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2005 DIGILAW 299 (MAD)

N. K. Goplan v. Thimmathal & Another

2005-02-18

A.R.RAMALINGAM

body2005
Judgment :- Aggrieved against the concurrent judgments of both the courts below in and by which the suit filed by one N.K.Gopal for specific performance of agreement of sale executed by the defendants was dismissed, the plaintiff has filed this second appeal. 2. Brief facts of the suit filed by the plaintiff are as follows. The defendants executed an agreement of sale in respect of the plaint schedule mentioned property for Rs.24,000/= on 25.9.1985 after receiving a sum of Rs.6000/= as advance and stipulating seven months time for completion of sale transaction besides some other incidental clauses. The plaintiff was always having means to pay the agreed sale consideration and always ready and willing to perform his part of the contract and yet, the defendants were not ready and willing to execute the sale deed as agreed under the agreement of sale. So, the plaintiff issued advocate's notice on 12.4.1986 demanding the compliance of the sale agreement. The defendants, in turn, sent a reply notice on 21.4.1986 with false allegations. However, the plaintiff sent a rejoinder to the defendants on 23.4.1986 with true allegations. Even then the defendants did not come forward to perform their part of contract and thereby the plaintiff happened to file the suit. 3. Brief allegations of the written statement filed by the defendants can be stated as follows. It is true that the defendants entered into an agreement of sale with the plaintiff for selling their ancestral properties for Rs.24,000/= and executed the agreement of sale and received Rs.6000/= as advance. It is true that within seven months, the sale should be completed, but, it is not true that the plaintiff was always ready and willing to perform his part of contract. In fact, the plaintiff had no sufficient funds to pay the agreed amount within the stipulated time of seven months for the purpose of completing the sale transaction. Further, the fact remains that the defendants, as soon as they received advocate's notice from the plaintiff, issued reply notice on 21.4.1986 and they were ready to have the sale deed executed in favour of the plaintiff. Further, the fact remains that the defendants, as soon as they received advocate's notice from the plaintiff, issued reply notice on 21.4.1986 and they were ready to have the sale deed executed in favour of the plaintiff. In the reply notice sent by the defendants, it was specifically indicated and intimated to the plaintiff that though the seven months stipulated comes to an end on 25.4.1986, they are ready to execute the sale deed within three more days and the date of 28.4.1986 was fixed as last date for execution of the sale deed and that if the plaintiff fails to get the sale deed on or before 28.4.1986, the agreement of sale itself would get cancelled. Even then the plaintiff was not prepared to perform his part of contract of getting completion of the sale deed as agreed in the sale agreement. In fact, the plaintiff alone was not ready to perform his part of contract and he was delaying the completion of sale by raising so many allegations and doubts in connection with the suit in O.S.No.404 of 1987 on the file of the District Munsif, Sathyamangalam in respect of pathway and about the title and possession of the defendants upon the suit property, etc., and thereby the suit is liable to be dismissed. 4. On trial and after examination of the plaintiff as PW1 and marking of eleven documents as Exs.A1 to A11 and since no oral or documentary evidence was let in on the side of the defendants, the Sub Judge, Gobichettipalayam has found and come to the conclusion that the plaintiff is not entitled to the relief of specific performance on the ground that it is only due to the fault or lapses of the plaintiff and lack of readiness, specific performance could not be performed and consequently, dismissed the suit. 5. On appeal, the Principal District Judge, Erode in A.S.No.103 of 1993 also after having considered the evidence available, has found and come to the conclusion that it is because of the failure and lack of readiness on the part of the plaintiff, the specific performance could not be performed and thereby the plaintiff cannot have the right to seek for specific performance by way of suit when there is no fault on the part of the defendants and consequently, dismissed the appeal by confirming the judgment and decree of the Sub Court. 6. 6. I have gone through the entire oral and documentary evidence available in this case in the light of the judgments of both the courts below and the arguments of the counsel appearing for either side in detail. From this, the following important and material factors can be taken into consideration for appreciation and conclusion. There is no dispute between the parties that they entered into the agreement of sale marked as Ex.A1 dated 25.9.1985. The fact remains that after filing of the suit, the plaintiff has chosen to purchase the half share of the second defendant for Rs.12,000/= within the plaint schedule property under sale deed dated 26.8.1991 marked as Ex.A9 and he was not prepared the amend the plaint and its prayer suitably. Therefore, it has to be appreciated as to whether the plaintiff was not ready and willing with sufficient funds to perform his part of the contract of sale or the defendants and particularly the first defendant was not ready to fulfil their part of the contract of sale. 7. It is needless to state that the relief of specific performance is a discretionary one that can be granted by the court depending upon various facts and circumstances of each case. Likewise, generally, time is not the essence of contract in respect of agreement of sale pertaining to immovable property. In this case, the stipulated time of seven months come to an end on 25.4.1986. The plaintiff, at the fag end of the stipulated time viz., 12.4.1986, has issued advocate's notice marked as Ex.A2 stating therewith that he was always ready and willing to perform his part of the contract and inspite of the demands, the defendants alone were delaying the execution of sale deed and thereby the within one week from the receipt of the said notice, the defendants should execute the sale deed. On the other hand, on receipt of the said notice, the defendants have issued reply notice marked as Ex.A3 on 21.4.1986 stating therewith that they are not liable to execute the sale deed in piecemeal of the properties and they are only liable to execute the sale deed for the entire property in favour of the plaintiff and they are always ready to perform their