Madras High Court
G.Banumithra vs D.Santhakumar on 30 September, 2008
AS.Nos.1011/2008 & 1067/2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 22.11.2022
DELIVERED ON 22.12.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
and
THE HONOURABLE MRS. JUSTICE N.MALA
AS.Nos.1011/2008 & 1067/2009
AS.No.1011/2008
1.G.Banumithra
2.Lokesh Prabhu ... Appellants
Vs.
D.Santhakumar ... Respondent
PRAYER : Appeal suit filed under Section 96 of CPC and under Order
41 Rules 1 & 2 of CPC to set aside the decree and judgment passed by
the learned Additional District Judge, FTC No.1, Chengalpattu dated
30.09.2008.
For Appellants : Mr.R.Subramanian for
M/s.Sasikala Ramadoss
For Respondent : Mr.R.Thiyagarajan
https://www.mhc.tn.gov.in/judis
1
AS.Nos.1011/2008 & 1067/2009
AS.No.1067/2009:-
T.Shanthakumar ... Appellant
Vs.
1.G.Banumithra
2.Lokesh Prabhu ... Respondents
PRAYER : Appeal suit filed under Section 96 of CPC and under Order
41 Rules 1 & 2 of CPC against the judgment and decree against the
judgment and decree dated 30.09.2008 made in OS.No.420/2006 passed
by the learned Additional District Judge, Fast Track Court No.1,
Chengalpattu in disallowing the costs.
For Appellant : Mr.R.Thiyagarajan
For Respondents : Mr.R.Subramanian for
M/s.Sasikala Ramadoss
COMMON JUDGMENT
S.S.SUNDAR, J., (1)The defendants in the suit in OS.No.420/2006 on the file of the Additional District Court cum Fast Track Court No.1, Chengalpattu, are the appellants in AS.No.1011/2008. The plaintiff in the said suit is the appellant in AS.No.1067/2009. Since both the appeals arise out of the same judgment and decree in OS.No.420/2006, both these appeals are heard and disposed of by this common judgment. https://www.mhc.tn.gov.in/judis 2 AS.Nos.1011/2008 & 1067/2009 (2)Since the plaintiff as well as the defendants have filed independent appeals against the judgment and decree of the Trial Court, reference to the appellants would mean defendants and the plaintiff will be otherwise referred to as the respondent.
(3)Brief facts that are necessary for the disposal of the above Appeal Suits are as follows:-
(a)The appellants in AS.No.1011/2008 are the defendants. The respondent in AS.No.1011/2008 who is the appellant in AS.No.1067/2009, filed the suit in OS.No.420/2006 for specific performance of an Agreement of Sale dated 04.01.2006 and for directing the defendants to deliver possession of the suit property to the plaintiff.
(b)The suit property is a substantial property measuring an extent of about 14.10 acres comprised in several survey fields in Vitalapuram Village, Tirukazhukundram Taluk, Kancheepuram District. It is the case of the plaintiff that defendants entered into a Sale Agreement with the plaintiff in respect of the suit property on 04.01.2006. It is further stated that the sale consideration was fixed at the rate of Rs.9100/- per cent and the total sale consideration was arrived at Rs.1,28,31,000/-. On the date of Agreement, the plaintiff paid a https://www.mhc.tn.gov.in/judis 3 AS.Nos.1011/2008 & 1067/2009 sum of Rs.25 lakhs as advance and the receipt of advance was also acknowledged by defendants in the Agreement which is marked as Ex.A1. As per the Agreement under Ex.A1, the sale has to be completed within two months by the plaintiff by paying the balance of sale consideration. However, in the plaint itself the plaintiff has stated that time is not the essence of the contract even though two months time was fixed in the Sale Agreement. It is also stated by the plaintiff that in order to get legal opinion, the defendants had agreed to hand over copies of the documents relating to the suit property. Stating that the defendants have not furnished the copy of the Cancellation Deed dated 24.12.1998 and the Will dated 26.08.1969 said to have been executed by one Thiru.Govindaraja Mudaliar in favour of Thiru.V.G.Kannappa Mudaliar, it is contended by the plaintiff that the plaintiff could not proceed with the sale as contemplated under the Sale Agreement.
(c)It is further stated in the plaint that the plaintiff who measured the suit property during the last week of January 2006, found that there is some shortage in the extent available on ground and approached the defendants and explained it to the husband of the 1 st defendant. However, the plaintiff has stated in the plaint that he expressed his https://www.mhc.tn.gov.in/judis 4 AS.Nos.1011/2008 & 1067/2009 readiness and willingness to pay the balance and the Sale Deed at all material times and that, it was the defendants who evaded to perform their part of the contract in spite of plaintiff's repeated demands and approaches.
(d)The plaintiff issued a notice on 10.05.2006 calling upon the defendants to come and execute the Sale Deed after receiving the balance of sale consideration. The said notice was returned with an endorsement ''left''. It is then stated that the plaintiff sent another notice to one Gajendran, husband of the 1st defendant and father of the 2nd defendant and that the notice was received by the said Gajendran. On 22.05.2006, the defendants sent a letter to the plaintiff with a Demand Draft for a sum of Rs.22,50,000/-. A reply notice was also sent by the defendants on 24.05.2006 through their counsel. Though the defendants in their reply notice stated that the contract has come to an end because of the failure on the part of the plaintiff to pay the balance within the stipulated time as per the Agreement, the plaintiff contended that the defendants have no right to repudiate the contract merely because the balance amount was not paid within two months and that the defendants cannot deduct 10% of the amount which was advanced to the defendants under the https://www.mhc.tn.gov.in/judis 5 AS.Nos.1011/2008 & 1067/2009 Agreement.
(e)The suit was contested by the defendants by filing a detailed written statement by referring to the specific terms of the Agreement. As per the Agreement, it is stated that the plaintiff agreed to pay the balance within a period of two months from the date of Agreement and that, time is the essence of the Agreement. It is contended that the plaintiff failed to pay the balance to finalise the Sale Deed as per the Sale Agreement. It is further contended that the defendants are entitled to put an end to the Agreement and return the advance after deducting 10% of the advance amount in case the plaintiff did not pay the balance amount within the period of two months from the date of Agreement. Reiterating that time was agreed to be the essence of the contract and that the plaintiff did not come forward to pay the balance and finalise the Sale Deed within the period of two months, the defendants stated in the written statement that the plaintiff has committed breach of Agreement and that therefore, the defendants have informed the plaintiff cancelling the Agreement and returned the advance deducting 10% as per the Agreement. It is further contended that there is no subsisting contract. https://www.mhc.tn.gov.in/judis 6 AS.Nos.1011/2008 & 1067/2009
(f)It is indicated that Ex.A1-Agreement did not give any option to the plaintiff to keep the contract alive in case the plaintiff is unable to get Sale Deed registered by paying the balance of sale consideration within a period of two months from the date of Agreement. The defendants have specifically denied the statement that they did not hand over the documents and stated that they were ready to hand over all documents. It is the definite case of defendants that the plaintiff did not ask for any document before the time stipulated in the Agreement.
