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2011 DIGILAW 4409 (MAD)

Roja v. G. Santhanam

2011-11-03

G.M.AKBAR ALI, K.MOHAN RAM

body2011
Judgment :- (K. MOHAN RAM) 1. The defendants in O.S.No.66 of 2007 on the file of the Principal District Court, Tiruvallur, are the appellants in the above appeal. 2. The appeal is directed against the judgment and decree, dated 3.4.2009 passed in O.S.No.66 of 2007. 3. The case of the plaintiff/respondent herein as pleaded in the plaint is as follows:- a. In respect of the suit properties measuring an extent of 11.24 1/2 acres comprised in various survey numbers situated in No.39, Tharakshi Village, Uthukottai Firka and Taluk belonging to the appellants herein were agreed to be sold to the respondent herein under an agreement of sale, dated 14.9.2006 for a total sale consideration of Rs.83,21,300/- (Rs.7400/- per cent). b. The respondent on the date of agreement itself had paid a sum of Rs.50,00,000/-as advance. The time for performance of the agreement of sale was fixed as six months. But it was agreed that the time is not the essence of contract. Within the said six months period itself, though the respondent approached the appellants with the balance sale consideration and sought to execute the sale deed, the appellants postponed the same by assigning one reason or the other. The agreement contains a clause whereby the defendants have to arrange 35 ft. passage for the suit properties and because of this condition alone, the sale consideration was fixed at Rs.7400/-per cent, which was the highest amount at that time. c. Relying upon the said condition, the appellants tried to postpone and prolong the registration and the respondent made it very clear to the appellants that even without the said 35 ft. passage the respondent is ready and willing to register the sale deed after completing his part of the contract. But the appellants did not turn up. The respondent was and is always ready and willing to perform his part of the contract. Apart from the personal visit, the respondent had sent two letters to the appellants on 8.12.2006 and 21.12.2006 and the same were served on the appellants. The second appellant sent a reply for the letter, dated 21.12.2006 stating that since he was not able to provide 35 ft. passage, the agreement stands cancelled and requested the respondent to get back the amount paid as advance. The second appellant sent a reply for the letter, dated 21.12.2006 stating that since he was not able to provide 35 ft. passage, the agreement stands cancelled and requested the respondent to get back the amount paid as advance. d. When the respondent is ready to register the sale deed even without complying the said condition, it is the duty of the appellants to execute the sale deed. But all of a sudden, the appellants brought some third parties to the suit property on 8.3.2007 and when the same was enquired by the respondent, they told that they are going to purchase the suit property, but the respondent informed them about the agreement, which is in his favour and thereafter, they left the property. Since the appellants have refused to execute the sale deed, the respondent filed a suit seeking a decree for specific performance. 4. The appellants contested the suit by filing a detailed written statement inter alia contending as follows:- a. The execution of the agreement of sale, dated 14.9.2006 is admitted and the receipt of Rs.50,00,000/- as advance is also admitted. It was never agreed that the time was not the essence of contract. It is specific understanding that the time is the essence of contract. The condition regarding 35 ft. Battai was insisted by the respondent and the respondent has also agreed that in the event of failure to provide 35 ft. Battai, the agreement can be cancelled and the appellants are liable to repay the advance amount of Rs.50,00,000/-. The respondent has suppressed the material document, namely, a letter dated 26.12.2006, whereby the agreement was cancelled. The respondent was never ready and willing to perform his part of contract. b. Further, a complaint was given by the respondent before Uthukottai Police Station against the appellants where the respondent was advised to receive the advance amount, but the respondent did not turn up and has filed a false suit. The appellants have deposited the advance amount of Rs.50,00,000/-into Court. The appellants are in possession of the suit property. Since the agreement has been cancelled by the appellants, no relief can be claimed under the agreement of sale by the respondent and on the aforesaid pleadings, the appellants sought for the dismissal of the suit. 5. The appellants have deposited the advance amount of Rs.50,00,000/-into Court. The appellants are in possession of the suit property. Since the agreement has been cancelled by the appellants, no relief can be claimed under the agreement of sale by the respondent and on the aforesaid pleadings, the appellants sought for the dismissal of the suit. 5. On the aforesaid pleadings, the trial Court framed the following issues:- a. Whether the plaintiff is entitled for specific performance of contract of sale agreement dated 14.9.2006 as prayed for? b. Is it true that the plaintiff is failed to fulfill the condition made in the sale agreement? c. To what relief? 6. During the course of trial, on the side of the respondent, the respondent was examined as P.W.1 and Exs.A1 to A7 were marked. On the side of the appellants, the second appellant was examined as D.W.1 and three other witnesses have been examined and Exs.B1 to B4 have been marked. 