Madras High Court
M.Kumar vs V.Balan on 17 February, 2021
Author: R.Subramanian
Bench: R.Subramanian
SA(MD)No.284 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 17.02.2021
CORAM
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
S.A(MD)No.284 of 2015
and M.P(MD)No.1 of 2015
M.Kumar ...Appellant/Respondent/Defendant
Vs.
V.Balan ...Respondent/Appellant/Plaintiff
PRAYER:- Second Appeal is filed under Section 100 of C.P.C against the
judgment and decree passed in A.S.No.39 of 2013 on the file of the
Principal Subordinate Judge, Thanjavur dated 23.09.2014 reversing the well
considered findings of the judgment and decree passed in O.S.No.246 of
2008 on the file of the District Munsif, Thanjavur dated 23.07.2013.
For Appellant : Mr.M.Siddharthan
For Respondent : Mr.D.Sridharan
for Mr.P.Velmurugan
JUDGMENT
The defendant in O.S.No.246 of 2008 has come up with this appeal. Challenge is to the reversal of the judgment of the trial court by the appellate court and grant of a decree for specific performance.
2. The plaintiff filed a suit for specific performance of an agreement dated 14.12.2004 claiming that the defendant has agreed to sell the suit http://www.judis.nic.in1/9 SA(MD)No.284 of 2015 property for a consideration of Rs.60,000/- and received an advance of Rs.50,000/-. Claiming that even after issuance of notice, the defendant has not come forward to execute the sale deed, the plaintiff sought for the relief as aforesaid.
3. The suit was resisted by the defendant contending that the agreement itself was not intended to be acted upon as an agreement of sale and the same was executed as security for a loan transaction.
4. At trial, the plaintiff was examined as P.W.1 and Exts.A.1 to A.4 were marked. One Raja was examined as P.W.2. The defendant was examined as D.W.1 and two other witnesses were examined as D.W.2 and D.W.3.
5. The learned trial Judge rejected the contention in defence that the agreement was not intended to be acted upon and held that the agreement is true and valid. It however faulted the plaintiff for not being ready and willing to perform his part of the contract within the time stipulated under the agreement. Noting that there was a huge delay of nearly 3 years in issuing a demand notice seeking specific performance itself, the trial court http://www.judis.nic.in2/9 SA(MD)No.284 of 2015 came to the above conclusion. Therefore, the trial court rejected the claim for specific performance and ordered refund of advance.
6. Aggrieved, the plaintiff preferred an appeal in A.S.No.39 of 2013. The appellate court, upon re-consideration of the evidence on record, reversed the judgment and decree of the trial court and concluded that the plaintiff had filed the suit within the time stipulated under the Limitation Act and therefore, he cannot be non-suited for not being ready and willing to perform his part of the contract. Upon the said conclusion, the lower appellate court granted a decree for specific performance. Hence, this Second Appeal.
7. I have heard Mr.M.Siddharthan, learned counsel appearing for the appellant and Mr.D.Sridharan, learned counsel appearing for Mr.P.Velmurugan, learned counsel for the respondent.
8. The following question of law has been framed by this Court at the time of admission:
“Whether the lower appellate court has not committed an error in reversing the well considered finding of the trial court on the question of pleading and proving readiness and http://www.judis.nic.in3/9 SA(MD)No.284 of 2015 willingness on the part of the plaintiff in accordance with Section 16(c) of the Specific Relief Act, 1963?”
9. Mr.M.Siddharthan, learned counsel appearing for the appellant would vehemently contend that though agreement fixed the period of 6 months for performance of the contract, the plaintiff chose to issue notice demanding performance only on 11.12.2007 i.e nearly 3 years after the date of the agreement. He would also point out that the suit was filed on 02.06.2008 just a day prior to the expiry of limitation. Therefore, according to the learned counsel, the trial court was justified in concluding that the plaintiff was not ready and willing to perform his part of the contract. He would also fault the appellate court for reversing the well considered judgment and decree of the trial court.