part of the contract and even though seven months period expires on 25.4.1986, they are prepared to give time by three days more i.e., upto 28.4.1986 for the purpose of enabling the plaintiff to get the sale deed executed in his favour. But, surprisingly, the plaintiff, in turn, has chosen to issue rejoinder, marked as Ex.A4, on 23.4.1986 itself, i.e., within three days making allegations therewith that the plaintiff comes to know that the defendants have no title upon the suit property and they have no patta in their names and only if the defendants are prepared to show their title deeds, the plaintiff could be ready to pay the remaining amount and get the sale deed executed. This kind of allegations made in Ex.A4 issued by the plaintiff undoubtedly go to show that the plaintiff was not ready and willing to perform his part of the contract even within the three days grace time given by the defendants under Ex.A3 and the plaintiff has tried to justify himself with unjustifiable and unacceptable allegations belatedly. It is more so when the plaintiff has not chosen to make such allegations about the question of title, question of possession, question of title deeds, question of patta, etc., in his earlier notice dated 12.4.1986 marked as Ex.A2. From this circumstance, it is clear that the defendants alone appeared to be ready and willing to perform their part of the contract even after the seven months period by giving three days specific grace time. When that being so, no prudent man would keep quiet without trying to pay the remaining amount and get the sale deed executed and there is no necessity to issue the rejoinder with so many allegations doubting the title, patta, possession, etc. 8. When that being so, no prudent man would keep quiet without trying to pay the remaining amount and get the sale deed executed and there is no necessity to issue the rejoinder with so many allegations doubting the title, patta, possession, etc. 8. Further, if really as per Ex.A4 rejoinder, the plaintiff was having doubt upon the title, patta, possession, etc., there is no reason as to how he was prepared to get the half share of the second defendant that too long after expiry of seven months time of the agreement of sale to get the sale deed for Rs.12,000/= on 26.8.1991. By which, does the plaintiff mean that his doubt and apprehension were cleared in the meanwhile. Only in the witness box, the plaintiff has chosen to say that no relief is needed against the second defendant and the relief is needed only against the first defendant. Another factor to be noted is that the plaintiff has tried to say as if he was always having sufficient funds. He has produced Ex.A5 which is a xerox copy of fixed deposit receipt for Rs.18,000/=. But, when the agreement of sale is dated 25.9.1985, this Rs.18,000/= has been deposited in the bank only on 18.1.1988 i.e., long after expiry of the agreement of sale. By this deposit receipt, it cannot be shown that he was always ready to perform his part of the contract even before expiry of the agreement of sale. 9. Moreover, the plaintiff has raised a doubt as if there is dispute upon the pathway leading to the suit property inasmuch as the suit in O.S.No.404 of 1987 has been filed by some Muslims on the file of the District Munsif, Sathyamangalam as evidenced by Ex.A11 (plaint copy) and that plaint is relating to S.No.271 and 269 only. Further the fact remains that that suit is not relating to the suit property and its survey number or in other words, the suit in O.S.No.404 of 1987 is not at all concerned with the suit property and thereby there is no necessity for the plaintiff to state that suit as a reason for raising doubt whether the defendants are having proper title, pathway, etc., to the suit property. Likewise, another doubt raised by the plaintiff as if O.S.No.154 of 1986 has been filed by one Ponnammal for partition and maintenance and thereby there is some encumbrance upon the title of the defendants upon the suit property and the judgment in that suit has been marked as Ex.A10. However, the fact remains that the suit in O.S.No.154 of 1986 itself has been instituted subsequent to the exchange of notices viz., Exs.A1 to A4 between the plaintiff and defendants and in fact, the said suit in O.S.No.154 of 1986 itself appears to have been filed on 3.11.1986. Therefore, the conduct of the plaintiff indicates that he was all along delaying the completion of sale in one pretext or other as if there is doubt upon the title, patta, pathway, maintenance suit, etc., and consequently, in all reasonableness, though, legally, time is not essence of the contract relating to immovable properties, the conduct of the plaintiff shows that he was not ready and willing to perform his part of the contract promptly irrespective of the fact that the defendants were ready to execute the sale deed by giving three days grace time after expiry of seven months period fixed. 10. Further, an attempt has been made by the plaintiff to show as if he has purchased the properties for valuable consideration under Exs.A6 to A9 which are respectively of the year 1986, 1987, 1988 and 1991. These are all documents long after the expiry of seven months period stipulated and expression of the defendants about their willingness to complete the sale by giving three days grace time and also about the importance of time as essence of contract, etc. Whatever may be the conduct of the plaintiff in purchasing so many properties in the years 1986, 1987, 1988 and 1991, that does not mean that he was having sufficient funds and always ready and willing to complete the sale even after expiry of the period of agreement of sale and particularly within the time granted by the defendants specifically with emphasis. 11. 11. If all these aspects are cumulatively taken into consideration, it is very clear that the plaintiff alone was not at all ready and willing to have the sale completed as agreed by him under Ex.A1 and such conduct, in my view, is not justified and it should not be at the risk of inconvenience or loss of interest of the defendants and particularly the first defendant. The relief of specific performance, as I have already indicated above, is a discretionary relief and in the circumstances of this case, I think fit that the plaintiff has no right or justification to claim the relief of specific performance in the suit against the first defendant. Therefore, the concurrent judgments of both the courts below, in my view, cannot be found fault and the second appeal has no merits in a way inviting this court to interfere with the judgments of the courts below. 12. In the result, the second appeal fails and the same is dismissed with costs.