(g)The Trial Court framed only three issues. The first issue is whether the plaintiff is entitled to specific performance of contract as it is prayed for in the suit ; the second issue is whether time is the essence of contract ; and the third issue is only a formal issue as to what other relief the plaintiff would be entitled to. Before the Trial Court, plaintiff examined himself as PW1 and one V.Ulaganathan as PW2 and marked exs.A1 to A17. 2nd Defendant examined himself as DW1 and his father was examined as DW2. Exs.B1 to B3 were marked by defendants.
(h)The Trial Court combined issues 1 and 2 and came to the conclusion that the time is not the essence of the contract and that https://www.mhc.tn.gov.in/judis 7 AS.Nos.1011/2008 & 1067/2009 the plaintiff is entitled to specific performance of contract. Aggrieved by the judgment and decree of the Trial Court granting the decree for specific performance, defendants have preferred AS.No.1011/2008. Though the suit was decreed in favour of the plaintiff, no cost was awarded. Hence, challenging the portion of the judgment by which the plaintiff was not awarded cost, the plaintiff preferred AS.No.1067/2009.
(4)In AS.No.1067/2009, the plaintiff has raised several grounds. Pointing out that cost of suit should follow the decree, it is contended by the appellant/plaintiff that successful parties are entitled to cost as an incident of decree. Stating that the appellant/plaintiff has paid substantial amount by way of Court fee, the appellant/plaintiff contended that the Trial Court ought to have awarded cost. Referring to several precedents, particularly, the judgments of the Hon'ble Supreme Court in the cases of Tirumalachetti Rajaram V. Tirumalachetti Radhakrishnayya Chetty reported in AIR 1961 SC 1795 ; Hoshiam Shavaksha Dolikuka Vs. Thirty Hoshie Dolikuka reported in AIR 1982 SC 1457 ; Thungabhddra Industries Ltd Vs. Government of Andhra Pradesh rep. By the Deputy Commissioner of Commercial Taxes, Anantapur reported in AIR 1964 SC 1372 ; https://www.mhc.tn.gov.in/judis 8 AS.Nos.1011/2008 & 1067/2009 Jugraj Singh and Another Vs. Jaswant Singh and Others reported in 1970 [2] SCC 386 and Kali Prasad Singh V. Ram Prasad Singh and Others reported in 1974 [1] SCC 182, the learned counsel for the appellant/plaintiff submitted that the cost shall follow the event and that the party who succeed in an action is entitled to get cost of the proceedings as a matter of right and that the plaintiff cannot be deprived of the cost of litigation.
(5)This Court is in entire agreement with the learned counsel for the plaintiff as regards cost. In a suit for specific performance, the plaintiff is liable to pay Court fee on the value of the property as per the Agreement which is sought to be enforced. Therefore, the plaintiff who has valued the suit property at Rs.1,28,31,000/-, has paid the Court fee to the tune of Rs.9,62,325/- under Section 42[a] of the Tamil Nadu Court Fees Act. However, the result of the Appeal Suit in AS.No.1067/2009 will depend upon the decision of this Court in the Appeal filed by the defendants in AS.No.1011/2008. Therefore, this Court proceeded to hear AS.No.1011/2008 and then to decide the appeal in AS.No.1067/2009.
(6)This Court heard the submissions of the learned counsel for the appellants/defendants in AS.No.1011/2008 and the learned counsel for https://www.mhc.tn.gov.in/judis 9 AS.Nos.1011/2008 & 1067/2009 the appellant/plaintiff in AS.No.1067/2009 and also perused the materials placed.
(7)The learned counsel for the appellants in AS.No.1011/2008 submitted that time is the essence of the contract under Ex.A1 dated 04.01.2006 and the finding of the Trial Court that time is not the essence of the suit Agreement is perverse and contrary to the specific terms in the Agreement under Ex.A1. Learned counsel then submitted that the plaintiff has agreed to pay the balance of sale consideration, namely, a sum of Rs.1,03,31,000/- within a period of two months from the date of agreement and that the plaintiff has failed to make the said payment as agreed under the Agreement. Since the defendants/appellants had returned the amount of advance after deducting 10% after the expiry of the Agreement period, he submitted that the Trial Court ought to have held that the contract has been properly rescinded for the breach committed by the respondent/plaintiff. The learned counsel then submitted that the suit for specific performance without a prayer challenging the cancellation of the Agreemet by the defendants is not maintainable. The learned counsel then pointed out that the plaintiff is only a land broker and he has no wherewithal to generate huge amount of money towards the balance of sale consideration. Since the https://www.mhc.tn.gov.in/judis 10 AS.Nos.1011/2008 & 1067/2009 plaintiff was never ready and willing to pay the balance of sale consideration even after the expiry of the sale agreement and he has not produced any documents to prove that he was capable of mobilising funds to honour his obligation under the Agreement, it is submitted that the Trial Court ought to have held that the plaintiff is not ready and willing to perform his obligation under the contract and is wrong in decreeing the suit. It is pointed out that the Trial Court has not framed an issue regarding readiness and willingness. (8)The learned counsel for the appellants/defendants also pointed out that the Trial Court failed to consider the fact that the plaintiff sent the suit notice nearly two and half months after the date specified in the Agreement for payment of balance and that there was a considerable delay of nearly six months in filing the suit for specific performance after cancellation of agreement be defendants. The learned counsel also argued that the suit is also liable to be dismissed on the ground of delay and laches. Referring to the fact that the amount of advance has been returned as stipulated under the Agreement-Ex.A1, learned counsel submitted that great prejudice will be caused to the appellants/defendants and the Trial Court failed to consider the fact that discretion in the present case cannot be exercised in favour of https://www.mhc.tn.gov.in/judis 11 AS.Nos.1011/2008 & 1067/2009 plaintiff/respondent by granting the equitable relief of specific performance. The learned counsel for the defendants also referred to the portions of evidence and submitted that the Trial Court failed to consider the relevant facts and circumstances particularly the assertion of plaintiff in the plaint and in the evidence, interpreting the terms of Agreement quite contrary to the recitals and understandings of the parties at the time of entering into the contract. The learned counsel for the defendants pointed out that the plaintiff who had undertaken to deposit the balance before seeking specific performance did not deposit the money into Court. The learned counsel submitted that the Trial Court failed to consider this aspect. The learned counsel for the appellants/defendants has not seriously objected to the arguments of the learned counsel for the respondent / plaintiff regarding cost. (9) Per contra, learned counsel appearing for the plaintiff interpreted the Agreement under Ex.A1 to infer that time is not the essence of the Agreement. Referring to the subsequent clauses in the Agreement, the learned counsel submitted that the defendants who had agreed to produce title deeds pertaining to the suit properties to facilitate the plaintiff to obtain legal opinion and to measure the property before the conclusion of sale, have failed to come forward to furnish the copy of https://www.mhc.tn.gov.in/judis 12 AS.Nos.1011/2008 & 1067/2009 the Cancellation Deed and the Will which are essential for the plaintiff to get legal opinion. He also submitted that there was deficiency in extent of land and the defendants did not bother to measure the property and make sure that the actual extent is available with the defendants. Stating that there had been a total indifference, inaction, omission and negligence on the part of the defendants, it is submitted by the learned counsel that the plaintiff was constrained to issue Ex.A2-notice through his Advocate and to show his readiness and it was the defendants who not only avoided receiving the notice, but also sent a reply after knowing the contents of the notice. The learned counsel also submitted that having regard to the conduct of the defendants in avoiding performance of the Agreement, the findings of the Trial Court are impeccable and the plaintiff is entitled to the equitable relief for specific performance. On the question of readiness and willingness, the learned counsel for the plaintiff submitted that the plaintiff was always ready and willing to perform his part of contract as indicated in the notice and that, it was the defendants who had been evading to execute the Sale Deed in favour of plaintiff. Since a specific issue was not raised before the Trial Court by the defendants regarding the wherewithal and readiness of the plaintiff, the learned https://www.mhc.tn.gov.in/judis 13 AS.Nos.1011/2008 & 1067/2009 counsel submitted that this Court has no reason to interfere with the findings of the Trial Court.
