Madras High Court
Ramamani vs Pitchaimani on 6 February, 2017
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.02.2017 Reserved on: 24.11.2016 Delivered on: 06.02.2017 CORAM THE HONOURABLE MR.JUSTICE S.S.SUNDAR Second Appeal (MD) No.555 of 2011 M.P.(MD) Nos.1 of 2011 and 1 of 2014 Ramamani : Appellant/Respondent/Defendant -Vs-. Pitchaimani : Respondent/Appellant/Plaintiff Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 28.01.2011 made in A.S.No.1 of 2010 on the file of Additional District Judge, Fast Track Court, Periyakulam reversing well considered judgment and decree dated 07.08.2009 made in O.S.No.131 of 2005 on the file of Subordinate Judge, Uthamapalayam. !For Appellant : Mr.T.C.S.Thillainayagam ^For Respondent : Mr.A.Hafiza :JUDGMENT
The defendant in the suit in O.S.No.131 of 2005 on the file of the Sub Court, Uthamapalayam, is the appellant in this Second Appeal.
2.The respondent herein filed the suit in O.S.No.131 of 2005 for specific performance of an agreement of sale dated 25.02.2004 upon receipt of a sum of Rs.1,00,000/- deposited in Court and to direct the first defendant to execute the sale deed in respect of the suit property and for other consequential relief.
3.The case of the respondent in the plaint are as follows:
3.1.The suit property belonged to the first defendant. The first defendant agreed to sell the suit property in favour of the plaintiff and second defendant and executed a sale agreement on 25.02.2004 after receiving a sum of Rs.4,00,000/- as advance out of the total sale consideration of Rs.5,00,000/-. As per the agreement, the balance sale consideration, namely, a sum of Rs.1,00,000/- has to be paid by the plaintiff and the second defendant on or before 10.11.2004 and that the first defendant agreed to execute the sale deed at the cost of plaintiff and second defendant upon receipt of the balance sale consideration.
3.2.Even though the plaintiff and second defendant were ready with the balance of Rs.1,00,000/-, they issued a notice dated 08.10.2004 to the first defendant to execute the sale deed, the first defendant by a reply dated 11.10.2004 contending false allegations. The first defendant issued a subsequent notice on 01.11.2004. Thereafter, the plaintiff issued a further notice on 09.11.2004 calling upon the first defendant to perform his part of the contract but the first defendant and her husband issued a reply notice dated 15.11.2004 contending false averments.
3.3.Subsequently, the first defendant with the help of second defendant conducted herself improperly by creating a situation as if the second defendant had obtained the advance money from the first defendant and failed to execute the sale deed as per the sale agreement. The first defendant also is taking steps to alienate the property to one of his relatives and any such sale will not affect the rights of the plaintiff.
Though the plaintiff is ready and willing to perform his part of the contract, the first defendant is evading performance without any valid excuse and hence, the plaintiff has approached the Court seeking the relief of specific performance after depositing the balance sale consideration, namely, a sum of Rs.1,00,000/-.
4.The suit was contested by the first defendant by filing a detailed written statement. It is relevant to point out that the suit agreement dated 25.02.2004 was specifically denied and it was contended by the first defendant that the plaintiff and second defendant are money lenders and that the first defendant obtained a loan of Rs.4,00,000/- from them on 25.02.2004. It is the further case of the first defendant that at the time of borrowing the said sum of Rs.4,00,000/-, the plaintiff and second defendant obtained the signature of the first defendant in blank stamp papers and papers and trying to use such documents to create an agreement. The first defendant stated that she came to know about the suit agreement only when the plaintiff and the second defendant gave a notice in a paper on the basis of the agreement dated 25.02.2004.
