Madras High Court
Muthukrishna Gounder vs Gowri on 21 January, 2014
Author: M.Duraiswamy
Bench: M.Duraiswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 21.01.2014 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.550 of 2010 Muthukrishna Gounder ... Appellant Vs. 1.Gowri 2.Rani 3.Visalatchi 4.Shanthi ... Respondents Second Appeal filed under Section 100 of the Code of Civil Procedure judgment and decree dated 07.01.2010 in A.S.No.31 of 2008 on the file of the Subordinate Court, Mathuranthagam reversing the judgment and decree dated 23.06.2008 in O.S.No.184 of 2004 on the file of the District Munsif Court, Mathuranthagam. For Appellant : Mr.N.Manoharan For Respondents : Mr.M.S.Subramanian (R1) Mr.V.Chandrakanthan (R2 to R4) J U D G M E N T
The above Second Appeal arises against the judgment and decree in A.S.No.31 of 2008 on the file of the Subordinate Court, Mathuranthagam, reversing the judgment and decree in O.S.No.184 of 2004 on the file of the District Munsif Court, Mathuranthagam.
2.The plaintiff is the appellant and the respondents were the defendants in the suit. The plaintiff filed the suit in O.S.No.184 of 2004 for specific performance and for permanent injunction.
3.The brief case of the plaintiff is as follows:
According to the plaintiff, the plaintiff and one Perumal Gounder are brothers and the suit property and other properties are ancestral properties. The father of the plaintiff settled the suit property in favour of the plaintiff and the first defendant on 30.04.1959. The plaintiff and Perumal Gounder purchased part of the suit property jointly. There was oral division of the suit property and the suit property was allotted to Perumal Gounder. Since the said Perumal Gounder was unable to cultivate the land, the plaintiff alone was cultivating the suit property and paying waram till last crop. Perumal Gounder agreed to sell the suit property to the plaintiff for a Sale Consideration of Rs.83,600/- and he executed an Agreement of Sale on 21.10.2002. On the same day, the plaintiff paid a sum of Rs.50,000/- as advance. As per the Agreement, the balance Sale Consideration of Rs.33,600/- was to be paid on or before 20.03.2003. The plaintiff even after the Agreement, continued to be in possession and enjoyment of the suit property. According to the plaintiff, he was always ready and willing to pay the balance Sale Consideration. But according to the plaintiff, only the said Perumal Gounder has been postponing, on the guise of his ill health and family problem. It was also agreed that time is not the essence of the contract. The fourth defendant's family was always inimical towards the plaintiff, therefore, the defendant created a sham and nominal document to defeat the claim of the plaintiff. She is not a bona fide purchaser for value. She has not even taken possession of the suit property. On 17.07.2003, the plaintiff issued a notice to the defendants, for which they issued a false reply. According to the plaintiff, he was ready and willing to deposit the balance Sale Consideration as and when directed by the trial Court. The said Perumal Gounder died intestate on 14.10.2003, leaving behind the defendants 1 to 3 as his legal heirs and therefore, they are bound to execute the Sale Deed to the plaintiff. In these circumstances, the plaintiff filed the suit.
4.The brief case of the defendants 1 to 3 are as follows:
According to the defendants, late Perumal Gounder executed a Sale Deed in favour of the fourth defendant in respect of the suit property for a valuable consideration. The sale proceeds were utilised to discharge the bank loans. The sale was open and to the knowledge of everyone in the Village, including the plaintiff. She sent a reply dated 28.07.2003 to the notice dated 17.07.2003 issued by the plaintiff. Perumal Gounder did not receive Rs.50,000/- on 21.10.2002 and he did not execute the Sale Agreement. The alleged Sale Agreement dated 21.10.2002 was denied by the defendants. Perumal Gounder received a sum of Rs.45,000/- by way of loan from the plaintiff. For the loan obtained, the plaintiff got a signature in a document. Perumal Gounder did not agree to sell the suit property to the plaintiff. He had no intention to sell the properties. Late Perumal Gounder signed the document only to get loan from the plaintiff. The defendants also denied the averment that due to ill health of Perumal Gounder the execution of the Sale Deed was postponed. The suit property was not properly described. The plaintiff has not come to the Court with clean hands. In these circumstances, the defendants prayed for dismissal of the suit.