(10)Having regard to the pleadings of both parties, the findings of the Trial Court and the submissions made by the learned counsels appearing on either side, this Court is of the view that following points arise for consideration in the Appeal filed by defendants:-
A) Whether time is the essence of the suit Agreement under Ex.A1 dated 04.01.2006?
B) Whether the plaintiff has committed breach of the Agreement under Ex.A1 which would enable the defendants to rescind the contract in terms of the Agreement under Ex.A1? C) Whether the plaintiff was ready and willing to perform his part of contract under Sale Agreement dated 04.01.2006? D) Whether the suit is maintainable without asking for a prayer to declare the rescission or cancellation of contract by plaintiff by reply notice as invalid and illegal while seeking enforcement of the Agreement?
E) Whether the plaintiff is entitled to the equitable relief of specific performance?
https://www.mhc.tn.gov.in/judis 14 AS.Nos.1011/2008 & 1067/2009 F) Whether non-deposit of balance of consideration can be considered as a breach of sale agreement?
G) Whether the delay in filing the suit after cancellation of Agreement is fatal and a valid ground to deny specific performance? POINT A:-
(11)The suit Agreement is a simple Agreement of sale reflecting the intention of parties in clear terms. The terms of the Agreement are in a single paragraph in Ex.A1 which are extracted below:-
''.....vd;dbtd;why;. fPnH brhj;J tpguj;jpy;
fz;l g[";ir epy';fisa[k;. mjpyl';fpa
fpzW kw;Wk; nghh; fpzWfs;.
gk;g[brl;Lfs;. kpd; ,izg;g[fs;.
itg;g[j;bjhiffs; kw;Wk; ,jpYs;s
kue;jiy tifawhf;fs; cs;gl xU
brz;l; U:gha;/9.100-= (vGj;jhy;
xd;gjhapuj;J E}W) vd tpiy ngrp fPnH
brhj;J tpguj;jpy; fz;l v';fs; ,Uth;
bgahpYk; mtutu; bgahpy; gj;jpuk;
bra;ag;gl;L v';fs; mDgtj;jpy; ,Ue;J
tUk; bkhj;j tp!;jPuzk; Vf;fh; 14/10
brz;lo
; w;F bkhj;jj; bjhif
U:gha;/1.28.31.000-= (vGj;jhy; U:gha; xU
nfhona ,Ugj;bjl;L ,yl;rj;J Kg;gj;jp
xd;whapuk;) vd Kot[ bra;J eh';fs;
https://www.mhc.tn.gov.in/judis
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AS.Nos.1011/2008 & 1067/2009
j';fSf;nfh. my;yJ j';fsplk;
Mlh;bgw;wth;fSf;nfh. fpiuak; bra;J
bfhLg;gjhf xg;g[f; bfhz;L ehsJ
njjpapy; eh';fs; j';fsplk; Kd;
ml;thd;!; bjhifahf U:gha;/25.00.000-=
(vGj;jhy; U:gha; ,Ugj;ije;J ,yl;rk;)
kl;Lk; j';fsplkpUe;J buhf;fkhf bgw;Wf;
bfhz;nlhk;/ kpFjp bjhif
U:gha;/1.03.31.000-= (vGj;jhy; U:gha; xU
nfhona K:d;W ,yl;rj;J Kg;gj;jp
xd;whapuk; kl;Lk;) ehsJ njjpapy; ,Ue;J
,uz;L khj fhyj;jpw;Fs; brYj;jp
gj;jpug;gjpt[ bra;J bfhs;sntz;oaJ/
nkny fz;l mf;fphpbkz;l; fhy
bfLtpw;Fs; jh';fs; ghf;fp bjhifia
brYj;jp gj;jpug;gjpt[ bra;a
jtWk;gl;rj;jpy; ml;thd;!; bjhifapy;
10# (gj;J rjtPjk;) nghf kPjj;
bjhifia v';fsplkpUe;J jpUk;gg;
bgw;Wf;bfhs;sntz;oaJ// j';fs;
mf;fpbkz;l; fhyj;jpw;Fs; kpFjpj;
bjhifia bfhz;L te;J v';fshy; gjpt[
bra;J bfhLf;f jtWk;gl;rj;jpy; kpFjp
bjhifia rk;ke;jg;gl;l nfhh;lo
; y;
blghrpl; bra;J nfhh;l;lhh; K:yk; fl;lhag;
gj;jpugjpt[ bra;J bfhs;st[k; eh';fs;
rk;kjpf;fpd;nwhk;/ fPnH fz;l
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AS.Nos.1011/2008 & 1067/2009
brhj;Jf;fSf;fhd Legal Opinion–
bgWtjw;fhd midj;J hpf;fhh;L
efiya[k; eh';fs; j';fSf;F jUtjhf
xg;g[f;bfhs;fpd;nwhk;/ nkw;go epy';fis
mse;J bfhLj;j gpd; gj;jpug;gjpt[ bra;J
bfhLf;f rk;kjpf;fpnwhk;/ nkw;go
brhj;jpy; vt;tpjkhd tpy;y';fKk;. fyDk;
fpilahJ/ mt;thW VnjDk; ,Ug;gjhf
bjhpate;jhy; eh';fs; Kd;dpd;W jPh;j;Jf;
bfhLj;J gj;jpug;gjpt[ bra;J bfhLf;f
rk;kjpf;fpnwhk;/ fpiua fhyj;jpy; mry;
j!;jhnt$pfis j';fsplk;
xg;gilf;fpnwhk;/ ,t;thwhf eh';fs;
,UtUk; KG kd rk;kjj;Jld; vGjpf;
bfhLj;j tpf;fpiua mf;fphpbkz;l;
gj;jpuk;/''
(12)The properties which were agreed to be sold by defendants comprised in different survey numbers, different fields, admeasuring an extent of 14.10 acres. The suit properties include a borewell and 5 HP electric service connection as a whole. The parties have specifically agreed that the balance of sale consideration, namely a sum of Rs.1,03,31,000/- should be paid by the plaintiff within two months from the date of agreement. The parties also consciously agreed that in case the purchaser, namely, the plaintiff fails to pay the https://www.mhc.tn.gov.in/judis 17 AS.Nos.1011/2008 & 1067/2009 balance amount within the time agreed, the plaintiff could only get back the advance amount after deducting 10% of the amount paid under the Agreement as advance. The purchaser was given the right to deposit the balance in Court and seek compulsory registration of the Agreement of Sale in case the vendor refuses to execute the Sale Deed, when the purchaser offers the balance amount within the period of two months. Though the recitals also indicate that the vendors have agreed to handover copies of documents for getting legal opinion and agreed to measure the property before the completion of sale, such recitals do not affect the intention of parties to specify time as the essence of contract. Further, PW2 who was present at the time of Agreement deposed during cross as follows:-