5.The first defendant further contended that she had earlier entered into an agreement of sale with one Ravi from Bodi. According to the first defendant, she wanted to settle the loan she had obtained from the plaintiff and second defendant and that the plaintiff in the meanwhile issued notice to the first defendant relying upon the alleged agreement of sale. It was also pleaded by the first defendant that there was a compromise at Chinnamanur Chambers of Commerce and as a result of which, a consent letter was executed by the plaintiff and second defendant agreeing to receive a sum of Rs.5,00,000/- alone in full quit of their claim under the alleged agreement of sale. Pursuant to the compromise, the second defendant received a sum of Rs.2,50,000/- from the first defendant after executing a consent letter in favour of the first defendant stating that he has no claim whatsoever in respect of the suit property and that he has obtained a sum of Rs.2,50,000/- towards his money. In paragraph 6 of the written statement, the first defendant has stated as follows:
?6. gpuhjpy; Bfhhpago ?Vw;wij Mw;Wf? ghpfhuk; thjpf;F rl;lg{h;tkhf fpilf;f Toajy;y. Vbdd;why; xUBtis xU thjhj;jpw;F xg;g[f;bfhz;lhYk;, Bkw;go fpiua vf;hpbkz;l; 2 egh;fSf;F Bghlg;gl;L mjida[k; thg!; thA;Ftjhd cWjp Twpagpd;g[ BkYk; fpiuak; thA;Fk; egh;fspy; xU egh; fpiua vf;hpbkz;l; thg!; gj;jpuk; vGjpf;bfhLj;jgpd;g[ me;j fpiua vf;hpbkz;l; jhdhfBt fhyhtjp MfptpLfpd;wJ. ne;j thjp jhth brhj;jhf ve;j gFjpia Brh;e;j brhj;J vd;W Fwpg;gpl;L Twhky; nUg;gjpypUe;Bj ne;j tHf;F rl;lg;go js;Sgo bra;ag;gl Btz;oa[s;sJ. fpiua vf;hpbkz;l;ilg; bghWj;J mJ rl;lg;go bry;yf;ToaJ vd;W nUf;Fk;gl;rj;jpy;jhd; thjp Vw;wij Mw;Wf ghpfhuk; BfhuKoa[k;.?
6.The trial Court after framing necessary issues found that the suit agreement is a bona fide sale transaction and that the same will be binding on the first defendant. Further, the trial Court also found that the document, namely, the consent letter alleged to have been obtained by the first defendant from the plaintiff and the second defendant is not binding on the plaintiff. However, the trial Court while dealing with the issues relating to the readiness and willingness of the plaintiff and the entitlement of the plaintiff to the equitable relief of specific performance, found that the plaintiff is not entitled to specific performance and that he has not proved his readiness and willingness. The trial Court also found that the first defendant has proved the payment of Rs.2,50,000/- to the second defendant and hence, the suit was partly decreed by directing the defendant to pay a sum of Rs.2,00,000/- which was received by the defendant under the suit agreement along with interest. Aggrieved by the findings of the trial Court, the plaintiff preferred an appeal in A.S.No.1 of 2010 on the file of the Additional District Judge, Fast Track Court, Periyakulam. The first defendant also filed an appeal in A.S.No.4 of 2010 challenging the decree directing the first defendant to pay the advance amount with interest. The appellate Court, however, reversed the findings of the trial Court by holding that the plaintiff has proved his readiness and willingness and that the plaintiff is entitled to the relief of specific performance after holding that the suit agreement is a bona fide sale transaction. Regarding the withdrawal of second defendant from the suit agreement, the lower appellate Court came to the conclusion that the withdrawal of second defendant was not proved and that there is no rescission of contract. It was further held that the plaintiff even in the absence of second defendant can seek enforcement of suit agreement. It is admitted in evidence that the plaintiff paid a sum of Rs.2,00,000/- and the second defendant paid a sum of Rs.2,00,000/- under the suit agreement. It is not disputed that the amount paid by second defendant was repaid to him along with a further sum of Rs.50,000/-. However, relying upon commentaries in the Book ?Mulla - Indian Contract and Specific Relief Act? (Page 2509 12th Edition, Volume No.2) the lower appellate Court held that the plaintiff, one of the co-contributors can seek its specific enforcement even against the will of the contractor (joint promisee). The appeal in A.S.No.1 of 2010 was allowed and thereby the suit in O.S.No.131 of 2005 was decreed as prayed for. However, A.S.No.4 of 2010, filed by the first defendant was dismissed. It is against the judgment and decree of the lower appellate Court in A.S.No.1 of 2010, the present Second Appeal has been filed by the first defendant.
