Judgment : Aggrieved by the judgment and decree passed by the District Judge, Coimbatore in A.S. No.184 of 1996, dated 112. 1997 confirming the judgment and decree dated 17. 1996 passed in O.S. No.122 of 1989 by the Subordinate Judge, Coimbatore, the defendants have come forward with this second appeal. 2. The facts leading to the filing of this appeal are as follows: a. The defendants 1 to 3, who are the owners of the schedule mentioned properties, entered into an agreement of sale with the fourth defendant Ponnusamy on 6. 1982. He paid a sum of Rs.20,000/- as advance on the date of the agreement. Subsequent to the agreement, one minor Vijeyen, who is the son of the third defendant, represented by his mother Poovathal has filed a suit in forma pauperis in O.P. No.170 of 1982, claiming partition of the suit properties into two shares, which is pending on the file of the Subordinate Court, Coimbatore as O.S.No.97 of 1985. b. Despite repeated requests from the fourth defendant, as the defendants failed to form a layout and approval for the said property, he assigned his right of specific performance to the plaintiff on 112. 1984 on receiving a sum of Rs.20,000/- from the plaintiff. Even after the specific requests of the plaintiff and was willing and ready to execute the sale deeds as the defendants failed to cooperate with the plaintiff in getting the approval of the plan and execute the sale deed, the plaintiff has come forward with the said suit for specific performance. 3. Denying the averments made in the plaint, the defendants have filed their written statement. 4. At the conclusion of the trial, on the basis of oral and documentary evidence the Trial Court decreed the suit and the appeal filed by the defendants was dismissed. Hence the present second appeal by the defendant. 5. On consideration of factual and legal aspects of this case, this Court framed following substantial questions of law, while admitting this second appeal. Hence the present second appeal by the defendant. 5. On consideration of factual and legal aspects of this case, this Court framed following substantial questions of law, while admitting this second appeal. .a. Whether the Courts below are correct in law in decreeing the suit for specific performance without considering the delay or laches on the part of the plaintiff to perform his part of the contract in view of the decision K.S. Vidyanadam v. Vairavan reported in AIR 1997 SC 1751 : (1997) 3 SCC 1 .b. Whether the Courts below are right in law in coming to the conclusion that the suit filed by the plaintiff is not barred by limitation as provided under Article 54 of the limitation Act? 6. Heard both sides. 7. The learned senior counsel appearing for the appellants/defendants would vehemently contend that both the Courts have erroneously decided the case factually as well as legally. 8. As far as the legal position referred in the first substantial question of law is concerned, the learned senior counsel would point out that even though time is not essence of the contract made in the agreement dated 6. 1982 in respect of the immovable property, the first respondent herein, as an assignee of Exhibit A-1 in his favour, has not come forward to perform the contract within a reasonable time. 9. It is emphasized by the learned senior counsel that a perusal of Exhibits A-1 to A-3 reveal the fact that the time given for performing the said contract was one year. However, both the Courts have erroneously decided that the performance of the said contract would arise only after obtaining the layout from the concerned authority as mentioned in para-5 of the said agreement. .10. Further, the learned senior counsel would point out that in para 3 of the said agreement, it is categorically referred to as follows: .TAMIL 11. At the time of the agreement made between the fourth defendant and the defendants 1 and 2, one year time was fixed for completing the contract. In such circumstances, the limitation starts from the date of expiry of such one year time. In other words, the limitation in this case starts on 6. 1983, 12. At the time of the agreement made between the fourth defendant and the defendants 1 and 2, one year time was fixed for completing the contract. In such circumstances, the limitation starts from the date of expiry of such one year time. In other words, the limitation in this case starts on 6. 1983, 12. In these circumstances, if the defendants 1 to 3 did not cooperate with or assist the agreement holder as well as the assignment holder for obtaining the necessary permission from the authority, then they should have filed, the suit for breaching the said contract within three years, i.e. on 6. 1985. 13. As far as the case is concerned, it is pointed out that the assignment holder approached the Court and filed the suit for breaching the said contract against the defendants only on 13. 