10. Contending contra, the learned counsel for the respondent would submit that mere delay in filing the suit for specific performance cannot be a ground to non-suit the plaintiff for readiness and willingness. He would also submit that once the plaintiff has filed the suit within the limitation provided under the Limitation Act, he would be entitled to a decree for specific performance. In support of his submission, the learned counsel would also http://www.judis.nic.in4/9 SA(MD)No.284 of 2015 rely upon the judgment of the Hon'ble Supreme Court in R.Lakshmikantham Vs. Devaraji (2019(3) RCR (Civil) 814 )
11. I have considered the submission of the learned counsel on either side.
12. Undisputable facts are as follows:
The agreement is dated 14.12.2004. Six months time fixed for performance had expired on 14.06.2005. Notice demanding specific performance was issued on 11.12.2007 and the suit was filed on 12.06.2008. No doubt, law is settled to the effect that time is not essence of a contract in respect of the contract for sale. Section 16(c) of the Specific Relief Act requires the plaintiff to prove that he was ready and willing to perform his part of the contract. Section 16(c) of the Specific Relief Act imposes a personal bar on the plaintiff to seek relief for specific performance in the absence of proof for readiness and willingness. Even in the absence of a defence, the plaintiff has to establish that he was ready and willing to perform his part of the contract. The readiness and willingness must be demonstrated by the plaintiff throughout the period of the contract. However, if the plaintiff fails to establish that he was ready and willing to http://www.judis.nic.in5/9 SA(MD)No.284 of 2015 perform his part of the contract, he is debarred from getting the relief of specific performance.
13. No doubt, the Hon'ble Supreme Court has held that mere delay in filing the suit for specific performance cannot be a ground to non-suit the plaintiff, if he is otherwise shown to be ready and willing to perform his part of the contract. Therefore, the judgment in Lakshmikantham's case cannot be a precedent to interpret law to the effect that the requirements of readiness and willingness were totally dispensed with. If only the plaintiff had issued notice within the time fixed under the agreement and filed the suit at the fag end of the limitation period, the decision in Lakshmikantham 's case would squarely apply and the plaintiff cannot be non-suited for being not ready and willing. But in the case on hand, the plaintiff had kept quiet for nearly 3 years before issuing notice seeking specific performance. No doubt, the delay after issuance of notice cannot be a ground to reject the relief for specific performance. In my considered opinion, the delay in issuing notice would definitely show that the plaintiff was not ready and willing to perform his part of the contract. Once it was found that the plaintiff was not ready and willing to perform his part of the http://www.judis.nic.in6/9 SA(MD)No.284 of 2015 contract, the appellate court erred in concluding that the delay in filing the suit cannot be taken as a ground for non-suiting the plaintiff.
14. In view of the above, the question of law raised in this appeal is answered in favour of the appellant. Accordingly, the judgment and decree passed in A.S.No.39 of 2013 on the file of the Principal Subordinate Judge, Thanjavur dated 23.09.2014 is set aside. The judgment and decree passed in O.S.No.246 of 2008 on the file of the District Munsif, Thanjavur dated 28.07.2018 is restored.
15. It is stated that balance sale consideration of Rs.10,000/- has been deposited by the plaintiff before the trial court. The plaintiff would be entitled to withdraw the same along with accrued interest, if any.
16. In fine, this Second Appeal is allowed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
17.02.2021 Index : Yes/No Internet: Yes/No CM http://www.judis.nic.in7/9 SA(MD)No.284 of 2015 To:
1.The Principal Subordinate Judge, Thanjavur
2.The District Munsif, Thanjavur
3. The Section Officer VR Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in8/9 SA(MD)No.284 of 2015 R.SUBRAMANIAN. J., CM S.A(MD)No.284 of 2015 and M.P(MD)No.1 of 2015 17.02.2021 http://www.judis.nic.in9/9