7.The learned Counsel for the appellant raised the following questions of law:
(1) Whether first appellate Court's decree for specific relief is sustainable in law in view of Section 20 of Specific Relief Act as the same are discretionary relief and when the plaintiff approaches the Court without clean hands cannot seek such a relief and the same should be denied by the Court?
(2) Whether the first appellate Court correctly exercised its discretion on sound principles of law to grant the specific relief to the plaintiff as under Section 20 of the Specific Relief Act?
(3) Whether the first appellate Court's finding that the alleged sale agreement Ex.A1 is a concluded contract as per Section 7 of Specific Relief Act and there is consensus ad idem when the Court itself found that the agreement is made for the due in the business transaction among the plaintiff, second defendant and first defendant's husband is correct in law?
(4) When the terms of agreement i.e., to discharge othi amount of Rs.85,000/- to Poovalingam and Murugan is not complied by the plaintiff and the second defendant then the same amounts to breach of the contract and in such circumstances whether Ex.A1 can be enforced?
(5) Whether the relief granted by the first appellate Court is correct in law when the plaintiff himself stated that he was ready to pay a sum of Rs.1,00,000/- as balance amount in stead of paying Rs.3,00,000/- as per the terms of agreement and the same is hit by Section 16 of the Act?
(6) Is it not unfair advantage of the plaintiff over the first defendant by having sale agreement for the business settlement and also on that basis claiming to pay a sum of Rs.1,00,000/- as balance amount in the joint agreement?
(7) When the first defendant gets hardship by way of returning Rs.2,50,000/- to the second defendant out of Rs.4,00,000/- advance amount by way of Ex.B5 and the same attracts Section 20 of the Act and hence, whether first appellate Court's decision to grant relief in favour of plaintiff is on sound principle of law?
(8) Whether the first appellate Court is correct in holding that plaintiff is entitle for enforce the agreement as under Section 15 of the Act when the question of non-cooperation of second defendant to file the suit is arisen as second defendant one of the joint promise or agreement holder received his balance amount with interest and the same amounts to breach of contract?
8.The learned counsel for the appellant submitted that the evidence in this case let in by the plaintiff is contrary to pleading. He further submitted that the second defendant had already entered into a compromise with the plaintiff and got back his money along with the interest from the first defendant. Since this fact is not in dispute, the learned counsel for the appellant submitted that the suit filed for specific performance by paying only a sum of Rs.1,00,000/-, as balance of sale consideration, clearly would show that the plaintiff is not ready and willing to perform his part of the contract and that the suit is liable to be dismissed. Further submission of the learned counsel for the appellant is that the suit which was filed on 22.12.2005 is liable to be dismissed on the ground of laches. He has also argued after referring to several documents and contended that the suit agreement is not a bona fide sale transaction but only to serve as a security for the loan. He further referred to the oral evidence of P.W.1 and pointed out that the plaintiff's readiness and willingness when he filed the suit does not prove his readiness in terms of the sale agreement and that the plaintiff is not entitled to equitable relief of specific performance. The learned counsel for the appellant further pointed out that the plaintiff has to prove his own case and that the Court cannot grant him relief merely on the weakness of the other side. He also referred to many judgments.
