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2002 DIGILAW 191 (MAD)

Manickam v. S. A. Ramaswamy Gounder

2002-03-06

P.D.DINAKARAN, S.JAGADEESAN

body2002
P.D.Dinakaran, J.: Heard both sides. 2.1. The above appeal is directed against the judgment and decree dated 3.3.2000 in Appeal No.773 of 1985 reversing the judgment and decree in O.S. No.1111 of 1979, dated 6.5.1985 of the learned Subordinate Judge, Coimbatore, for specific performance of an agreement dated 2.4.1976. 2.2. For the purpose of convenience, the parties are arrayed as per their rank in the suit. The appellant is the plaintiff in the suit. 3.1. The plaintiff laid O.S. No.1111 of 1979 for specific performance of an agreement of sale dated 2.4.1976, alleging that he entered into the said agreement with the defendant and his son one Palanimuthu for sale consideration of Rs.80,000 and paid a sum of Rs.6,000 on 2.4.1976 and agreed to pay the balance of Rs.74,000 at the time of registration of the sale deed. 3.2. Admittedly, on the date of agreement, viz., 2.4.1976, a Second Appeal No.1606 of 1973 was pending with regard to the suit property against the judgment and decree in O.S. No.364 of 1953 on the file of the learned Subordinate Judge, Coimbatore, between the defendant and his son palanimuthu. Subsequently, the said Palanimuthu got an assignment of the suit property in the said suit O.S. No.364 of 1953, and therefore, he was made a party to the agreement along with the defendant. After the disposal of the second appeal on 28.4.1977, the said Palanimuthu had given up his rights in favour of the defendant. Hence, the said Palanimuthu was not impleaded as a party in the present suit for specific performance. 3.3. The plaintiff further states that he also paid a sum of Rs.4,000 on 9.4.1976 and took possession of the front portion of the suit property and spent about Rs.15,000 for repairing the suit building. 3.4. According to the plaintiff, the sale agreement dated 2.4.1976 was modified on 1.9.1976 extending the period of execution of the sale deed upto 10.5.1977, on condition that the defendant should take steps to dispose of the Second Appeal No.1606 of 1973 on or before 10.5.1977. The plaintiff also agreed to pay a sum of Rs.600 per mensem from 10.11.1976 to 10.5.1977, and the defendant agreed to vacate his tenants Palanisamy and his mother on or before 10.5.1977, to handover vacant possession of the suit property, and to execute the sale deed on receipt of the balance of Rs.70,000 on or before 10.5.1977. 3.5. The plaintiff also agreed to pay a sum of Rs.600 per mensem from 10.11.1976 to 10.5.1977, and the defendant agreed to vacate his tenants Palanisamy and his mother on or before 10.5.1977, to handover vacant possession of the suit property, and to execute the sale deed on receipt of the balance of Rs.70,000 on or before 10.5.1977. 3.5. However, alleging that the defendant failed to comply with the above terms and conditions of the sale agreement dated 2.4.1976, the plaintiff issued a legal notice dated 6.5.1977, to the defendant to complete the transaction, but by a letter dated 17.8.1977, the defendant informed that he could not convey the suit property without the consent of this son, as the same is a joint family property. 4.1. The defendant resisted the suit contending that the plaintiff was not ready and willing to complete the transaction, even though the tenants vacated the portion long back and the defendant was ready to handover the rear portion also to the plaintiff, and that the plaintiff was not entitled for the relief of specific performance, as he had committed default and was guilty of violation of the conditions of contract. 4.2. It was also contended that the suit property was a joint family property. 5.1. The plaintiff examined himself as P.W.1 and marked 80 documents, i.e., Exs.A-1 to A-89 and the defendant examined himself as DW1 and marked 80 documents, i.e., Exs.B-1 to B-80, and one Krishnaswami Gounder was examined as Court witness and through him 14 documents were marked as Exs.C-1 to C-14. 5.2. After appreciating the above evidence, the trial Court decreed the suit as prayed for. 6.1. The unsuccessful defendant preferred Appeal No.773 of 1985 before this Court and contended that, the suit property was not an absolute property of the defendant; the suit was bad for non-joinder of Palanimuthu, the son of the defendant; the plaintiff was not ready and willing to pay the balance of sale consideration and failed to perform his part of obligation in time, as per the sale agreement dated 2.4.1976, and therefore, the plaintiff was not entitled for the relief as prayed for. 6.2. The plaintiff, per contra, contended that the non-joinder of Palanimuthu, the son of defendant, was not fatal, as he had already given up his rights in favour of his father, viz., the defendant. 