1989. In such circumstances, the said suit filed by the assignment holder is barred by limitation and he is not. Entitled to obtain any relief against the defendants 1 to 3 for breaching the contract. 14. Further, the learned senior counsel would submit that as far as this case is concerned, the fourth defendant in the suit entered into an agreement with the defendants 1 to 3 on 6. 1982. Thereafter, on 25. 1983, after the expiry of one year, by mutual understanding between the agreement holder and the defendants, the time for performing the said contract was extended to another one year. In other words, for performing the said contract, time was extended upto 6. 1984. Thereafter, the agreement holder, the fourth defendant in the suit assigned the said agreement in favour of the first respondent/plaintiff on 112. 1984 on which date a separate document was executed between the assignment holder and the respondent/plaintiff herein. The said assignment under Exhibit A-3 was witnessed by one Ananda Raman and one Subburathinam. Exhibit A-3 was written by one Sarojini on 112. 1984. 15. In this regard, it is vehemently emphasized by the learned senior counsel that even though the time is not the essence of contract, the agreement holder as well as the assignee have not come forward to perform the contract within the stipulated time. 16. It is seen that till the execution of assignment in favour of the first respon-dent/plaintiff, the fourth defendant in the suit was the agreement holder. 16. It is seen that till the execution of assignment in favour of the first respon-dent/plaintiff, the fourth defendant in the suit was the agreement holder. He was holding the said agreement in his favour from the date of execution, i.e. 6. 1982 till the execution of the assignment in favour of the first respondent on 112. 1984. 17. It is noted that till such period the agreement holder Ponnusamy has not come forward and informed the defendants that he was ready and willing to perform the contract. No steps have been taken by him either in person or through a notice to insist the defendants to perform the contract. 18. The reason stated by the first respondent/plaintiff for causing the delay in performing the said contract is that the 3rd defendants son filed a separate partition suit against the share holders and also the agreement holder. Another reason stated by the first respon-dent/plaintiff is that the defendants 1 and 3 have not cooperated with him for getting approval of layout from the authority concerned. These facts have been stated by the first respondent/plaintiff in the plaint. 119. While adducing evidence before the trial Courts P.W.1 assignment holder has categorically stated these facts in his evidence. 120. According to P.W.1, as soon as he obtained the assignment in his favour from Ponnusamy, he informed the same to the defendants through the persons and also through the panchayatedars. However, this fact has not been established by P.W.1 by examining the persons concerned. 121. P.W.1 in his cross examination has stated that the agreement holder urged the defendants to perform the contract and also denied the suggestions put forth by the defendants. P.W.1 has stated as follows: 122. A careful perusal of the above evidence adduced by P.W.1 would clearly reveal the fact that for performing the said contract, the agreement holder Ponnusamy insisted on the defendants 1 to 3 in person, however, in spite of his request, the defendants never performed the said contract. Whatever the evidence adduced by P.W.1, in this regard, has not been corroborated by other witnesses. Moreover, to establish the bona fide intention to perform the said contract, the agreement holder Ponnusamy as well as the first respondent/plaintiff never issued any notice through a lawyer expressing their willingness and readiness to perform the said contract. 123. Whatever the evidence adduced by P.W.1, in this regard, has not been corroborated by other witnesses. Moreover, to establish the bona fide intention to perform the said contract, the agreement holder Ponnusamy as well as the first respondent/plaintiff never issued any notice through a lawyer expressing their willingness and readiness to perform the said contract. 123. In such circumstances, it is emphasized by the learned senior counsel that both the agreement holder Ponnusamy as well as the first respondent/plaintiff have not come for ward to perform the said contract. Moreover to prove the refusal of the defendants for getting plan sanction, they produced Exhibits A-5 and A-6. 124. A perusal of Exhibit A-5 would clearly reveal the fact that the document can be pit pared at any point of time. Moreover, the said document has not been enclosed at the time of filing the suit. Therefore, the evidence adduced by P.W.1 that the defendants refused & put the signature in Exhibit A-5 and Exhibit A-6 could not be taken into consideration as, bonafide one. Moreover, this fact has not beat supported by other witnesses. 