9.As against the arguments of the learned counsel for the appellant, the learned counsel for the respondent vehemently contended that the judgment of the appellate Court is perfectly valid having regard to the concurrent findings of the Courts below as to the genuineness of the suit agreement and receipt of a major portion of the sale consideration namely a sum of Rs.4,00,000/- out of Rs.5,00,000/- which was paid as advance. Though several issues were raised, I feel that the suit for specific performance has to be dismissed only on the short ground that the plaintiff has not come forward to pay the balance sum of Rs.3,00,000/- before filing the suit. In this case, it is admitted that the agreement was entered into by the plaintiff and second defendant on one side and the first defendant on the other side. Both the plaintiff and second defendant jointly paid a sum of Rs.4,00,000/- out of the total sale consideration of Rs.5,00,000/-. After the sale agreement, dated 25.02.2004, there was a compromise between the first defendant and the second defendant. It is not seriously disputed by the plaintiff that the first defendant has paid a sum of Rs.2,00,000/- along with a further sum of Rs.50,000/- pursuant to the compromise. When it is admitted that the plaintiff had already repaid a sum of Rs.2,50,000/- to the second defendant, what was remaining in the hands of the plaintiff is only a sum of Rs.2,00,000/- which was out of Rs.4,00,000/- received from plaintiff and second defendant. In such circumstances, the suit filed by the plaintiff to execute the sale deed in respect of the whole property in terms of the sale agreement is not acceptable. It is trite position of law that plaintiff should be always ready and willing to perform his part of the contract strictly in terms of the suit agreement dated 25.02.2004. The suit agreement refers to the receipt of a sum of Rs.4,00,000/- from the plaintiff and second defendant. The period of performance is eight months i.e., upto 10.11.2004. The suit agreement also refers to the obligation of the plaintiff and second defendant to discharge the mortgage debt of Rs.85,000/- on behalf of the first defendant and to get the sale deed executed upon payment of the balance amount of Rs.15,000/-. Despite the fact that there is a reference about the obligation of the plaintiff and first defendant to discharge the mortgage loan, there is no whisper either in the plaint or in the deed of mortgage. Leave alone the mortgage that was referred to in the sale agreement, the plaintiff is entitled to seek specific performance only if the first defendant receives the entire sale consideration. The prayer in the suit is extracted below:
??1.tHf;Fiu brhj;ijg;bghWj;J thjp 2k; vjph;thjp kw;Wk; 1k; vjph;thjp vGjpf;bfhz;Ls;s 25.02.2004k; Bjjpapl;l fpiua cld;gof;ifapd;go thjp fpiuaghf;fp bjhifahd U.1,00,000/-I nt;tHf;fpy; itg;gPL bra;Js;sij 1k; vjph;thjp bgw;Wf;bfhz;L thjpapd; brytpy; tHf;Fiu brhj;ijg;bghWj;J fpiuag;gj;jpuk; thjpf;F vGjp gjpt[bra;J bfhLj;J tHf;Fiu brhj;ij thjpf;F RthjPdk; tHA;Fk;goa[k;.?
Having admitted the position that the second defendant had received the amount which he had paid for the agreement along with interest, the plaintiff ought to have come to Court expressing his unconditional willingness to pay a sum of Rs.3,00,000/- and seek a prayer for specific performance of an agreement. However, unmindful of the loss that the first defendant may incur in the process, the plaintiff seeks specific performance directing the first defendant to execute the sale deed upon receipt of a sum of Rs.1,00,000/-. It is admitted that the plaintiff has only paid a sum of Rs.2,00,000/- towards sale consideration under Ex.A1-the suit agreement. By taking advantage of the fact that the second defendant has withdrawn from the agreement by receiving the amount which he had paid, the plaintiff wants to take advantage of this to his benefit by trying to get the sale deed from the first defendant for a total sale consideration of Rs.3,00,000/-. This cannot be permitted.