6.3. 6.2. The plaintiff, per contra, contended that the non-joinder of Palanimuthu, the son of defendant, was not fatal, as he had already given up his rights in favour of his father, viz., the defendant. 6.3. The learned single Judge, upon the above rival submissions, held that there was no necessity to decide whether the suit property was a joint family property or absolute property of the defendant in the present suit for specific performance; an that the defendant was not entitled to raise the plea that the time was the essence of the contract, at the appeal stage. 6.4. The learned single Judge, after appreciating the documents marked as Exs.A-1 to A-5, A-8, A-10, A-12, A-15 to A-20, A-27 to A-30, A-40, A-62, A-79, A-81 and A-89 and Exs.B-1, B-4, to B-17, B-22, B-37, B-39, B-46, B-54, B-75 and B-80, further found that the period of agreement was extended up to 10.5.1977, and the Second Appeal No.1606 of 1973 was disposed of on 28.4.1977 itself, and therefore, there was no reason for the plaintiff to file the present suit only on 3.9.1979. Hence, applying the ruling in K.S.Vidyanandan v. Vairavan, A.I.R. 1997 S.C. 1751, the learned single Judge held that the plaintiff had not chosen to perform his part of obligation, within the stipulated time. That apart, applying the ruling in Dwaraka Prasad Singh v. Harikant Prasad Sigh, A.I.R. 1973 S.C. 655, that all the parties to the original agreement are necessary parties in a suit for specific performance, the learned single Judge held that the suit as framed is not maintainable in law for non-joinder of Palanimuthu, and therefore, allowed the first appeal and dismissed the suit. Hence, the plaintiff has preferred the above letters patent appeal. 7.1. Mr.S.V.Jayaraman, learned senior counsel for the plaintiff, contends that the plaintiff was ready and willing to perform his part of the contract, but the defendant herein was delaying to vacate the rear portion of the suit property and to handover the same to the plaintiff, even though Second Appeal No.1606 of 1973 was disposed of as early as on 28.4.1977, and the non-joinder of Palanimuthu is not fatal as he had already given up the rights over the suit property in favour of the defendant. 7.2. 7.2. Mr.S.V.Jayaraman, learned senior counsel for the plaintiff, also brought to our notice that the plaintiff was paying rent at Rs.600 per mensem till the execution of the sale deed, to show this bona fide. 7.3. The learned senior counsel for the plaintiff invited our attention to the evidence that the tenants were vacated only in January, 1979 and immediately thereafter, the plaintiff deposited the entire balance amount in bank on 24.3.1979 as evident from Exs.A-39 and A-40 and proved his bona fide as well as his readiness and willingness. Mr.S.V. Jayaraman, learned senior counsel for the plaintiff, placing reliance on the decision of the Apex Court in Motilal Jain v. Ramdasi Devi, A.I.R. 2000 S.C. 2408, contends that the delay in filing the suit cannot be a valid reason to deny the relief of specific performance. 8.Per contra, Mr.M.V. Venkataseshan, learned senior counsel for the defendant, reiterated the defence referred to above, in the light of the findings of the learned single Judge. 9. The issues that arise for our consideration in the above appeal are: (i) Whether the suit is bad for non-joinder of Palanimuthu, the son of the defendant? (ii) Whether the plaintiff was ready and willing to perform his part of the obligation? 10.1.Issue 1: Whether the suit is bad for non-joinder of Palanimuthu, son of the defendant? 10.2. Admittedly, Palanimuthu had given up his rights in the suit property in favour of the defendant after execution of the suit agreement dated 2.4.1976. If that be so, Palanimuthu can no more be considered as a proper and necessary party to the suit. Hence, in our considered opinion, the suit, as prayed for, cannot be held to be bad for non-joinder of Palanimuthu. Hence, the decision in Dwaraka Prasad case, A.I.R. 1973 S.C. 655 referred supra, will not, in any way, improve the case of the defendant to contend that the suit is not maintainable for non-joinder of Palanimuthu. 