125. Even though the agreement holder Ponnusamy and the first respondent/plaintiff would claim that they have enough sources & income and money with them to perform the contract. For establishing this fact, they have not come forward to deposit the balance amount immediately after the refusal made by the defendant to show their bona fide intention. However, the amount deposited by the plaintiff under Exhibit A-7 was only on 10. 1993 i.e. after passing four years of the filing of the suit and also passing eleven years from the date of agreement under Exhibit A-1. 20.26. In such circumstances, it cannot be decided that the agreement holder as well as the assignment holder was always willing and ready to perform the contract. .27. With regard to non-performance of the contract, the agreement holder Ponnusamy himself kept silence from the date of agreement and till the date of assignment. He did not take any step either to insist the defendants to perform the contract or obtain their signatures in Exhibits A-5 and A-6. 228. In this regard, it is emphasized by the learned senior counsel that when the agreement holder Ponnusamy himself unable to perform the contract, under these circumstances, he has chosen to assign the said agreement in favour of the first respondent/plaintiff. 228. In this regard, it is emphasized by the learned senior counsel that when the agreement holder Ponnusamy himself unable to perform the contract, under these circumstances, he has chosen to assign the said agreement in favour of the first respondent/plaintiff. Here one another point stressed by the counsel is that the burden to establish the readiness and willing not only lying on the assignee himself but also he has to be establish that the agreement holder was also ready and willing to perform the contract. 229. In support of his contention, the learned senior counsel relied on the decision of the Division Bench of this Court in Embar Naidu v. Rathnam Chettiar and Gopal Chettiar 2003 2 LW 447 : (2003) 2 MLJ 115 wherein, this Court held as follows at p.119 of MLJ: TAMIL "10. Learned single Judge proceeded on the basis that Gopal Chettiar was ready and willing to perform his part of the agreement, but the appellant delayed the execution of the sale deed, learned single Judge held that the evidence of Gopal Chettiar showed that he had money to pay the balance of sale consideration. We are unable to agree with the conclusion arrived at by the learned single Judge as the plaintiff himself has admitted that Gopal Chettiar did not show any document to establish that he had Rs.51,000/- and did not own any property, but had 150 sovereigns of jewels belonging to his wife. Though Gopal Chettiar has admitted that the source of money was the jewels belonging to his wife, he has not stated that his wife has 150 sovereigns of jewels and further there would be no occasion for Gopal Chettiar to show his wifes jewels to the plaintiff. Hence, the statement of the plaintiff that Gopal Chettiar was having 150 sovereigns of jewels belonging to his wife can only be regarded as imaginary in the absence of positive evidence. We find that there are inner contradictions in the evidence of the plaintiff and Gopal Chettiar when they tried to explain the financial capacity of Gopal Chettiar to raise the sum of Rs.51,000/-. 11. It is true that it is not necessary for the plaintiff to produce the actual cash before the Court, but the means of Gopal Chettiar to perform his part of the contract and his readiness and willingness must be established by the plaintiff. 11. It is true that it is not necessary for the plaintiff to produce the actual cash before the Court, but the means of Gopal Chettiar to perform his part of the contract and his readiness and willingness must be established by the plaintiff. In this state of evidence, we hold that the learned single Judge was not correct in holding that Gopal Chettiar had the enough resources to pay the balance of sale consideration. In fact, Gopal Chettiar had kept quiet and not taken any action for a period of nearly three years from the date of agreement which shows that he was not having resources to pay the balance of sale consideration. We, therefore, hold that there is absolutely no evidence to show that Gopal Chettiar was continuously and willing to perform his part of the contract as there is a specific denial by the appellant in the written statement that Gopal Chettiar was not in a position to perform his part of the contract." 30. Emphasizing the legal and factual position referred to in the reported decision, the learned senior counsel would point out that in this case also, the assignee also has not established that the agreement holder was having source of income to pay the balance sale consideration to the defendants. Moreover, as already discussed above, the said assignee has not come forward to establish that in spite of the request made by the agreement holder in person and through the Panchayat, the defendants have not come forward to perform the contract. 