10.In a suit for specific performance, the plaintiff has to plead his readiness and willingness to perform the contract according to the terms of the agreement. In this case, the total sale consideration for the entire suit property is Rs.5,00,000/-. When the plaintiff entered into an agreement along with the second defendant, the plaintiff had only paid a sum of Rs.2,00,000/- and the remaining sum of Rs.2,00,000/- came from the second defendant. No doubt, the plaintiff is entitled to seek specific performance even if the second defendant goes out from the contract of sale. However, the plaintiff has to then prove his readiness and willingness in terms of the agreement. The plaintiff has filed the suit for specific performance directing the first defendant to execute the sale deed in favour of plaintiff in respect of the suit property. The prayer in the suit clearly reveals that the plaintiff would pay only a sum of Rs.1,00,000/- for executing the sale deed in favour of the plaintiff in respect of the whole property. When the second defendant went out of the contract by receiving the sum of Rs.2,00,000/- paid by him as advance along with interest and this fact is admitted in the plaint, it is inequitable and unreasonable to seek performance of whole contract in favour of plaintiff without offering the consideration agreed for the whole property. Hence, the plaintiff has not proved his readiness and willingness in terms of the agreement. It has been well settled by binding precedents that the relief of specific performance is discretionary and the Court is not bound to grant the relief merely because it is lawful to grant such relief. The Court cannot be arbitrary.
11.Section 20 of the Specific Relief Act reads as follows:
20.Discretion as to decreeing specific performance.- (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
(2)The following are cases in which the Court may properly exercise discretion not to decree specific performance:-
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such tht the ontract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contact would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
(3)The Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4)The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.
12.In the present case, granting relief to the plaintiff will be inequitable as the first defendant is put to great hardship by compelling to execute the sale deed by receiving only 60% of the sale consideration that too after a long period of time. In such circumstances, the discretion cannot be exercised in favour of plaintiff. In the present case, the plaintiff by his conduct in approaching the Court with the present prayers has made the position of first defendant worse. The conduct of plaintiff in the present case, therefore, cannot be ignored and such a person is not entitled to any indulgence from this Court to get the discretionary relief. It has been repeatedly held by this Court and the Hon'ble Supreme Court that the suit for specific performance can be granted only in favour of a person who is a bona fide agreement holder and approaches the Court with clean hand, without any inconsistencies in the pleading or any unnatural delay. In the present case, the offer of plaintiff in the altered circumstances, being inequitable, the grant of relief to the plaintiff will cause serious prejudice to the first defendant depriving her of a substantial portion of the consideration. The plaintiff's attempt to take advantage of this position to the prejudice of the first defendant cannot be judged as a conduct of a bona fide agreement holder coming to Court with clean hands so as to grant him the equitable relief.
13.Relating to the difficulty in justifying the prayer in the suit as it is, the learned counsel for the respondent submitted that the plaintiff may be directed to pay a furhter sum of Rs.2,00,000/- and that the plaintiff is willing to pay the said sum. The plaintiff is required to plead and prove his readiness and willingness throughout and not after this length of time before this Court. It is further brought to the notice of this Court that the suit agreement is dated 25.02.2004 and the suit was filed only on 22.12.2005. It is admitted that the time for performance is only eight months from the date of agreement. Therefore, by 09.11.2004, the plaintiff ought to have paid the balance money and called upon the first defendant to execute the sale deed. However, despite the fact that first defendant has denied the agreement in the reply notice sent even in November, 2004, the suit has been filed after a long time. Hence, the plaintiff's suit is also liable to be dismissed on the ground of delay and laches also. From the date of reply, there was no explanation for the delay in approaching the Court. The plaintiff has to approach the Court within a reasonable time from the date on which the first defendant disputes the agreement or disowns her obligation under the sale agreement. It has been repeatedly held that the plaintiff in a suit for specific performance has to be vigilant and unexplained delay of more than an year in approaching the Court will be fatal to the case of the plaintiff and he will not be granted the equitable relief of specific performance. Hence, without going into the other issues, this appeal is liable to be allowed on the ground that the plaintiff is not entitled to the equitable relief of specific performance and on the ground that the plaintiff is not ready and willing to perform his part of the contract in terms of the suit agreement in view of the principles of law reiterated by Hon'ble Supreme Court and this Court in several binding precedents.