5.The brief case of the fourth defendant is as follows:
According to the fourth defendant, Perumal Gounder sold the suit property to her on 09.06.2003 for a valuable consideration. By settlement dated 30.04.1979, Perumal Gounder was allotted the second item of the suit property. The first item was purchased by the said Perumal Gounder on 25.06.2002 from one Kuppammal. The suit agreement is barred by limitation. The suit property is the absolute property of Perumal Gounder. The plaintiff was not ready and willing to pay the balance Sale Consideration to Perumal Gounder. In these circumstances, the fourth defendant prayed for dismissal of the suit.
6.Before the trial Court, on the side of the plaintiff, three witnesses were examined and 5 documents, Exs.A1 to A5, were marked and on the side of the defendants, 2 witnesses were examined and 6 documents, Exs.B1 to B6, were marked.
7.The trial Court, after taking into consideration the oral and documentary evidences of both sides, decreed the suit for specific performance. Aggrieved over the judgment and decree of the trial Court, the fourth defendant preferred an appeal in A.S.No.31 of 2008 on the file of the Subordinate Court, Mathuranthagam and the defendants 1 to 3 preferred an appeal in A.S.No.11 of 2009 on the file of the Subordinate Court, Mathuranthagam. The lower Appellate Court, by a common judgment, reversed the judgment and decree of the trial Court and allowed both the appeals. Aggrieved over the judgment and decrees of the lower Appellate Court, the plaintiff has filed the above Second Appeal.
8.Heard Mr.N.Manoharan, the learned counsel appearing for the appellant, Mr.M.S.Subramanian, the learned counsel appearing for the first respondent and Mr.V.Chandrakanthan, the learned counsel appearing for the respondents 2 to 4.
9.The appellant has raised the following substantial questions of law in the Second Appeal:
(i)Whether the lower Appellate Court had erred in dismissing the suit filed by the plaintiff for specific performance, holding that Ex.A1 Sale Agreement as invalid on the sole ground that Ex.A1 is not signed by the purchaser?
(ii)Whether the lower Appellate Court had erred in misapplying the ratio rendered in 2004 (4) LW 186 and whether the lower Appellate Court failed to see that lack of mutuality is not a ground to refuse specific performance of the contract u/s. 20(4) of the Specific Relief Act?
(iii)Whether the lower Appellate Court had reversed the well considered judgment of trial Court holding that the plaintiff had not proved his readiness and willingness by leading documentary evidence?
(iv)Is the time is the essence of the contract for immovable property and whether the lower Appellate Court had reversed the well considered judgment of trial Court holding that the time is the essence of contract, in the present case, as agreement contemplates time?
10.It is not in dispute that the suit property originally belonged to one Perumal Gounder. According to the plaintiff, the said Perumal Gounder agreed to sell the suit property to the plaintiff and executed Ex.A1 Agreement on 21.10.2002. As per the said Agreement, the Sale Consideration was fixed at Rs.83,600/- and on the date of execution of the Sale Agreement, the plaintiff paid a sum of Rs.50,000/- as advance. Further, according to the plaintiff, the balance Sale Consideration of Rs.33,600/- was to be paid by him to Perumal Gounder on or before 20.03.2003. The said Perumal Gounder executed Ex.B1 Sale Deed dated 09.06.2003 in favour of the fourth defendant in respect of the suit property. The plaintiff issued Ex.A2 notice dated 17.07.2003 to Perumal Gounder and the fourth defendant. The said Perumal Gounder sent Ex.A3 reply dated 28.07.2003 to the plaintiff.