31. If the defendants refused to cooperate with the agreement holder as well as the assignment holder for obtaining the necessary permission from the concerned authority, both the agreement holder and the assignment holder should have issued a legal notice to the defendants stating their refusal. 32. As already discussed above, P.W.1 himself has admitted in his evidence that he has not issued any legal notice to the defendants following their refusal. Therefore, the plaintiff has not established the fact that the agreement holder. As well as the plaintiff are ready to perform the said contract. In this regard, the burden lies only on the plaintiff. 33. As already discussed above, P.W.1 himself has admitted in his evidence that he has not issued any legal notice to the defendants following their refusal. Therefore, the plaintiff has not established the fact that the agreement holder. As well as the plaintiff are ready to perform the said contract. In this regard, the burden lies only on the plaintiff. 33. When the plaintiff failed to establish about the refusal of the defendants 1 to 3 for obtaining the permission from the authority concerned and the delay caused due to their non-cooperation, in such circumstances, the plaintiff is not entitled to seek any relief against the defendants 1 to 3 on the basis of Exhibits A-1 and A-3. 34. With regard to the assignment in favour of the first respondent/plaintiff, though the plaintiff has categorically stated that he immediately informed about the assignment to the defendants in person as well as through the Panchayat, it has been strongly denied by the defendants 1 to 3 stating that the assignment holder never met them and informed about the assignment. The appellants/defendants have stated that incidentally they came to know about the assignment only after the filing of the suit. 35. With regard to the limitation points the learned senior counsel would emphasize that the suit filed by the plaintiff is not maintainable for the reason that the said suit was filed after the expiry of the limitation period. 36. In this regard, it is emphasized by the learned senior counsel that with regard to the performance of the contract, time limit was referred to in para 3 of the agreement under Exhibit A-1, however, on mutual agreement, a further period of one year was extended from 6. 1983 to 6. 1984. It is seen that the assignment deed was executed in favour of the plaintiff after passing two years of extension of Exhibit A-1 agreement. Even after the said assignment, the first respondent/plaintiff has not come forward to perform the contract by expressing willingness and readiness. 37. As already discussed above, the assignment holder, the first respondent/plaintiff has not come forward to deposit the balance amount to show his bona fide. 38. It could be seen that both the agreement holder and the assignment holder have not come forward to perform the contract inspite of sufficient period was available for them. 39. 37. As already discussed above, the assignment holder, the first respondent/plaintiff has not come forward to deposit the balance amount to show his bona fide. 38. It could be seen that both the agreement holder and the assignment holder have not come forward to perform the contract inspite of sufficient period was available for them. 39. As already discussed above, if the defendants actually have not come forward to perform the contract as stated by the first respondent/plaintiff, the first respondent/plaintiff should have filed the suit within three years from the date of completion of the extension of time as referred to in Exhibit A-1. .40. Therefore, whatever, the reasons stated by the first respondent/plaintiff against the appellants/defendants for the non-performance of the contract cannot be considered as a bona fide one. In such circumstances it is emphasized that the learned senior counsel that the suit filed by the plaintiff is not maintainable and therefore, the plaintiff is not enti-tled to seek any relief against the defendants. .41. In support of his contention, the learned senior counsel relied on the reported decision of the Honble Supreme Court in S. Vidyanadam and Others v. Vairavan (supra), wherein, it is held as follows: ."Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding including the express terms of the contract and the nature of the property," 42. Referring to the above said legal principles, the learned senior counsel would emphasize that when the findings of the both the Courts below are totally found to be erroneous this Court has to interfere with the decisions arrived at by the Courts below by setting aside the same. 43. Per contra, the learned senior counsel appearing for the first respondent would emphasize that the cause of action has arisen in this case only after the approval of the layout. It is emphasized that the registration of the sale deed could be possible only after obtaining the approval of the layout from the authorities concerned. In this regard, it is pointed out this reference is being mentioned in the proceeding para of the last para of the said document. It is emphasized that the registration of the sale deed could be possible only after obtaining the approval of the layout from the authorities concerned. In this regard, it is pointed out this reference is being mentioned in the proceeding para of the last para of the said document. It is pertinent to refer the said sentence for arriving a just decision in this matter wherein it is stated as "TAMIL". The above stated sentence does not express that the appellants/defendants were accepted for registration after obtaining the necessary sanction from the concerned authority. As already discussed above, para 3 of the document would clinchingly reveal the fact that past performance of the contract would be completed within one year. A perusal of that paragraph would reveal the fact that the contents of the paragraph in no way expressing or revealing the fact that the performance of the said contract would be fulfilled only after obtaining the approval of the layout from the authorities concerned. .44. It is emphasized that so far no approval has been given. Admittedly, till now no sanction plan has been obtained by the respondent/plaintiff. Therefore, the non-co-operation of the defendants would entitle the first respondent/plaintiff to file the suit. .Therefore, the suit filed by the respondent/plaintiff is in time. It is emphasized by the learned senior counsel that since the defendants have not come forward to cooperate with the first respondent/plaintiff for obtaining the necessary permission, the delay was caused and the said delay was not caused due to the act of the first respondent/plaintiff but due to the non-cooperation of the defendants. This finding has been categorically given by both the Courts below. In such circumstances, no interference is needed in this second appeal to reverse the findings of the Courts below. .45. To strengthen his argument, the learned senior counsel relied on the decision of this Court in S. Raju Pillai and another v. Paramasivam (1992) MLJ 467, wherein, it is held as follows: ."The questions which arise for consideration in this case are questions of fact. The lower appellate Court is the final Court of fact and even if there is any grievous error committed by the lower appellate late Court it is not open to the High Court in second appeal to interfere with the finding of fact arrived at by the lower appellate Court. 146. The lower appellate Court is the final Court of fact and even if there is any grievous error committed by the lower appellate late Court it is not open to the High Court in second appeal to interfere with the finding of fact arrived at by the lower appellate Court. 146. Emphasizing the above said legal principles, the learned senior counsel would contend that nothing is warranted to interfere with the decision arrived at by the Courts below. .47. In the light is of the above discussion, this Court is of the view that when assignment holder as well as the agreement holder has not come forward to establish their readiness and willingness to perform the contract the first respondent/plaintiff is not entitled to seek any relief against the defendants. However, when the respondent/plaintiff failed to establish the fact that due to the non-cooperation of the defendant, he was not able to perform the said contract, delay caused due to their unwillingness and unreadiness, in such circumstances, the reason shown by the plaintiff for causing the delay in filing the suit cannot be accepted. Therefore, the suit filed by the first respondent/plaintiff is barred by limitation. When compared the legal position with regard to limitation point stated by the learned senior counsel for the appellants with that of the contention raised by the learned senior counsel appearing for the first respondent/plaintiff, this Court finds that the limitation points referred by the learned senior counsel has got more force. In view of this, this Court is justified to interfere with the orders of both the Courts. Accordingly, this Court set aside the order of both the Courts. Accordingly, this Court set aside the order of Accordingly, this Court set aside the order of both Courts as a result of the suit filed by the plaintiff is dismissed. 148. On a careful consideration of the legal position and also considering the factual position of this case, this Court is of the view that there is no valid reason to confirm the concurrent findings of the Courts below. Further, the substantial questions of law are answered in favour of the appellants. 149. In result, the second appeal is allowed with costs dismissing the suit and setting aside the judgment and decree of the Courts below. Connected C.M.Ps. are closed.