Kochappu v. Somasundaram Chettiar — 1990 DIGILAW 361 (KER)

JUDGMENT S. Padmanabhan, J. 1. These two appeals are from the judgments of the Subordinate Judge, Palakkad in O. S. Nos. 288 of 1982 end 225 of 1983. Both the suits relate to 8.97 acres of land owned by Somasundaran Chettiar, who is the sole plaintiff, in O. S. No. 288 of 1982 and sole defendant in O. S. No. 225 of 1983. O. S. No. 225 of 1983 was thereafter filed by Kochappu, the sole defendant in O. S. No. 288 of 1982 against the plaintiff in that case. O. S. No. 288 of 1982 is for injunction. That suit was decreed and the decision was confirmed in appeal. S. A. No. 433 of 1989 by the defendant is against the concurrent injunction decrees. O. S. No. 225 of 1983 is for specific performance of Ext. A1 contract of sale of the suit property in which the plaintiff claimed that he was put in possession by way of part performance. That suit was dismissed and A. S. No. 333 of 1986 was filed by the plaintiff against the dismissal. 2. In S. A. No. 433 of 1983, no question of law, much less any substantial question of law, arises. Possession and cause of action for injunction alone are relevant. On the evidence, both the courts found those factual questions in favour of the plaintiff. No interference is required and S. A No. 433 of 1989 has only to be dismissed. 3. Ext. A1 agreement is admitted. In O. S. No. 225 of, 1983, on the evidence, the trial court found that the defendant was ready and willing to perform the contract and continued to be so, but the contract was broken by the plaintiff. Time was also found to be the essence of contract. These are the aspects arising for consideration in A, S, No. 333 of 1986. 4. Ext. A1 is dated 10.5.1981. The agreement was to sell the property for Rs. 75,000/-. Rs. 7500/- was paid as earnest money for the due performance of the contract. Time stipulated was one year. The obligations to be discharged by the defendant before executing the sale deed are: (a) to measure and convince the area; and (b) to satisfy that there is no encumbrance and tax is paid up to date. On these aspects, much dispute is not there. Time stipulated was one year. The obligations to be discharged by the defendant before executing the sale deed are: (a) to measure and convince the area; and (b) to satisfy that there is no encumbrance and tax is paid up to date. On these aspects, much dispute is not there. The plaintiff entered into agreements with the three brothers of the defendant for purchase of their adjacent lands. These properties were measured and sale deeds taken. In the box, he admitted that there was no difficulty in measuring these properties also. 5. But, in order to bring about that he was ready and willing and breach was only on the part of the defendant, he contended that the defendant had two more obligations under Ext. A1. (a) to get two kudiyiruppukars evicted from the property in order to give vacant possession; and (b) to settle disputes with his agricultural labourers, who were creating troubles in cultivating the land. Unfortunately, these contentions are not borne out by Ext. A1. Ext. A1 was executed in 1981 at a time when kudiyiruppukars had fixity under Act 1 of 1964 as amended by Act 35 of 1969. It was impossible to evict them. If the parties intended such an obligation to be placed on the vendor as one of the conditions of contract, it would definitely have found a place in the agreement in specific terms. Respondent says that he had only one kudiyiruppukaran and he was not agreed to be evicted. There is no evidence to the contrary. As PW 1, the appellant frankly admitted that he refused to take the sale deed on this ground. That itself is sufficient to find that the appellant alone was responsible for the breach. 6. Ext. A1 is equally silent about settling any dispute with agricultural labourers. Respondent says that he had only one agricultural labourer and he had no problem with him to be settled and there was no such agreement also It appears that the other three brothers of the respondent bed such problems and it was one of the conditions of the agreements with them. That seems to have been settled, under Ext. A2, to which the respondent was not a party. Disputes with nine agricultural labourers were settled on payment of Rs, 18,000/- (Rs. 2,000/- each to the labours). Rs. 13,500/- had to be given by the three owners and Rs. That seems to have been settled, under Ext. A2, to which the respondent was not a party. Disputes with nine agricultural labourers were settled on payment of Rs, 18,000/- (Rs. 2,000/- each to the labours). Rs. 13,500/- had to be given by the three owners and Rs. 4,500/- by the appellant. The entire amount was paid by the appellant to be adjusted in the tale deeds. That was paid and adjusted. Now the appellant wants to bring about that Ext.A2 was on behalf of the respondent also. There is no evidence. Even accepting that contention as correct, the liability of the respondent could only be for one-fourth of Rs. 13,500/- But the appellant wants the entire Rs. 13,500/- to be adjusted from the respondent in paying the balance for getting specific performance. Mala fide it clear. Anyhow, he now admits that such a condition does not now survive as it was settled. 7. In the plaint, there is no prayer for getting the kudikidappukars vacated. Appellant claimed to be in possession and wanted sale deed alone to be executed. Admittedly no kudiyiruppukaran was evicted. In the alternate prayer for getting possession also, the issue of kudiyiruppukars was not raised. That means, these the conditions were raised only to cover up his laches and they are without bona fides. 8. The attitude of the appellant in taking law into his hands to trespass upon the property and construct a shed in April 1982, when the term of the agreement was to expire on 10-5-1982, is another act of mala fide to cover up failures to gain grounds for bargaining. That is not the attitude of a bona fide contracting party who is willing to perform his part and interested in getting specific performance. He did not do anything before 10-5-1982 to get the sale deed executed. Ext. A3 notice claiming specific performance within fifteen days was issued by him only on 11-5-1982, as if he was given possession on the date of Ext. A1 itself Ext. A1 is silent about it and Ext. A 2 executed on a later date is also silent in this respect, The present case is that possession was given only the date of Ext. A2. That is belied by Ext. A2. A1 itself Ext. A1 is silent about it and Ext. A 2 executed on a later date is also silent in this respect, The present case is that possession was given only the date of Ext. A2. That is belied by Ext. A2. Even today, the balance of sale consideration is not deposited Even though by Ext A2 he was obliged to make funds ready and inform the respondent before the expiry of the term, he did not do so. He says that funds are available with him in bank. No record is produced to evidence that. From the three brothers of the respondent, he took sale deeds in November and December 1981 and March 1982. That may be the reason why he was short of funds and wanted to gain time by mala fide means. At least in the light of the forfeiture clause in Ext. A1, the appellant would have come forward to claim a sale deed even before the expiry of the term, if he was actually ready and willing. 