10.3. Issue 1 is answered accordingly. 11.1.Issue 2: Whether the plaintiff was ready and willing to perform his part of the obligation? 11.2. Hence, the decision in Dwaraka Prasad case, A.I.R. 1973 S.C. 655 referred supra, will not, in any way, improve the case of the defendant to contend that the suit is not maintainable for non-joinder of Palanimuthu. 10.3. Issue 1 is answered accordingly. 11.1.Issue 2: Whether the plaintiff was ready and willing to perform his part of the obligation? 11.2. We are obliged to take note of the fact that the plaintiff had made the payment of Rs.6,000 on 2.4.1976 i.e., the date of agreement, and again paid a sum of Rs.4,000 on 9.4.1976, and took possession of the front portion of the suit property, agreeing to pay the balance amount before 10.5.1977, on condition that the defendant should take steps to dispose the Second Appeal No.1606 of 1973 and vacate the tenants, who were occupying the rear portion of the suit property. To show his bona fide, the plaintiff was also willingly paying rent at Rs.600 per mensem for the front portion occupied by him. But, even though the second appeal was disposed of on 28.4.1977, the defendant got the rear potion vacated only in January, 1979. Immediately, the plaintiff deposited the balance sale consideration and sought for performance of the agreement. Therefore, in our considered opinion, the decision in K.S.Vidyanandan case, A.I.R. 1997 S.C. 1751 referred supra, is not applicable to the facts and circumstances of the present case, as the defendant had not chosen to vacate and handover the rear portion of the property, as per the agreement of sale dated 2.4.1976, which stood extended on 1.9.1976 up to 10.5.1977, as admittedly, Second Appeal No.1606 of 1973 was disposed of on 28.4.1977 itself, but the rear portion of the suit property was vacated only during January, 1979. Hence, the delay in approaching the Court on 3.9.1979, in our considered opinion, would not amount to laches on his part, in as much as, the laches on the part of the agreement holder- plaintiff in approaching the Court, seeking its interference for equitable relief, deserves to be considered in the light of the evidence, facts and circumstances of the case. We, having satisfied that the defendants, who is the owner of the property, had contributed for the laches, hold that such laches will not be a ground to refuse the relief of specific performance to the plaintiff/ agreement-holder. 11.3. We, having satisfied that the defendants, who is the owner of the property, had contributed for the laches, hold that such laches will not be a ground to refuse the relief of specific performance to the plaintiff/ agreement-holder. 11.3. The following aspects of the delay in filing the suit are relevant to be considered in a case of specific performance of contract for sale of immovable property, as held by the Apex Court in Motilal Jain case, A.I.R. 2000 S.C. 2408 referred supra: (i) delay running beyond the period prescribed under the Limitation Act; (ii) delay in cases where though the suit is within the period of limitation, yet: (a) due to delay the third parties have acquired rights in the subject matter of suit; (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief. 11.4. In the instant case, the delay on the part of the plaintiff does not fall under either of the above categories. Therefore, in view of the fact that the defendant had caused delay in vacating and handing over the rear portion of the suit property till January, 1979, even though Second Appeal No.1606 of 1973 was disposed of on 28.4.1977 and the said Palanimuthu had given up his right over the suit property, the delay in filing the suit, i.e., on 3.9.1979, seeking specific performance of agreement of sale dated 2.4.1976, cannot be either fatal to seek the relief as prayed for or a valid ground to reject the relief of specific performance to the plaintiff. 11.5. That apart, the defendant had chosen to advance a case that the suit property is a joint family property, which would considerably indicate that the defendant was at fault in performing his part of obligation. 11.6. Hence, issue 2 is answered accordingly. In the result, the appeal is allowed and consequently, the judgment and decree of the learned single Judge dated 3.3.2000 in Appeal No.773 of 1985 is set aside and the judgment and decree of the trial Court dated 6.5.1985 in O.S.No.1111 of 1979 is confirmed. No costs.