11.The learned counsel appearing on behalf of the appellant raised the following contentions:
(a) that the finding of the lower Appellate Court that Ex.A1 Sale Agreement is an invalid document for the reason that it was not signed by the purchaser is erroneous;
(b) that when the plaintiff had proved his readiness and willingness to perform his part of the contract, the finding of the lower Appellate Court that the plaintiff failed to establish the same is liable to be set aside;
(c) that when the settled position in respect of an immovable property is that time is not the essence of the contract, the finding of the lower Appellate Court that in the case on hand, time is the essence of the contract, is also liable to be set aside;
(d) that when the defendants contended that Ex.A1 document was executed only for the purpose of loan transaction, the duty is cast upon them to prove that the said Agreement is not a Sale Agreement.
12.In support of his contentions, the learned counsel appearing for the appellant relied upon the following judgments:
(i) (2003) 1 M.L.J. 694 [M.Ramalingam (Died) and others Vs. V.Subramanyam (Died) and others] wherein a Division Bench of this Court held that in a suit for specific performance of an Agreement of Sale, when the defendants plead that it is only a loan transaction, a duty is cast upon them to prove that the said Agreement is not a Sale Agreement.
(ii) 2009 (6) CTC 301 [T.G.Pongiannan Vs. 1.K.M.Natarajan, 2.N.Eswari]. In this judgment, this Court held that the plaintiff's right to get specific performance cannot simply be ignored on the mere plea of the defendants that it was not intended to be an Agreement to sell, but it was only to secure repayment of the loan.
(iii) (1993) 1 Supreme Court Cases 519 [Chand Rani (Smt) (Dead) by LRs. Vs. Kamal Rani (Smt) (Dead) by LRs.] wherein a Constitution Bench of the Hon'ble Supreme Court held that in the case of sale of immovable property, there is no presumption as to time being the essence of contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are evident: (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract.
(iv) (2013) 8 Supreme Court Cases 131 [Satya Jain (Dead) through LRs. and others Vs. Anis Ahmed Rushdie (Dead) through LRs. and others] wherein the Hon'ble Supreme Court held that the time during which the defendant was absent from India has to be excluded in computing the period of limitation. Further, the Hon'ble Apex Court held that no straitjacket formula can be laid down but depends on overall conduct of parties to the Agreement prior and subsequent to the filing of the suit.
(v) (2005) 7 Supreme Court Cases 534 [Anglase Yohannan Vs. Ramlatha and others] wherein the Hon'ble Apex Court held that readiness and willingness could not be treated as straitjacket formula and that had to be treated in entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. Further, the Hon'ble Apex Court held that in the absence of any material to show that at any stage if the plaintiff was not ready and willing to perform his part of the contract or that he did not have the necessary funds for the Sale Deed to be executed, the plaintiff is not entitled to a decree for specific performance.
(vi) (2008) 11 Supreme Court Cases 45 [Silvey and others Vs. Arun Varghese and another]. In this judgment, the Hon'ble Supreme Court held that the conduct of the defendant in taking a false plea has to be taken into account while decreeing or denying a decree for specific performance.
(vii) (2008) 4 Supreme Court Cases 530 [Thiruvendagam Pillai Vs. Navaneethammal and another] wherein the Hon'ble Supreme Court held as follows:
"Even assuming that use of such stamp papers is an irregularity, the court can only deem the document to be not properly stamped, but cannot, only on that ground, hold the document to be invalid. Even if an agreement is not executed on requisite stamp paper, it is admissible in evidence on payment of duty and penalty under Sections 35 or 37 of the Stamp Act, 1899. If an agreement executed on a plain paper could be admitted in evidence by paying duty and penalty, there is no reason why an agreement executed on two stamp papers, even assuming that they were defective, cannot be accepted on payment of duty and penalty. But admissibility of a document into evidence and proof of genuineness of such document are different issues."
(viii) (2009) 16 Supreme Court Cases 262 [Barium Chemicals Limited Vs. Vishwa Bharati Mining Corporation and another] wherein the Hon'ble Supreme Court held that a document, which is not duly stamped is to be dealt with under Section 35 of the Stamp Act before it is admitted in evidence, failing which, its admission in evidence cannot be questioned at any later stage.