9. Specific performance is an equitable discretionary relief, which cannot be claimed as a matter of right. As held in Smt. Raj Rani Bhasin and others v. Kartar Singh Mehta (AIR 1975 Delhi 137), the person, who claims such a relief, must satisfy the court about his readiness and willingness and the continued readiness and willingness, as enjoined by S.16(c) of the Specific Relief Act, right from the time of contract till the date of decree. Readiness and willingness are distinct and separate and they will have to coincide. Readiness connotes the equipment, which includes the capacity to perform the contract. Possession of funds and other resources may be comprehended in it. Even a person, who is ready with all these equipments, may not be having the mental aptitude to take the sale deed. Therefore, along with the readiness, he must have the mental attitude of willingness also. Willingness could be ascertained from conduct and attendant circumstances. It is clear that the appellant was not only not ready and willing but he was acting mala fide also. One, who seeks the equitable relief must not only be ready and willing, but he should also come to court with clean hands and genuine and bona fide allegations. Mala fide itself will be a ground for refusing the relief. It is clear that the appellant was not only not ready and willing but he was acting mala fide also. One, who seeks the equitable relief must not only be ready and willing, but he should also come to court with clean hands and genuine and bona fide allegations. Mala fide itself will be a ground for refusing the relief. The trial court was, therefore, fully justified in refusing specific performance. 10. Therefore it is not necessary for me to consider whether time was the essence of the contract. But I shall consider that aspect also for finality and because it was argued at length. Under S.55 of the Contract Act non-performance of time bound promises will give an option to the opposite party to avoid the contract provided it was the intention of the parties that time should be of the essence of the contract. The question whether time was intended by the contracting parties to be the essence of contract is a matter to be decided in the light of many factors. In a contract for sale of immovable property, time is not considered as the essence of contract. Even then parties can by agreement treat time as the essence of the contract. But such an agreement cannot be inferred merely from a time limit fixed or a default clause in the contract. Such clauses may be there in many contracts. The question has to be decided by gathering the intention of the parties evidenced by express stipulations or circumstances connected with the transaction and the conduct, which are sufficiently strong to displace the ordinary presumption that in a contract for sale of land, stipulation as to time is not the essence. Time, which was not considered as the essence, originally could be made essence subsequently by serving notice on the opposite party. Intention, if exposed in writing must be in language which is unmistakable. It may also be inferred from the nature of he property agreed to be sold, the possibility of price fluctuation, the need to entering into the contract, conduct of parties and surrounding circumstances at or before the contract. A stipulation that time is the essence of the contract will have to be read along with other provision and such other provisions may, on construction of the contract, exclude the inference or strengthen the inference that time is the essence. A stipulation that time is the essence of the contract will have to be read along with other provision and such other provisions may, on construction of the contract, exclude the inference or strengthen the inference that time is the essence. That is gist of the principles enumerated in the decisions in Gomathinayagam Pillai and others v. Palaniswami Nadar (AIR 1967 S. C 868), Govind Prasad Chaturvedi v. Hari Dutt Shastri and another ( AIR 1977 SC 1005 ) and M/s Hind Construction Contractors v. State of Maharashtra ( AIR 1979 SC 720 ), cited before me. 11. Ext. A1 fixed a period of one year. Time was stated to be the essence of the contract and it is further stipulated that this provision is inserted after due deliberations considering all the aspects. That fact was admitted by the appellant as PW 1. Rs. 7,500/- paid was stated to be earnest money for ensuring performance within the time limit itself. Default to take the sale deed within that period was agreed to meet with penal consequences of forfeiting the earnest money and enabling the respondent to deal with the property in his own way from the next day onwards. It is further stated that from 11-5-1982 onwards the contract will get annulled and inoperative. It was pacifically stated that before the expiry of the time, the appellant will have to collect funds and give intimation to execute the sale deed. All these are clear indications that time was really intended to be the essence. In this case, even if time is not the 'essence, it will not help the appellant because he has broken the contract. Further, he approached the court with false allegations after making an attempt to take law into his hands. 12. It is true that the ordinary rule is that specific performance should be granted when the requirements are satisfied and that it ought to be denied only when equitable considerations enumerated in S.20 of the Specific Relief Act point to its refusal and the circumstances show that damages would constitute an adequate relief (Prakash Chandra v. Angadlal and others - A. I. R 1979 SC 1243). Prejudice is also a consideration as held in Dr. Jiwan Lal and others v. Brij Mohan Mehra and another ( AIR 1973 S.C.) 559 ). But none of these questions may arise in this case. Prejudice is also a consideration as held in Dr. Jiwan Lal and others v. Brij Mohan Mehra and another ( AIR 1973 S.C.) 559 ). But none of these questions may arise in this case. Both the appeals are dismissed with costs.