14.The learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in the case of Ramesh Chand (Dead) through L.Rs. v. Asruddin (Dead) through LRs and another reported in (2015) 7 MLJ 503 (SC) for the proposition that the plaintiff who had not redeemed a mortgage which he had agreed under the agreement is not entitled to specific performance. The learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in the case of A.K.Lakshmipathy (Dead) and others v. Rai Saheb Pannalal H.Lahoti Charitable Trust and others reported in (2010) 1 SCC 287 wherein the Hon'ble Supreme Court has held that the contract need to be performed within a reasonable time even if time is not the essence of contract and that the plaintiff cannot be allowed to take advantage of his own mistake in a suit for specific performance. The learned counsel for the appellant relied upon another judgment of the Hon'ble Supreme Court in the case of A.C.Arulappan v. Smt.Ahalya Naik reported in AIR 2001 SC 2783 wherein the Hon'ble Supreme Court reiterated that the plaintiff who is trying to take unfair advantage over defendant is not entitled to a decree for specific performance and that the plaintiff is expected to approach the Court with clean hands. The learned counsel for the appellant further relied upon a judgment of the Hon'ble Supreme Court in the case of Inderchand Jain (D) through LRs v. Motilal (D) through LRs reported in 2009 (5) CTC 365 wherein the Hon'ble Supreme Court has held that the readiness and willingness of the plaintiff should be established at every stage from the inception and that the learned counsel also relied upon the judgment of the Hon'ble Supreme Court in the case of G.Jayashree and others v. Bhagwandas S. Patel and others reported in AIR 2009 SC 1749 wherein the Hon'ble Supreme Court has held that the suit for specific performance should be filed immediately after the refusal to perform by the other side and that unexplained delay will be fatal.
15.Having regard to the conclusions which I have reached above with regard to the non-entitlement of the plaintiff to the discretionary and equitable relief of specific performance in this case, I do not propose to elaborate the principles in the judgments above referred to and relied upon by the learned counsel for the appellant. The principles reiterated by the Hon'ble Supreme Court in those judgments would certainly support the view which I have taken.
16.The learned counsel for the respondent relied upon the following judgments of the Hon'ble Supreme Court in the case of Baj Singh and others v. Ravinder Singh and others reported in AIR 2006 Punjab and Haryana 154 wherein at paragraph 10 it has been held as follows:
?10. We have minutely gone through the agreement Ex.P1. The agreement specifically provides that "if in terms of the agreement Surjan Singh did not get the sale deed registered, then Ravinder Singh, plaintiff would be entitled to get the deed registered by paying the balance amount". A perusal of the aforesaid term in the agreement clearly shows that the parties had agreed that Shrimati Akko was to sell the land to two purchasers i.e. Ravinder Singh and Surjan Singh. Ravinder Singh was to purchase 22 kanals of land whereas Surjan Singh was to purchase 8 kanals of land. They had also paid the consideration amount of Rs. 7,500/- and Rs. 1,000/-, respectively. Accordingly, it was proved that in case Surjan Singh backed out of his part of the agreement and refused to purchase his share of land, then Ravinder Singh would have a right to purchase the entire land on payment of the entire sale consideration. Admittedly, Surjan Singh had withdrawn from the transaction. He had even taken back the earnest money given by him to Shrimati Akko. In these circumstances, Ravinder Singh had a right, under the agreement, to purchase the entire land on payment of the entire sale consideration. The right of Ravinder Singh to purchase even the share of Surjan Singh is clearly depicted in the agreement Ex.P.l. The interpretation put up on the agreement by the learned trial Court as well as by the learned Single Judge is clearly unassailable.?