(ix) (2003) 8 Supreme Court Cases 752 [R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and another] wherein the Hon'ble Supreme Court held as follows:
"The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
(x) AIR 1965 Supreme Court 1405 (1) [Mademsetty Satyanarayana Vs. G.Yelloji Rao and others] wherein the Hon'ble Apex Court held that under Section 22 of the Specific Relief Act, relief of specific performance is discretionary but not arbitrary. Discretion must be exercised with sound and reasonable judicial principles. The cases providing for a guide to Courts to exercise discretion one way or other are only illustrative and they are not intended to be exhaustive.
(xi) (2000) 6 Supreme Court Cases 420 [Motilal Jain Vs. Ramadasi Devi (SMT) and others]. In this judgment, the Hon'ble Supreme Court held as follows:
"An averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale."
(xii) AIR 1998 Madras 336 [K.M.Rajendran Vs. Arul Prakasam and another] wherein this Court held that mere delay is not sufficient to deny the relief of specific performance unless there is a waiver or abandonment.
(xiii) (1972) 2 Supreme Court Cases 757 [DR.Jiwan Lal and others Vs. Brij Mohan Mehra and another] wherein the Hon'ble Apex Court held that if the plaintiffs did not abandon their rights under the Agreement, the institution of the suit after two years does not appear to have caused any disadvantage to the defendant.
13.Countering the submissions made by the learned counsel for the appellants, the learned counsel for the respondents submitted that the lower Appellate Court rightly reversed the judgment and decree of the trial Court and dismissed the suit for the reason that the plaintiff failed to prove his readiness and willingness to perform his part of the contract. The learned counsel also submitted that since Ex.A1 document was not properly stamped, the same has to be rejected. That apart, the learned counsel also submitted that the suit is also liable to be dismissed on the ground of non-joinder of co-sharer of the suit property. Further, the learned counsel contended that in the present case, time is the essence of the contract for the reason that a specific date was mentioned in the alleged Agreement for execution of the Sale Deed, therefore, the dismissal of the suit by the lower Appellate Court is just and proper.
14.In support of his contentions, the learned counsel relied upon the following judgments:
(i) (2008) 4 Supreme Court Cases 464 [Balasaheb Dayandeo Naik (Dead) through LRs and others Vs. Appasaheb Dattatraya Pawar] wherein the Hon'ble Supreme Court held as follows:
"12.This Court in Swarnam Ramachandran v. Aravacode Chakungal Jayapalan [(2004) 8 SCC 689], has once again reiterated that time is not the essence of contract relating to immovable property. The following statement of law in para 12 are rightly applicable to the case on hand: (SCC pp. 694-95) 12. That time is presumed not to be of essence of the contract relating to immovable property, but it is of essence in contracts of reconveyance or renewal of lease. The onus to plead and prove that time was the essence of the contract is on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of essence. That when the plaintiff pleads that time was not of essence and the defendant does not deny it by evidence, the court is bound to accept the plea of the plaintiff. In cases where notice is given making time of the essence, it is duty of the court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. That a vendor has no right to make time of the essence, unless he is ready and willing to proceed to completion and secondly, when the vendor purports to make time of the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind the contract.
13. As observed in the said decision, in the case on hand the appellant-plaintiffs clearly established their claim to secure specific performance of the agreement by leading cogent evidence whereas the respondent-defendant having pleaded that time was the essence of the contract neither entered the witness box nor led any evidence whatsoever. The High Court lost sight of the above material aspect and the conduct of the defendant in not strengthening his plea by placing acceptable evidence. In such circumstances, as rightly argued by learned counsel for the appellants, the High Court should have confirmed the decree of specific performance granted by the trial court.