''mf;fphpbkz;l; gpufhuk; 2 khjj;jpw;Fs;
fpiuak; Kof;f ntz;Lk; vd;W jhd;
ngr;R/''
(13)Several judgments are cited before this Court by both sides. Though there is no presumption as time being the essence of contract, it has been repeatedly held that time can be made as the essence of the Agreement by specific recitals in the Agreement which may also be explicit from the terms of the Agreement or by the conduct of parties.
https://www.mhc.tn.gov.in/judis 18 AS.Nos.1011/2008 & 1067/2009 (14)In K.S.Vidyanatham and Others V. Vairavan reported in 1997 [3] SCC 1, where six months' period was specified for completing the sale, expired on 15.06.1979 and the suit notice was issued on 11.07.1981, the Hon'ble Supreme Court observed that the Court should also bear in mind that when the parties prescribe certain time limit, it must have some significance and that the said time limit cannot be ignored altogether on the ground that time is not the essence of the contract relating to immovable properties. The Hon'ble Supreme Court taking into account the total inaction of plaintiff for 2 ½ years and the substantial rise in price between the date of Agreement and the date of suit refused to grant relief of specific performance. (15)This Court in several similar cases, by following several judgments of the Hon'ble Supreme Court has held in unequivocal terms that the stipulation with regard to time cannot be ignored and that time can also be made as the essence of the contract even by issuing a notice. It would be more appropriate to refer to the judgment of the Constitution Bench of Hon'ble Supreme Court where similar issue was considered in Chand Rani [Smt] [Dead] by LRs Vs. Kamal Rani [Smt] [Dead] by LRs reported in 1993 [1] SCC 519 : AIR 1993 SC 742. Though the Hon'ble Supreme Court accepted the principle that in the case of sale https://www.mhc.tn.gov.in/judis 19 AS.Nos.1011/2008 & 1067/2009 of immovable property, time is not regarded as the essence of the contract and that, there is no presumption as to time being the essence of the contract, has held as follows:-
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:
1. From the express terms of the contract;
2. from the nature of the property; and
3. from the surrounding circumstances, for example:
the object of making the contract.'' (16)The Constitution Bench of Hon'ble Supreme Court considered the issue as to whether time is the essence of the contract with reference to the following clause in the Agreement which is extracted in paragraph 26 of the Judgment of Hon'ble Supreme Court:-
''26. In the above legal background, we will now look at the terms of the suit contract dated August 26, 1971. The agreement reads as under:
“Now, therefore this agreement to sell witnesseth and the parties hereto have agreed as follows: https://www.mhc.tn.gov.in/judis 20 AS.Nos.1011/2008 & 1067/2009
1. That in pursuance of the said agreement, the 1st party has received a sum of Rs 30,000 (rupees thirty thousand only) from the second party as earnest money the receipt whereof the 1st party hereby separately acknowledges. Rs 98,000 (rupees ninety-
eight thousand only) will be paid by the second party to the 1st party within a period of ten days only and the balance of Rs 50,000 (rupees fifty thousand only) at the time of registration of the sale deed before the Sub-Registrar, New Delhi.'' (17)After extracting the above clause in the Agreement of Sale, the Hon'ble Supreme Court has made the position in clear terms by expressing its conclusion in paragraphs No.27 and 28 of the said judgment which read thus:-
''27. Then comes the question as to the payment of Rs 98,000. The question is as to what is the meaning of the words “within a period of 10 days only”? Does it apply to the amount or the time- limit of 10 days from August 26, 1971. The trial court was of the view that the word “only” was meant to stress and qualify the amount of Rs 98,000 and cannot be read to mean as if payment within 10 days was the essence of the contract. On this aspect, the appellate court takes the contrary view and holds that the amount of Rs 98,000 ought to have been paid on or before September 6, 1971. Failure to do so would constitute a breach committed by the https://www.mhc.tn.gov.in/judis 21 AS.Nos.1011/2008 & 1067/2009 defendant. We are of the considered view that the Division Bench is right in its conclusion. As rightly pointed out in the judgment under appeal, the word “only” has been used twice over (1) to qualify the amount of Rs 98,000 and (2) (2) to qualify the period of 10 days.