7. On a consideration of the oral and documentary evidence adduced before the trial Court, the Trial Court decreed the suit as prayed for. 8. Being aggrieved by that the above appeal has been filed by the defendants in the suit. 9. Heard both. 10. The learned counsel for the appellants made the following submissions:- a. When admittedly Ex.A1 sale agreement contains a clause which stipulates that the appellants should provide 35 ft. passage (Battai) and only on that basis, higher sale price was fixed for the suit property and when the appellants are unable to purchase the adjacent lands to provide 35 ft. passage and it is specifically mentioned in Ex.A1 that if such passage is not provided the agreement is terminable and when the appellants by their letter, dated 26.12.2006 had informed the respondent that as the appellants are unable to purchase the adjacent lands, they are not able to provide 35 ft. passage and cancelled the agreement of sale and agreed to refund the advance amount of Rs.50,00,000/- and therefore, the respondent is not entitled to seek specific performance of the agreement of sale. b. According to the learned counsel, the aforesaid clause in Ex.A1 is an important clause and when it is established before the Court that the appellants are unable to comply with that clause and have cancelled the agreement of sale, the Court below ought not to have decreed the suit for specific performance. b. According to the learned counsel, the aforesaid clause in Ex.A1 is an important clause and when it is established before the Court that the appellants are unable to comply with that clause and have cancelled the agreement of sale, the Court below ought not to have decreed the suit for specific performance. It was the first respondent, who insisted for the condition to provide 35 ft. passage and as such it is not open to him to say that he is not insisting or willing to have 35 ft. Battai. c. The learned counsel submitted that the court below has failed to take into consideration of the fact that the appellants have deposited the advance amount of Rs.50,00,000/- into Court. The learned counsel submitted that the Court below has failed to take note of the fact that the sale agreement between the parties is voidable or terminable in view of Section 27(1) of the Specific Relief Act and the respondent has not taken any steps for rectification of the said clause which cannot be performed. d. Except the aforesaid contentions, no other contention has been made. 11. Countering the said submissions, the learned counsel for the respondent has made the following submissions:- a. The 35 ft. passage (Battai), which is mentioned in Ex.A1 sale agreement does not form part of the Schedule mentioned in the agreement of sale and it is also not included in the plaint Schedule. The respondent is seeking specific performance of the agreement of sale only in respect of the suit properties which does not include the 35 ft. passage (Battai). When a term in the agreement of sale is included for the benefit of the purchaser and when such term could not be complied with or performed by the vendor, it is for the purchaser either to avoid the contract or give up the said right which is included in the agreement in his favour. b. In this case, the respondent is not insisting the vendor to provide 35 ft. passage, which is agreed to be provided by the vendors. When the respondent has given up his claim in respect of 35 ft. passage, it is for the appellants, who will in no way be prejudiced to execute the sale deed in respect of the suit properties without providing 35 ft. passage and no right of the appellants will be prejudiced. When the respondent has given up his claim in respect of 35 ft. passage, it is for the appellants, who will in no way be prejudiced to execute the sale deed in respect of the suit properties without providing 35 ft. passage and no right of the appellants will be prejudiced. c. The learned counsel further submitted that the agreement of sale Ex.A1 can be specifically enforced without including the 35 ft. passage agreed to be provided by the appellants in the agreement of sale. d. In support of his contention, the learned counsel based reliance on Section 12 of the Specific Relief Act. The learned counsel submitted that the respondent after the filing of the suit and after getting the permission from the Court has deposited the entire balance sale consideration. The respondent was always ready and willing to perform his part of contract and in fact, he had approached the appellants and also addressed two letters, dated 8.12.2006 and 21.12.2006 calling upon the appellants to execute the sale deed after receiving the entire sale consideration but it was the appellants who refused to execute the sale deed and therefore, it is clear that the respondent is always ready and willing to perform his part of the contract. The readiness and willingness on the part of the respondent has been further established by the fact that he had deposited the entire balance sale consideration into Court. It was the appellants for the reasons best known to them have not performed their part of contract though the respondent was willing to give up 35 ft. passage which was agreed to be provided by the appellants. e. The learned counsel submitted that the Court below has considered the entire evidence on record and by applying correct legal principles applicable to the facts of the case, has decreed the suit for specific performance. The learned counsel submitted that there is absolutely no reason to interfere with the judgment and decree of the Court below. 12. We have considered the aforesaid submissions and perused the materials available on record. 