14. On the other hand, the High Court wrongly placed reliance on the decision of this Court in K.S. Vidyanadam v. Vairavan [(1997) 3 SCC 1], as in the facts of that case, this Court found that granting for specific performance was inequitable, however such aspect of the matter was totally absent in the case on hand. Even otherwise, para 11 of the judgment shows that the subject-matter of the property was an urban immovable property and in such special circumstance relaxed the general rule that time is not the essence of the contract in the case of immovable properties. In the case on hand, the details furnished in the agreement clearly show that the subject-matter of the property is an agricultural land situated in Kolhapur District, Maharashtra. In such circumstances, the decision in K.S. Vidyanadam [(1997) 3 SCC 1] is not applicable to the facts on hand. In the facts of the present case, which we have already adverted to, neither the terms of agreement nor the intention of the parties indicate that the time is an essence of the agreement. We have already pointed that having raised such a plea the respondent even did not bother to lead any evidence."
(ii) 2011 (3) MWN (Civil) 780 [Duraikannu Naicker Vs. K.Ramachandra Iyer] wherein this Court held that in a suit for specific performance, the plaintiff must show his readiness and willingness from the date of agreement till date of sale or till filing of suit and if the conduct of the plaintiff shows that he was not having source to pay the Sale Consideration, then the plaintiff is not entitled to a decree for specific performance.
(iii) Vol 81 LW 2 [Yasodammal and another Vs. Janaki Ammal] wherein a Division Bench of this Court held that in a case of unstamped document, it has been held that as the prohibition contained in Section 35 of the Stamp Act is wide and absolute, even though in the pleadings the contesting party may admit the execution of the unstamped documented, no relief could be granted on the basis of the admission, as it would amount to acting upon the unstamped document.
(iv) (2009) 17 Supreme Court Cases 27 [Azhar Sultana Vs. B.Rajamani and others] wherein the Hon'ble Supreme Court held as follows:
"28.Section 16(c) of the Specific Relief Act, 1963 postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining a relief of grant of specific performance of contract. The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be entitled to take into consideration as to whether the suit had been filed within a reasonable time. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. No hard-and-fast law can be laid down therefor. The conduct of the parties in this behalf would also assume significance.
29.In Veerayee Ammal v. Seeni Ammal [(2002) 1 SCC 134] it was observed: (SCC p. 140, para 11) 11. When, concededly, the time was not of the essence of the contract, the appellant-plaintiff was required to approach the court of law within a reasonable time. A Constitution Bench of this Honble Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519] held that in case of sale of immovable property there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of contract, the court may infer that it is to be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case. It was furthermore observed: (Veerayee Ammal [(2002) 1 SCC 134] case , SCC pp. 140-41, para 13) 13. The word reasonable has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word reasonable. The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of reasonable time is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyars Law Lexicon it is defined to mean:
A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than directly; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.
(v) 1997 (I) CTC 360 [Seeni Ammal Vs. Veerayee Ammal] wherein this Court held as follows:
"12.Now, I shall deal with the other question, namely, readiness and willings of the plaintiff in performing her part of the contract. Repeatedly, this Court as well as the Apex Court have held in many decisions that the plaintiff has to specifically plead his readiness and willingness and prove his case by substantial evidence. No doubt, in this case, there is a general averment that plaintiff was always ready and willing to perform his part of the contract. Plaintiff as P.W.1 deposed that before the expiry date she has reminded the defendant for completion of the sale by sending two letters. However, the copies of the alleged two letters have not been marked as exhibits in support of her case and she has also not given any explanation, however, she has conveniently deposed that both the letters were sent by ordinary post. In this regard, the defendant in the written statement as well as in her evidence categorically denied the said two letters alleged to have been sent by the plaintiff. In the absence of any documentary evidence, it is not safe to accept the case of the plaintiff that she had sent two letters prior to the expiry of the contractual period."
(vi) 2010 (3) CTC 297 [Jugraj Vs. P.Sankaran and others] In this judgment, following the judgments of the Hon'ble Apex Court, I have held that the subsequent purchasers are entitled to raise the plea that the plaintiff was not ready and willing to perform his part of the contract.
