sent a notice pointing out that the contract got lapsed. This Court decreed the suit. A Division Bench of this Court, while modifying a portion of the decree, confirmed the same in appeal. However, the Supreme Court reversed the judgment of this Court. In my view, the facts are identical to this case and the following paras are relevant for the purpose of this case:-
"36.From the terms of agreement in this case which have been set out in the earlier part of the judgment it is cleat that the time is of the essence and this is clearly stipulated and understood by the parties having regard to the previous correspondence and also having regard to the laid down terms of the contract and especially when the consequence of non-completion of the terms by purchaser within the stipulated time was spelt out in Clause 9.
51.On a combined reading of Section 9 of the Specific Relief Act and Section 55 of the Indian Contracts Act it is clear that in this case the vendor as a promisee, was within its right to terminate the contract by sending the letter dated 4th September, 1996 in terms of Clause 9 of the Contract while returning the advance money of Rs.10,00,000/-. It is clear that the Plaintiff has not discharged its burden within the time specified and is not entitled to a specific performance of the contract.
53.There is another aspect of the matter also. In the instant case by asking for specific performance of the contract, the Plaintiff-purchaser is praying for a discretionary remedy. It is axiomatic that when discretionary remedy is prayed for by a party, such party must come to Court on proper disclosure of facts. The Plaint, which it filed before the Court in such cases must state all facts with sufficient candour and clarity. In the instant case the Plaintiff-purchaser made an averment in the Plaint that the Defendant-vendor be directed to return the advance amount of Rs.10,00,000/- at the rate of 24% interest from the date of payment of the said mount till the realization and an alternative prayer to that effect was also made in the prayer Clause (c)."
34.Furthermore, even as per P.W.1 during cross examination on 25.04.2011 that the price of the land as on that date was Rs.60,00,000/- (Rupees Sixty Lakhs Only) while as per the agreement dated 07.12.2007, the price was Rs.43,00,000/- (Rupees Forty Three Lakhs Only). It is also a relevant factor nowadays while considering the suit for specific performance, particularly when a date is fixed for performance.
35.More importantly, as rightly contended by the learned counsel for the defendant, the plaintiff is not entitled to the discretionary relief as he approached this Court with unclean hands by deliberately suppressing the letter dated 25.03.2008 (Ex.D1) of the defendant.
36.Hence, I am of the view that in the present case, time is the essence of the contract and the plaintiff was not ready and willing to perform his part of contract and the plaintiff is not entitled to the discretionary relief of specific performance of the contract. Issue Nos. I and II are answered accordingly.
ISSUE NO.III
37.In the alternative prayer, the plaintiff sought to recover refund of advance amount with 24% interest per annum. According to the defendant, as per the agreement, the plaintiff is entitled to the refund of Rs.9,00,000/- (Rupees Nine Lakhs) only and not the entire advance amount, since he failed to perform his part of contract before 07.03.2008. A reading of Ex.P4 - sale agreement makes it clear that if the plaintiff fails to comply with the terms of the agreement before 07.03.2008, there was a forfeiture of Rs.1,00,000/- from the advance amount. The learned counsel for the defendant submits that the defendant in his letter dated 25.03.2008 (Ex.D1) expressed his willingness to refund the advance amount, after adjusting Rs.1,00,000/- and he asked the plaintiff to approach him to get the refund. The plaintiff did not send any reply to the defendant's letter dated 25.03.2008 and did not approach the defendant. The learned counsel for the defendant submitted that the defendant would be willing to pay interest also, at a reasonable rate, as fixed by this Court.
38.In the light of the submissions made by the learned counsel for the defendant, I am of the view that the plaintiff is entitled to the refund of Rs.9,00,000/- with 9% interest from 07.03.2008 till the date of realisation. Issue No.III is answered accordingly.
ISSUE NO.IV
39.Since I have held that time is the essence of the contract and the plaintiff is not ready and willing to perform his part of contract, the plaintiff is not entitled to seek for the specific performance of the sale agreement. Furthermore, the plaintiff has suppressed the factum of the receipt of the defendant's letter dated 25.03.2008 (Ex.D1) and he failed to approach this Court with clean hands and therefore, he is not entitled to the equitable relief. However, the plaintiff is entitled to recover Rs.9,00,000/- being the refund of advance amount, with interest at the rate of 9% from 07.03.2008 till its realisation. Issue No.IV is answered accordingly.
40.In the result, the suit is dismissed with respect to specific performance of contract. The suit is decreed with respect to the alternate prayer of recovery of refund of advance amount to the extent of Rs.9,00,000/- (Rupees Nine Lakhs Only) with 9% interest from 07.03.2008 till its realisation. No costs.
TK List of witnesses on the Plaintiff's side:-
P.W.1 - P.R.Ramanathan List of Exhibits marked on the Plaintiff's side:-
Ex.P1 - Notarised copy of sale deed dated 01.09.1997 Ex.P2 - Notarised copy of the settlement deed dated 28.03.2007 Ex.P3 - Original encumbrance certificate for the suit property dated 30.11.2007 Ex.P4 - Original sale agreement entered with the defendant dated 07.12.2007 Ex.P5 - Original draft sale deed to be executed by the defendant in favour of the plaintiff Ex.P6 - Colour xerox copy of the fixed deposit receipt bearing receipt No.SXO670471 dated 28.03.2008 List of witnesses on the Defendant's side:-
D.W.1 - M.K.Ranganathan List of Exhibits marked on the Defendant's side:-
Ex.D1 - Letter sent by the defendant dated 25.03.2008 Ex.D2 - Acknowledgment card TK