28. Therefore, having qualified the amount there was no further need to qualify the same unless it be the intention of the parties to make time as the essence of the contract.'' (18)Though several judgments have been cited, this Court is unable to find any other judgment more appropriate than the judgment of the Constitution Bench of Hon'ble Supreme Court in Chand Rani's case [cited supra]. In the Agreement of Sale under Ex.A1, parties never even agreed for extension of time on any contingency and specified the time limit in unequivocal terms without an option being given to the purchaser in case he fails to pay the balance of sale consideration within the period of two months from the date of Agreement. (19)The subsequent terms of the Agreement by which the vendors have agreed to handover the copies of documents though specify the obligation of the vendors to handover the documents, the same cannot be interpreted to control the specific Agreement regarding payment of https://www.mhc.tn.gov.in/judis 22 AS.Nos.1011/2008 & 1067/2009 sale consideration within two months from the date of Agreement. Similarly, the total consideration was fixed on the basis that the value of one cent is Rs.9,100/-. If there is any deficiency at the time of measuring the property at the time of registration, the parties would calculate the actual amount payable by plaintiff to defendants as per the rate agreed.
(20)In the present case, the plaintiff cannot rely upon the terms of Agreement regarding copies of documents being handed over as an obligation of vendors without even a demand that too before receiving the balance of payment as agreed under Ex.A1. It is not the case of plaintiff that he entered into the Agreement without verifying the document of title or that the plaintiff agreed to produce all the documents before making further payment. Admittedly, no notice was issued by plaintiff before the time stipulated, demanding any document to get legal opinion. In the suit notice dated 10.05.2006, it is stated that the vendors have agreed to give copies of documents but failed to give the Cancellation Deed dated 24.12.1998 and the Will dated 26.08.1969 executed by Govindaraja Mudaliar to V.G.Kannappa Mudaliar and his sons from whom the 2nd defendant had purchased some of the suit items. This suggest that the plaintiff wanted only two documents. https://www.mhc.tn.gov.in/judis 23 AS.Nos.1011/2008 & 1067/2009 However, in evidence it is not his case that he demanded that the documents before issuing suit notice. In the reply notice sent through the Advocate under Ex.A4 and in the reply sent by the 1st defendant to the plaintiff, it is specifically stated that the non-payment of balance would justify the defendants to cancel the Agreement and to refund the advance after deducting 10% of the advance. In the written statement, it is specifically stated that the defendants were ready to hand over all the necessary documents in relation to the suit properties. They have specifically denied the plaint averment that the defendants had not given the documents. Even if the plaintiff did not get the documents from the defendants immediately after the Agreement, the plaintiff could have issued a notice asking the defendants to give the necessary documents within two months from the date of Agreement. Admittedly, no such notice was issued to the defendants by the plaintiff. The Agreement is dated 04.01.2006 and the time for performance is only two months from the date of Agreement. Therefore, before the expiry of time, no notice was issued to the defendants informing them that some of the documents are required by the plaintiff for getting legal opinion.
(21)Quite interestingly, the learned counsel for the plaintiff has produced https://www.mhc.tn.gov.in/judis 24 AS.Nos.1011/2008 & 1067/2009 before this Court namely the Cancellation Deed dated 24.12.1998 as Ex.A16. Learned counsel for the plaintiff relied upon the documents Exs.A16 and A17 which are dated 24.12.1998 and 21.01.1999 to impress the Court that the conduct of the defendants is blameworthy. From Ex.A16, it is seen that one Rukmani Ammal who had earlier sold a few items of properties in favour of the 1st defendant by a document dated 22.01.1998, later unilaterally cancelled the Sale Deed on the only ground that the cheque issued by the 1st defendant towards sale consideration had been dishonoured by the Bank. Subsequently, by document Ex.A17 dated 21.01.1999, the said Rukmani Ammal has again conveyed title in respect of the same properties in favour of the 1st defendant. Therefore, the title of the 1st defendant in respect of properties cannot be disputed. The details of the transactions can very well be obtained by getting an Encumbrance Certificate in respect of the properties. When the plaintiff had knowledge about the subsequent Sale Deed, the copy of cancellation of Sale Deed is unwanted and the plaintiff did not explain why the document is required for getting legal opinion.
(22)The plaintiff has also produced Ex.A15, the original Sale Deed that was executed by Rukmani Ammal in favour of the 1st defendant on https://www.mhc.tn.gov.in/judis 25 AS.Nos.1011/2008 & 1067/2009 22.01.1998 and the subsequent Sale Deed under Ex.A17 dated 21.01.1999. Hence, the unilateral cancellation of the first Sale Deed may not have much significance. The request of the plaintiff in the first notice demanding a copy of the Cancellation Deed appears to be with motive. By referring to two specific documents, the Court can infer that the plaintiff had all other documents for getting legal opinion. The case of plaintiff that defendants had not handed over the Cancellation Deed and the Will cannot be believed especially when the 2nd defendant has specifically disputed the case of the plaintiff that some of the documents were not handed over in the written statement as well as in the chief examination. From the cross examination of DW1 and DW2, it is seen that not even a suggestion is put to them that the vendors did not come forward to furnish any of the document which was required by plaintiff to get legal opinion. In the said circumstances, this Court is unable to visualize the position as pleaded by the plaintiff that time is not agreed to be essence of the contract and that the plaintiff can plead that furnishing document is an essential term of the Agreement. From the terms of Agreement, no doubt the defendants have agreed to furnish copy of documents if required by plaintiff. However, the terms cannot be read to mandate documents https://www.mhc.tn.gov.in/judis 26 AS.Nos.1011/2008 & 1067/2009 being handed over without even a demand. When time is not extended by defendants and no option is given to plaintiff, this Court has no hesitation to hold that stipulation as to time is the essence of the Agreement.
(23)Similarly, the plaintiff admit even in the plaint that the property was measured during the last week of January 2006 and found some deficiency in the extent as regards items 18, 20 and 21. Even according to the plaintiff, the deficiency in extent was only 20 cents. Therefore, one would expect the plaintiff to come forward to make balance of sale consideration after deducting the proportionate amount corresponding to the deficiency in extent. First of all, the plaintiff has not even come forward to reconcile the deficiency by giving a notice or letter before the time prescribed for performance. It is only in the suit notice such deficiency is referred to. This also suggests that the conduct of plaintiff was with motive and his intention was to avoid performing his part of the contract under some pretext or the other with ulterior motive. With the above background, this Court is unable to accept the case of the plaintiff that the time is not the essence of the contract. In other words, time stipulated in the Agreement is the essence of the Agreement.
https://www.mhc.tn.gov.in/judis 27 AS.Nos.1011/2008 & 1067/2009 POINT [B] and [C]:-
(24)When this Court has held that time is the essence of the contract, it is to be seen that the contract has to be performed within the time. The fact that the plaintiff though has agreed under Ex.A1-Agreement that he would pay the balance of sale consideration within two months from the date of Agreement, it is admitted that the plaintiff did not come forward to pay the amount. Even in the suit notice, it is stated that time is not the essence of the contract. It is to be seen whether the party is ready and willing to perform his part of the contract in terms of the Agreement of Sale. Being party to the contract where time is the essence of the contract and that the purchaser should pay the balance within two months from the date of Agreement, the conduct of plaintiff in setting up the case in the notice and in the plaint that time is not the essence of the contract, would compel this Court to hold that the plaintiff has not even averred that he is ready and willing to perform his part of the contract in terms of the Agreement of sale.