15.On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side and also taking into consideration the judgments relied upon by the learned counsel on either side, the contention raised by the first respondent/fourth defendant that Ex.A1 Sale Agreement was not properly stamped and therefore, the said document have to be rejected, is concerned, the plaintiff marked Ex.A1 document stating that the same is an Agreement executed by Perumal Gounder in her favour. At the time of producing the document during the trial, no dispute was raised with regard to the execution of the document with deficit stamp duty. On a perusal of Ex.A1 Agreement, it could be seen that the said Perumal Gounder had affixed his signature on five revenue stamps. It is true that under Article 5 (j) of the Stamp Act, an Agreement should have been written on Rs.20/- stamp paper. However, if the document was insufficiently stamped, the remedy available is under Section 37 of the Indian Stamp Act. The document can be impounded and on payment of penalty, the deficiency can be rectified. When the defendants have not raised the said issue before the Courts below, the contention raised by the learned counsel for the respondents cannot be accepted. Ex.A1 document was executed on 21.10.2002. As per the said Agreement, the sale was to be completed on or before 20.03.2003. On 09.06.2003, the fourth defendant had purchased the suit property from Perumal Gounder. Thereafter, on 17.07.2003, the plaintiff issued Ex.A2 notice to Perumal Gounder and the fourth defendant. Perumal Gounder sent Ex.A3 reply on 28.07.2003. Thereafter, on 14.10.2003, Perumal Gounder had died. After the death of Perumal Gounder, on 27.11.2003 the plaintiff filed the suit for specific performance as against the legal representatives of the deceased Perumal Gounder, who are the defendants 1 to 3 and as against the fourth defendant, who purchased the property from Perumal Gounder under Ex.B1 Sale Deed.
16.So far as the finding of the lower Appellate Court that the plaintiff had not signed Ex.A1 Agreement and therefore, there is no consensus ad idem and therefore, the said document cannot be relied upon is concerned, the Hon'ble Apex Court and this Court in various judgments have repeatedly held that if the owner of the property had signed the Agreement executed in favour of the purchaser is sufficient for claiming right under the said document. In the case on hand, though the plaintiff had not signed Ex.A1 document, he is entitled to claim right under the document for the reason that the owner of the document himself had executed the said document in favour of the plaintiff. That apart, in the case on hand, there is no dispute with regard to the signature of Perumal Gounder found in Ex.A1 document. The contention raised by the defendants 1 to 3 was that the said Perumal Gounder had executed Ex.A1 Agreement for the purpose of loan transaction and it was not intended for the sale of the suit property to the plaintiff. When the settled position is that even in the absence of the signature of the purchaser, if the document is executed by the owner of the property, the purchaser is entitled to file a suit for specific performance, the finding of the lower Appellate Court that since the plaintiff had not signed Ex.A1 document, it cannot be relied upon is erroneous and is liable to be set aside and accordingly, the same is set aside. Therefore, Ex.A1 Agreement is binding on both the parties.
17.So far as the issue, whether time is the essence of the contract or not is concerned, in Ex.A1 Agreement, it has been stated that the sale should be completed on or before 20.03.2003. There is nothing on record to show that the plaintiff had taken steps to get the Sale Deed executed before 20.03.2003. The only document available, asking the defendants to execute the Sale Deed, is Ex.A2 legal notice issued on 17.07.2003. Therefore, in the absence of any evidence to show that the plaintiff had demanded execution of the Sale Deed before 20.03.2003 and when a specific date has been mentioned in Ex.A1 Agreement for the completion of the sale, though the general proposition in the case of sale of immovable property, there is no presumption as to time being the essence of contract, in the case on hand, when a specific date has been mentioned for the completion of the sale, I am of the view that the general proposition of law is not applicable to the facts and circumstances of the present case. The Court may infer that Agreement is to be performed in a reasonable time if the conditions are evident from the express terms of the contract. It has been specifically stated in Ex.A1 Agreement that the sale should be completed on or before 20.03.2003. In these circumstances, I find no error in the finding of the lower Appellate Court that time is the essence of the contract.