It is true that in the above judgment by the Hon'ble Division Bench of Punjab and Haryana High Court the right of one of the agreement holders to enforce the agreement as against the owner is recognised. However, the facts are slightly different. That is also a case where sale agreement was entered into by two purchasers. One of the purchasers backed out and took back earnest money. However, this situation was anticipated even at the time of entering into the agreement. It was agreed that if one of the two purchasers did not want to purchase, then it would be open to the other to purchase the whole of the land on payment of entire sale price. In this case, the enforceability of the agreement is not an issue but the readiness and willingness of the plaintiff while filing the suit and seeking relief by offering only 60% of the sale consideration. Hence, the judgment has no application. Similarly, the learned counsel for the respondent relied upon the judgment of the Hon'ble Supreme Court in the case of Ponnuswami Gounder v. Rama Boyan and others reported in AIR 1979 Madras 130 wherein this Court has held as follows:
?In my opinion, the ratio of the judgment is that where the plaintiff is entitled to the relief, merely because some of them have refused to join him as plaintiffs or even where they do not want the specific performance of the agreement, his right could not be jeopardised by such refusal by the other parties. In such a case, I am of the view that if the defendants do not want to pay the money, the plaintiff would have to pay the entirety of the consideration payable under the agreement to convey or re-convey, as the case may be and on such deposit of the entire money, he would be entitled to get a conveyance of the entirety of the suit property though it should normally be in favour of the plaintiff and the defendants in whose favour the agreement was executed. After the conveyance is executed as such, the rights of the plaintiff and the others, defendants in whose favour the agreement was executed will have to be worked out. The specific performance as such therefore could not be denied to the plaintiff merely on the ground that defendants 2 and 3 have refused to join as plaintiffs or that they do not want the conveyance.?
There is no quarrel with the proposition. However, the plaintiff has failed in this case to come up with an offer in tune with the agreement. In AIR 1979 Madras, the judgment of the Hon'ble Supreme Court in Jahar Roy and another v. Premji Bhimji Mansata and another reported in AIR 1977 SC 2439 for the proposition that even if one of the joint promisee is not willing to join as co-plaintiff the suit is maintainable by showing the other promisee as a proforma-defendant. Quoting the two judgment with approval, in AIR 2009 SC 1749, while dealing with a similar case where one of the joint promisee has withdrawn from the contract and a consent decree was passed in a separate suit freeing the land owners from his obligation to one of the joint promisee, the Hon'ble Supreme Court in G.Jayashree and others v. Bhagwandas S. Patel and others reported in AIR 2009 SC 1749 struck a different note that the sale agreement in the same form cannot be enforced. In this case, the money paid by the second defendant under the agreement is repaid to him and the consent letter given by him though not binding on plaintiff, plaintiff cannot seek specific performance for the whole property. Finally, the learned counsel for the respondent relied upon a judgment of the this Court in the case of Siluvai Rajan @ M.S.Rajan reported in 2014 (1) CTC 467. The above judgment cannot be applied in the present case. In the above case, it has been found as a matter of fact that the plaintiff is ready and willing to perform the part of his contract throughout. Now, the facts in the present case are unassailable that the plaintiff has failed to prove his readiness and willingness in terms of sale agreement.
17.For all the above reasons, the questions of law 1, 2, 5, 7 and 8 are answered in favour of the appellant. In view of the concurrent findings of Courts below, the question of law 3 and 4 answered in favour of the plaintiff / respondent. Question of law No.6 is not properly framed. As a result, this Second Appeal is allowed and the judgment and decree of the lower appellate Court in A.S.No.1 of 2010 are set aside. The judgment and decree of the trial Court dated 07.08.2009 in O.S.No.131 of 2005 on the file of the Sub Court, Uthamapalayam, is restored. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.
To
1.The Subordinate Judge, Uthamapalayam.
2.The Principal District Judge, Periyakulam.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.