As per Explanation [ii] to Section 16[c] of Specific Relief Act, the plaintiff must aver readiness and willingness to perform the contract https://www.mhc.tn.gov.in/judis 28 AS.Nos.1011/2008 & 1067/2009 according to its true construction. Having regard to the specific finding on Point [A], this Court has to necessarily hold that the plaintiff has failed to perform his part of the contract in terms of the Agreement and committed breach of Agreement under Ex.A1. As a corollary, it is necessary to hold that the plaintiff has failed to plead and prove that he is ready and willing to perform his part of the contract in terms of Agreement-Ex.A1. However, the Trial Court has not framed an issue as to the readiness and willingness. (25)Since the learned counsel for the plaintiff has made his submissions relying upon the terms of Agreement [Ex.A1] as regards production of title documents and measurement of property, this Court has to consider the issue in the light of facts and law settled by several precedents. The question of readiness and willingness has to be considered in the light of pleadings as well. The endeavour of the Court is to assess whether the plaintiff was always and continuously ready and willing to perform his part of the contract in terms of the Agreement. In the present case, the plaintiff has not even produced any document to show that he had the means to pay the balance of sale consideration at the time of agreement. In the course of evidence, the plaintiff would admit that he is a welding contractor and his income is https://www.mhc.tn.gov.in/judis 29 AS.Nos.1011/2008 & 1067/2009 Rs.20,000/- per month. Though it is stated that the plaintiff is doing real estate business, his business prospects cannot be presumed with the probable investment of third parties in his business. In this case there is no independent evidence except PW2. Admittedly, no document is produced to show that the plaintiff was ready with the money. PW2 however states that the plaintiff along with PW2 demanded on several times with the entire balance of Rs.1,03,31,000/- in cash within the time, in the proof affidavit. This is not even the case of plaintiff. Regarding plaintiff's means he only says that plaintiff is having a welding shop and doing real Estate business. This evidence is also not reliable and inconsistent. In a case where time is the essence of the contract and it is established that the plaintiff had agreed to pay the balance of sale consideration of Rs.1,03,31,000/- , he cannot just rely upon explanation [i] to Section 16[c] of the Specific Relief Act. The position that the plaintiff need not deposit the money into Court does not dispense with proof that he was ready with money and willing to pay balance as agreed.
(26)Compliance of Section 16[c] of the Specific Relief Act is not an empty formality. Irrespective of whether the opposite party raises an issue or not with regard to compliance of Section 16[c] of the Act, it is https://www.mhc.tn.gov.in/judis 30 AS.Nos.1011/2008 & 1067/2009 mandatory that the Court should examine this and find out whether the plaintiff has pleaded and proved his readiness and willingness as agreed as per the terms of the Agreement. When the Court is examining the issue in a case of this nature, the corresponding obligations of both parties in the order or sequence should be taken into account. In other words, the plaintiff in the present case, who has undertaken or agreed in unmistakable terms that he would pay balance of sale consideration within two months from the date of Agreement cannot require the defendants to furnish some documents in the middle after the expiry of time or to measure the property with a motive. Furnishing documents of title is a statutory obligation of the vendors under Section 55[b] of Transfer of Property Act. However that cannot be put as a condition precedent to perform the obligation of plaintiff. Even though the readiness and willingness is pleaded in this case, it is mandatory that the plaintiff should prove his readiness and willingness and the Court cannot grant specific performance in the absence of satisfactory evidence to prove the readiness and willingness of the plaintiff. In the facts of the case, this Court is of the view that one of the judgments relied upon by the learned counsel for the plaintiff is relevant to hold that the plaintiff has not proved his readiness and https://www.mhc.tn.gov.in/judis 31 AS.Nos.1011/2008 & 1067/2009 willingness in terms of Section 16[c] of the Specific Relief Act. In the case of V.V.Rathinasabapathy Pillai Vs. T.R.Sriramulu Chettiar reported 99 LW 239, a Division Bench of this Court has held as follows:-
''31.The principle is well-settled that in considering whether a person is willing to perform his part of the contract, the sequence in which the obligations under the contract are to be performed must be taken into account and if under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without in the first instance performing his own part of the contract which, in the sequence of obligations, is performable by him earlier. This principle was applied to the facts of the case dealt with by the Supreme Court and it found that there was a clear obligation case upon one of the contracting parties with regard to getting the Revenue records rectified by securing the deletion of the concerned individual's name and there was an implied condition of the contract that the said party should also secure the sanction of the Collector to the transfer under the provisions of the Madhya Bharat https://www.mhc.tn.gov.in/judis 32 AS.Nos.1011/2008 & 1067/2009 Land Revenue and Tenancy Act 66 of 1950. The first condition was not fulfilled until a particular time and the second condition was never fulfilled and, in the said circumstances, the Supreme Court held that the said party having failed to carry out his part of the contract, the other party could not be called upon to perform his part. The facts of the present case are different. The obligation to pay the sum of Rs. 10,000 arose after the registration of the release deed which the defendants were found to secure and did secure. The factum of the release deed having got registered was brought to the notice of the plaintiff. Though there is a dispute as to whether the release deed as such was shown to the plaintiff, the details of the document and registration were furnished to the plaintiff and only thereafter the call was made to pay the sum of Rs. 10,000. The present case of the plaintiff, put forth through his learned counsel that because the defendants did not have the release deed secured and registered in the manner contemplated in the contract, they cannot demand this sum of Rs. 10,000 is a theory which, as we stated above was never advanced as an answer to the demand for payment of this sum of Rs. 10,000 at any point of time earlier.....
https://www.mhc.tn.gov.in/judis 33 AS.Nos.1011/2008 & 1067/2009
32.....
