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1990 DIGILAW 725 (MAD)

G. Alagarsamy v. K. V. Subba Naidu

1990-08-31

SOMASUNDARAM

body1990
Judgment : The defendant in O.S.No.1229 of 1981 on the file of the District Munsif, Dindigul, is the appellant in this second appeal. The plaintiff in the said suit is the respondent in this second appeal. For the sake of convenience the parties are referred to by their nomenclature given to them in the suit. 2. The plaintiff filed the suit for specific performance of an agreement to reconvey the property described in the plaint schedule. The case of the plaintiff is as follows: "The suit properly belonged to the plaintiff and he sold the same to the defendant on 2. 1975. On the same day an agreement to reconvey the property was executed, by the defendant in favour of the plaintiff for a sum of Rs.5,000. As per the terms of the said agreement, the defendant received a sum of Rs.10 out of the sale price of Rs.5,000 and it was agreed between the parties that the balance of Rs.4,990 should be paid within a period of two years after the lapse of five years from the date of agreement for reconveyance. The plaintiff approached the defendant on two occasions in the year 1979 and requested the defendant to execute the sale deed, but, the defendant refused to execute the sale deed, stating that the period as per the agreement had not started. On 16. 1980 the plaintiff sent a notice to the defendant and was received by the defendant on 7. 1990. As the defendant failed to execute the sale deed, the plaintiff was constrained to file the above suit for specific performance. 3. The defendant resisted the suit contending as follows: "The defendant did not know about the alleged resale agreement dated 2. 1975 and he came to know about the agreement for resale only in the third week of June, 1980. The plaintiff was never ready with money at any time to purchase the property. The plaintiff has no right to enforce the agreement for resale as the agreement itself is not a genuine one. The plaintiff has no capacity to pay the sum of ‘Rs.4990 towards the balance of the sale consideration and he was not ready and willing to perform his part of the contract of sale." 4. The trial court held that the agreement for resale is true, and the plaintiff is entitled to a decree for specific performance. The plaintiff has no capacity to pay the sum of ‘Rs.4990 towards the balance of the sale consideration and he was not ready and willing to perform his part of the contract of sale." 4. The trial court held that the agreement for resale is true, and the plaintiff is entitled to a decree for specific performance. Consequently the trial court decreed the suit as prayed for, As against the judgment of the trial court the defendant filed an appeal in A.S.No.41 of 1984 before the Sub Court, Dindigul. The appellate court confirmed the findings of the trial court and dismissed the appeal. Aggrieved by the judgments of the courts below the defendant has preferred the present second appeal. 5. Mr.K.V.Subramaniam, learned counsel for the defendant strenuously contended that the suit agreement is dated 2. 1975; though the suit for specific performance was filed on 17. 1980 the sale price was deposited into court by the plaintiff only on 19. 1982; Inasmuch as the plaintiff failed to deposit the sale price into court before the expiry of 7 years from 2. 1975 the plaintiff failed to fulfil the stipulations in the sale agreement, Ex.1 and therefore, the plaintiff is not entitled to a decree for specific performance of the contract. In support of his contention learned counsel relied on the decisions reported in Mangalam Pillai v. C.S.A.Udayar, A.I.R. 1976Mad. 360, Samarapuri Chettiar v. A.Sundaram Chettiar, 37 M.L.J. 109: I.L.R. 42 Mad. 802: 521.C. 530, D.Anjaneyalu v. Venkataseshaiah, A.I.R. 1987 S.C. 1641 and C.Rogaiodi v. C.Balarami Reddi, A.I.R. 1989 A.P. 179. There is no merit in the contention of the learned counsel for the defendant. The sale agreement, Ex.A-1 is da ted 2. 1975. As per the terms of Ex.A-1, the plaintiff must be ready and willing to perform his part of the agreement and take the sale deed within 7years from 2. 1975. Admittedly the suit for specific performance was filed on 17. 1980. The entire sale price was deposited before the trial court on 19. 1982. Explanation (1) to Sec.16 of the Specific Relief Act, 1963 provides that where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. The entire sale price was deposited before the trial court on 19. 1982. Explanation (1) to Sec.16 of the Specific Relief Act, 1963 provides that where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. In view of the Ex.(1) to Sec.16 of the said Act, the contention of the learned counsel for the defendant that though the plaintiff filed the suit before the expiry of 7 years prescribed in Ex.A-1, he failed to deposit the sale price into court within the period of 7 years from the date of reconvey-ance agreement dated 2. 1975 and, therefore, the plaintiff has not fulfilled all the conditions and stipulation prescribed in Ex.A-1 and, therefore, he is not entitled to the relief of specific performance, cannot be countenanced. Learned counsel further submitted that in case of reconveyance agreement time is the essence of the contract, whereas in the case of sale agreement time is not the essence of the contract and that Explanation (1) to Sec.16 will apply only to a suit filed for specific performance on the basis of the sale agreement and it will not apply to a case for specific performance filed on the basis of a reconveyance agreement Ex.(1) to Sec.16 does not make any distinction between a suit for specific performance filed on the basis of an agreement for sale and a suit for specific performance filed on the basis of a reconveyance agreement. Ex.(1) to Sec.16 equally applies to a suit for specific performance filed on the basis of a sale agreement as well as a suit filed on the basis of a reconveyance agreement. The contention of the learned counsel to the contra is not warranted by the language of Ex.(1) to Sec.16 of the Specific Relief Act. In this case there is clear evidence that the plaintiff was ready and willing to perform his part of the contract and that he had demanded the defendant to execute the sale deed P.W.I has stated that he was having some ready cash by selling the jewels belonging to his daughter-in-law. In the cross-examination P.W.I has stated that he approached the defendant thrice and he asked him to execute the sale deed and the defendant was evading to execute the sale deed. In the cross-examination P.W.I has stated that he approached the defendant thrice and he asked him to execute the sale deed and the defendant was evading to execute the sale deed. His evidence is that he sent the suit notice, Ex.A-2 dated 16. 1980 asking the defendant to execute the sale deed as per the terms of Ex.A-1. As no reply was received, the plaintiff filed the suit on 17. 1980. On 19. 1980 after filing of the suit the defendant sent a reply under Ex.A-3 asking the plaintiff to pay the amount mentioned in Ex.A-2 within three days from the date of receipt of Ex.A-3 and take the sale deed. The evidence of P.W.I indicates that he demanded the defendant thrice to execute the sale deed. The defendant in his evidence has admitted that in the month of July, 1980 when he went to Aruppukkottai the plaintiffs second son requested him to execute the sale deed. The plaintiff filed the suit after the defendant failed to receive the balance of the sale price and execute the sale deed. When the suit is filed for specific performance in view of Ex.(1) to Sec. 16, it is not necessary for the plaintiff to deposit the amount unless directed by the court. It is pertinent to point out that the suit for specific performance itself is filed within the stipulated period mentioned in Ex.A- 2. On the basis of the evidence available on record, both the courts below have concurrently found that the plaintiff was ready and willing to perform his part of the contract and, therefore, he is entitled to a decree for specific performance. The principles laid down in the various decisions relied on by the learned counsel for the defendant will not apply to the facts of the present case. There is absolutely no infirmity in the judgments of the courts below and the second appeal is liable to be dismissed. Accordingly, the second appeal is dismissed, but, in the circumstances of the case, there is no order as to costs.