18.With regard to the contention of the learned counsel for the respondents that the suit is liable to be dismissed on the ground of non-joinder of necessary party is concerned, the said plea was not raised by the defendants in their written statement. For the first time, relying upon the evidence of P.W.1, the defendants are raising this issue before this Court. In the absence of any pleading to that effect, the said contention cannot be accepted. Therefore, the same is rejected.
19.So far as the issue with regard to readiness and willingness is concerned, it could be seen that in the plaint, the plaintiff had specifically averred that he was always ready and willing to perform his part of the contract. Though the defendants 1 to 3 did not state anything in their written statement regarding the readiness and willingness, the fourth defendant had disputed the readiness and willingness of the plaintiff in her written statement. The learned counsel appearing on behalf of the appellant submitted that since the defendants 1 to 3 did not dispute the averment with regard to the readiness and willingness in their written statement, the plaintiff need not prove his readiness and willingness.
20.It is settled position that under Section 16 (c) of the Specific Relief Act, the plaintiff should aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him. Therefore, it is the mandatory requirement of the plaintiff to plead and prove his readiness and willingness to perform his part of the contract. The said proposition has been laid down by the Hon'ble Supreme Court in the judgment reported in (2011) 1 Supreme Court Cases 429 [J.P.Builders and another Vs. A.Ramadas Rao and another] wherein the Hon'ble Supreme Court held as follows:
"25. Section 16(c) of the Specific Relief Act, 1963 mandates readiness and willingness on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous readiness and willingness to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal [(1970) 3 SCC 140] that readiness and willingness cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. Readiness and willingness to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
Therefore, from the above judgment, it is clear that the plaintiff should plead and prove his readiness and willingness to perform his part of the contract.
21.Now, coming to the evidence of P.W.1 with regard to his readiness and willingness, he has stated that at the time of paying the advance amount of Rs.50,000/-, he pledged gold jewellery for a sum of Rs.30,000/-. However, according to P.W.1, he could not redeem the pledged jewellery for the reason that he was not in a position to pay the interest to the Financier, therefore, the pledged jewellery were auctioned by the Financier. P.W.1 in his evidence, further stated that for paying the balance Sale Consideration of Rs.33,600/- he sold paddy bags and was keeping the amount ready with him. When P.W.1 was not in a position to pay the interest on the loan amount of Rs.30,000/-, his statement that he was having the balance Sale Consideration of Rs.33,600/- ready with him, cannot be believed. The plaintiff had pledged the gold jewellery for the purpose of only redeeming them as and when he gets money. If he had no intention to redeem the gold jewellery, he would have sold the jewellery and realised the money. Since he pledged the jewellery and that he could not pay even the interest on the said amount of Rs.30,000/-, it will clearly establish that he was not having sufficient funds after the execution of Ex.A1 Agreement. The plaintiff must show his readiness and willingness from the date of agreement till the date of sale or till filing of suit and if the conduct of the plaintiff shows that he was not having source to pay the Sale Consideration, then the plaintiff is not entitled to a decree for specific performance. In the case on hand, from the evidence of P.W.1 it is clear that he was not having sufficient funds to pay the balance Sale Consideration. Therefore, it is evident that the plaintiff failed to prove his readiness and willingness to perform his part of the contract, which is a mandatory requirement under Section 16 (c) of the Specific Relief Act. In a suit for specific performance, if the plaintiff failed to plead and prove his readiness and willingness to perform his part of the contract, the suit is liable to be dismissed. Applying the principles laid down in the judgments relied upon by the learned counsel for the appellant and the respondents, I am of the view that the lower Appellate Court rightly set aside the judgment and decree of the trial Court and dismissed the suit.
22.In these circumstances, I find no ground much less any substantial question of law to interfere with the judgment and decrees of the lower Appellate Court. The Second Appeal is liable to be dismissed. Accordingly, the same is dismissed. However, there shall be no order as to costs.
Index : Yes 21.01.2014
Internet : Yes
va
To
1.The Subordinate Court,
Mathuranthagam.
2.The District Munsif Court,
Mathuranthagam.
M.DURAISWAMY, J.
va
Judgment in
S.A.No.550 of 2010
21.01.2014