33. Mr. M. Raghavan, learned counsel for the plaintiff, conceived of an answer and expressed the same before us by submitting that the demand for the payment of Rs. 10,000 was combined with the demand for the payment of Rs. 40,000 which, the defendants claim, was paid for obtaining the release and the demand was a composite demand and even if the plaintiff had paid this sum of Rs. 10,000, yet, the defendants would not have obliged by completing the contract. If the plaintiff had kept himself above board by not violating an essential term of the contract, and in this case, the payment of Rs. 10,000 and if in spite of the same the defendants tried to wriggle out of the contract only on this stand, in the absence of any other convincing answer for them, certainly the court will not permit the defendants to stall off fulfilment of their obligations under the contract. But the plaintiff cannot mix up the two aspects, which was never done earlier, as an acceptable answer for his violation of the essential term. If there is a term to be performed and which term is essential as the parties understood the same on the facts and circumstances of the case, and if there is a violation with regard to the performance of the same by the https://www.mhc.tn.gov.in/judis 34 AS.Nos.1011/2008 & 1067/2009 plaintiff, in our view, the mischief of S. 16(b) of the Act would be attracted and would disentitle the plaintiff from seeking specific performance.'' (27)The Trial Court in the present case, has given a finding that time is not the essence of the contract and examined the issue as to readiness and willingness without framing an issue as if it follows, in the light of its conclusion on the first issue. The Trial Court therefore, found that defendants have not performed their essential part of contract by furnishing the documents and to measure the properties before the execution of the Sale Deed. Obviously, the Trial Court was misled on a wrong interpretation of terms of Agreement and erroneous appreciation of the law and fact on the issue ignoring that time is the essence of the contract. Therefore, we hold that the plaintiff did not prove his readiness and willingness and committed breach of an essential term of the Agreement of sale. It follows that the defendants are justified in rescinding the contract of sale in terms of the Agreement.
POINT [D]:-
(28)The learned counsel for the defendants submitted that the suit ought to have been also for a declaration that the cancellation of Agreement https://www.mhc.tn.gov.in/judis 35 AS.Nos.1011/2008 & 1067/2009 by defendants is invalid. Referring to the reply notice where the defendants have informed the cancellation of the contract, learned counsel relied upon judgment of the Hon'ble Supreme Court in the case of Muhinder Kaur Vs. Sans Paul Singh reported in 2019 [6] CTC 348, wherein the Hon'ble Supreme Court has considered the case where the sale Agreement was cancelled by defendants therein after due notice to the plaintiff therein. Relying upon the previous judgment of this Court in I.S.Sikandar [D] by LRs Vs. K.Subramani and others reported in 2013 [15] SCC 27, wherein it was held that the suit for specific performance simplicitor was not maintainable in the absence of any challenge to the cancellation of the Agreement and seeking consequential declaratory relief, the Hon'ble Supreme Court has held as follows:-
''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 agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law.'' https://www.mhc.tn.gov.in/judis 36 AS.Nos.1011/2008 & 1067/2009 (29)The unilateral rescission of a contract does not foreclose the rights of parties to the contract. When a contract is terminated, it will have civil consequences. When a person refuses to perform the contract on the ground that the contract is not enforceable against him, it is always open to the person to approach the Court for appropriate relief. If he succeed in establishing his right to enforce the contract despite the communication informing the unilateral decision of one of the parties, the Court is not powerless to grant appropriate relief to one of the parties. However, we are bound by the judgment of the Hon'ble Supreme Court, still we are not inclined to rest our decision on this point, as the defendants have not raised this issue in the written statement.
POINTS No. [E] and [G]:-
(30)Learned counsel for the respondent/plaintiff submitted that the Court in a suit for specific performance look into the conduct of parties while exercising discretion. Referring to the fact that the defendants have not come forward to return the amount received as advance to the plaintiff immediately after expiry but only after issuance of the suit notice, it is submitted that the Court should consider the serious prejudice that is caused to the plaintiff. Though non-payment of https://www.mhc.tn.gov.in/judis 37 AS.Nos.1011/2008 & 1067/2009 balance of sale consideration within the stipulated time enable the defendants to put an end to the Agreement and to refund the advance amount after deducting 10%, the Court cannot read something more into the terms of contract and hold that the contract would be revived in case the defendants did not repay the advance after deducting 10% upon expiry of two months. In the present case, the suit notice was issued nearly two and half months after the time stipulated in the Agreement to pay the balance. Though the notice under Ex.A2 was returned, the defendants admitted the receipt of notice that was addressed to the husband of the 1st defendant. On receipt of the notice on 20.05.2006, a letter was sent by defendants to the plaintiff along with a Demand Draft for a sum of Rs.22,50,000/- being the amount received as advance less 10%. This reply notice is dated 22.05.2006.
By this letter the plaintiff was promptly informed that the Agreement stands cancelled. This was followed by another reply notice through their Advocate by the defendants to the plaintiff's advocate on 24.05.2006. In the reply through Advocate, it is specifically stated that within the period of two months there was no communication from the plaintiff to evince any interest to complete the sale and that the plaintiff had not informed the vendor that he was ready with the https://www.mhc.tn.gov.in/judis 38 AS.Nos.1011/2008 & 1067/2009 money to complete the sale. The cover with the Demand Draft and the Acknowledgment Card are marked as Exs.A8 and A9. It is admitted that the cover was opened only during trial by the Trial Court and they were marked as documents. The plaintiff has marked the documents as Exs.A8 and A9. Unfortunately, the Demand Draft was not encashed immediately. This Court, having regard to the admitted facts, is unable to put the blame on the defendants. The plaintiff has marked these documents from his custody and not taken any steps to encash the Demand Draft to deposit the amount in Court at least to earn interest for the amount. Defendants who have returned the amount by way of Demand Draft cannot be blamed. It is surprising to note that the plaintiff who has approached the Court with a false case now complains about the conduct of defendants.
(31)Now the question that would arise for consideration is whether this Court would exercise its discretion in favour of plaintiff under Section 20 of the Specific Relief Act. Even though Section 20 of the Specific Relief Act is amended in 2018. This Court has to apply the amended provision in the present case in view of few of the recent judgments of Hon'ble Supreme Court where amended Section 20 is applied in pending proceedings. Recently, a Three Member Bench of Hon'ble https://www.mhc.tn.gov.in/judis 39 AS.Nos.1011/2008 & 1067/2009 Supreme Court in Smt.Katta Sujatha Reddy & Another Vs. Siddamsetty Infra Projects Pvt Ltd & Others in Appeal Nos.5822 to 5824/2022 [Judgment dated 25.08.2022] considered the question whether Section 10 of Specific Relief Act as substituted by Act 18 of 2018 is prospective and retrospective in nature and held that it is prospective and cannot apply to those transactions that took place prior to its coming into force. Paragraphs 54 to 56 of the judgment is relevant and hence, extracted:-
''54.In the light of the aforesaid discussion, it is clear that ordinarily the effect of amendment by substitution would be that the earlier provisions would be repealed and amended provisions would be enacted in place of the earlier provisions from the date of inception of that enactment. However, if the substituted provisions contain any substantive provisions which create new rights, obligations, or take away any vested rights, then such substitution cannot automatically be assumed to have come into force retrospectively. In such cases, the legislature has to expressly provide as to whether such substitution is to be construed retrospectively or not.
https://www.mhc.tn.gov.in/judis 40 AS.Nos.1011/2008 & 1067/2009
55.In the case at hand, the amendment act contemplates that the said substituted provisions would come into force on such date as the Central Government may appoint, by notification in the Official Gazette, or different dates may be appointed for different provisions of the Act. It may be noted that 01.10.2018 was the appointed date on which the amended provisions would come into effect.
56.In view of the above discussion, we do not have any hesitation in holding that the 2018 amendment to the Specific Relief Act is prospective and cannot apply to those transactions that took place prior to its coming into force.'' (32)The plaintiff herein seeks specific performance by only pleading readiness and willingness to pay the balance of sale consideration which he had agreed to pay by 03.03.2006. The advance amount also was refunded of course, after deducting 10%. The suit properties are valuable lands. This Court cannot imagine of granting a decree for specific performance in favour of the plaintiff who was never ready and willing to perform his part of the contract at the material points of time. If the relief of specific performance is granted, that will put the defendants to a great precarious and disadvantageous position to lose the property today at the price the plaintiff had promised in the year https://www.mhc.tn.gov.in/judis 41 AS.Nos.1011/2008 & 1067/2009 2006. It is well settled that discretion of the court cannot be arbitrarily exercised and it should be guided by sound principle on equity. Conduct of parties, hardships, bona fides of transactions, delay and laches, various other factors and attending circumstances may be considered while exercising discretion. In this case it has been observed that the plaintiff has not proved readiness and willingness. No document is produced to show that the plaintiff who is just having a welding shop and earns a sum around Rs.20,000/- per month is capable of mobilising a huge amount of more than one crore. This suit itself was filed nearly six months after the agreement was cancelled. The unexplained delay in approaching the court after termination of agreement and absence of evidence to show the capacity to mobilise funds even after filing suit only indicate that the plaintiff appears to have promised with an idea of mobilising funds by getting investment from prospective buyers by showing the agreement. Therefore, the promise, the plaintiff made in the agreement was sought to be interpreted by plaintiff to suit his convenience. The unfairness with which the plaintiff came forward with the suit is sufficient to deny him the equitable relief of specific performance. The case of plaintiff regarding shortage of measurement, demanding cancellation of a sale https://www.mhc.tn.gov.in/judis 42 AS.Nos.1011/2008 & 1067/2009 deed in the suit notice issued after the expiry of period specified in the agreement are factors which was never considered by Trial Court. (33)In Saradamani Kandappan vs. Rajalakshmi and others reported in AIR 2011 SC 3234, the Hon'ble Court has held as follows:
''43. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam [(1997) 3 SCC 1] :
(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.
(ii) The courts will apply greater scrutiny and strictness when considering whether the purchaser was “ready and willing” to perform his part of the contract.
(iii)Every suit for specific performance need not be decreed merely because it is filed within https://www.mhc.tn.gov.in/judis 43 AS.Nos.1011/2008 & 1067/2009 the period of limitation by ignoring the time-limits stipulated in the agreement. The courts will also “frown” upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part-performance, where equity shifts in favour of the purchaser.'' (34)The above judgment has been quoted with approval in many cases by Hon'ble Supreme Court including the case in Smt.Katta Sujatha Reddy & Another Vs. Siddamsetty Infra Projects Pvt Ltd & Others by a Larger Bench.
(35) In this case the plaintiff issued the suit notice nearly after the period of 2 ½ months after expiry of period specified in the agreement. The defendant in the reply notice specifically mentioned that the agreement stands cancelled because of non payment of balance within the time https://www.mhc.tn.gov.in/judis 44 AS.Nos.1011/2008 & 1067/2009 agreed. However, the suit is filed nearly after six months after the intimation that the Agreement is cancelled and the advance amount is returned in accordance with the terms of agreement. The unexplained delay in filing the suit is also an important factor which would disentitle the plaintiff from getting equitable relief of specific performance especially having regard to the steep rise in price of properties in Kancheepuram District. Having regard to the conduct of plaintiff, the injustice that will be done to defendants if decree for specific performance is granted and the various circumstances pointed out in this judgement, we have no hesitation to hold that the plaintiff is not entitled to the relief of specific performance. The findings the Trial Court without looking into the admitted facts and the principles settled by courts are erroneous, perverse and unsustainable in law.
Though several precedents are referred to in the written submissions of the learned counsel for the plaintiff, this Court is unable to find relevance on the facts of this case.
POINT No.F:-
(36)This issue is framed because the learned counsel for defendants submitted that as per agreement, the plaintiff was required to deposit the balance amount while seeking specific performance. As per https://www.mhc.tn.gov.in/judis 45 AS.Nos.1011/2008 & 1067/2009 Explanation [i] of Section 16(c) of Specific Relief Act, it is not essential for the plaintiff to actually tender to the defendants or to deposit in Court any money except when so directed by the Court when a contract involves the payment of money. Hence, this Court is unable to accept the submission of learned counsel for defendants. (37)In view of the findings on all issues, this Court is of the view that the judgment and decree of the Trial Court is unsustainable in law and on merits. Accordingly, AS.No.1011/2008 is allowed and the judgment and decree dated 30.09.2008 made in OS.No.420/2006 passed by the learned Additional District Judge, Fast Track Court No.1, Chengalpattu, is set aside. The suit in OS.No.420/2006 is dismissed. (38)Since the plaintiff has committed breach, this Court is of the view that the plaintiff is responsible for his precarious position and this Court cannot direct the defendants to pay any amount as defendants have faced unnecessary litigation and they are dragged to Court because of the greedy attitude of the plaintiff. Since the suit in OS.No.420/2006 itself is dismissed, this Court finds that there is no merit in the connected appeal in AS.No.1067/2009 and hence, AS.No.1067/2009 stands dismissed. No costs.
https://www.mhc.tn.gov.in/judis 46 AS.Nos.1011/2008 & 1067/2009 (39)The original Demand Draft drawn in favour of plaintiff and marked through him shall be returned to the plaintiff to enable him to encash. On production of the Demand Draft, the amount shall be credited to his account by the concerned Bank. In this regard, it is open to the plaintiff to seek further direction from this Court if necessary.
[SSSRJ] [NMJ]
22.12.2022
AP
Internet : Yes
Index : Yes / No
To
1.Additional District Judge, Fast Track Court No.1, Chengalpattu,
2.The Section Officer VR Section, High Court, Chennai.
https://www.mhc.tn.gov.in/judis 47 AS.Nos.1011/2008 & 1067/2009 S.S. SUNDAR, J.
AND N.MALA, J.
AP Common Judgment in AS.Nos.1011/2008 & 1067/2009 22.12.2022 https://www.mhc.tn.gov.in/judis 48