13. The one and only contention that has been strenuously putforth by the learned counsel for the appellants is that in view of the particular clause contained in Ex.A1 sale agreement which stipulates that the appellants shall provide 35 ft. 12. We have considered the aforesaid submissions and perused the materials available on record. 13. The one and only contention that has been strenuously putforth by the learned counsel for the appellants is that in view of the particular clause contained in Ex.A1 sale agreement which stipulates that the appellants shall provide 35 ft. passage (Battai) and in the event of failure to provide such passage, the agreement of sale shall stand cancelled and the respondent is only entitled to get the advance amount back and when admittedly, the appellants are unable to provide 35 ft. passage as per the agreement of sale and that when it cannot be performed, the agreement of sale itself has become void. 14. It is no doubt true that such a clause is found in Ex.A1. In Ex.A1, it is stated as follows:- "TAMIL” 15. Though the aforesaid clause has been incorporated in Ex.A1 sale agreement and according to the appellants they were unable to provide 35 ft. passage as agreed, the respondent at no point of time had insisted for the provision of such passage by the appellants. In fact, by letters dated 8.12.2006 and 21.12.2006, which is admitted by D.W.1., the respondent had made it clear that he is not insisting for the provision of 35 ft. passage and without that he is willing to get the sale deed executed in respect of the properties described in the schedule of the agreement of sale. But the appellants for the reasons best known to them are insisting that since the aforesaid clause under Ex.A1 could not be complied with by them, it should be considered that the agreement of sale stands cancelled and the same has been cancelled by their letter, dated 26.12.2006, which has been marked as Ex.B1. By not receiving the advance amount of Rs.50,00,000/- tendered by the appellants, the respondent has filed the suit and the respondent is not entitled to seek a decree for specific performance. 16. We are of the considered view that the aforesaid clause is not so vital or important term to the agreement of sale, which cannot either be separated or without that terms the agreement cannot be enforced. 16. We are of the considered view that the aforesaid clause is not so vital or important term to the agreement of sale, which cannot either be separated or without that terms the agreement cannot be enforced. In this context, it is relevant to refer to the provisions contained in Section 12(4) of the Act, which reads as follows:- "12.(4): Specific performance of part of contract:- When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part." 17. If in the light of the aforesaid provisions contained in Section 12(4) of the Act, the agreement of sale Ex.A1 is considered, it has to be pointed out that the aforesaid clause relating to 35 ft. passage is separate and independent from other clauses of the agreement, whereby the appellants/vendors have agreed to sell the total extent of 11.24 ½ acres comprised in various survey numbers as described in the Schedule to the agreement of sale and plaint Schedule as well. It is pertinent to point out that the Clause to the effect that the appellants shall provide 35 ft. passage does not form part of the Schedule either in Ex.A1 agreement of sale or in the plaint Schedule. The respondent is seeking to enforce the agreement of sale only in respect of the properties described in the Schedule annexed to the agreement as well as the plaint. Except the plaint schedule properties, which tallies with the Schedule in Ex.A1, the respondent is not seeking for any relief in respect of any other property. Therefore, when the aforesaid clause stands on an independent and separate footing from another part of Ex.A1, the suit can be decreed in respect of the other part sought to be decreed. Therefore, the learned counsel for the respondent is right in contending that the agreement of sale can be specifically enforced in view of Section 12(4) of the Act. 18. Therefore, the learned counsel for the respondent is right in contending that the agreement of sale can be specifically enforced in view of Section 12(4) of the Act. 18. A perusal of the judgment of the Court below also shows that the Court below has considered the terms of the agreement Ex.A1, the evidence of P.W.1 and D.Ws.1 to 5 and has thoroughly considered the aforesaid clause found in Ex.A1 and also found that the disputed Clause cannot be considered to be a material term and it is also found that the clause can be separated from the rest of the contract. The Court below has referred to Section 12(4) of the Act. The provisions contained in Section 12(4) of the Act is applicable to the facts of the case and has further considered the readiness and willingness on the part of the respondent and has come to the conclusion that the respondent was always ready and willing to perform his part of contract and in fact, the respondent had deposited the entire balance sale consideration into Court after obtaining necessary permission from the Court. 19. It has to be pointed out that by enforcing the agreement of sale against the appellants herein, the appellants will not in any way be prejudiced or any loss will be occasioned to them. When the plaintiff has proved the agreement of sale Ex.A1 and has proved his readiness and willingness to execute the sale deed, he is entitled to get the suit decreed as prayed for. We do not find any reason to decline to exercise our discretion under Section 20 of the Act. 20. It is seen from the evidence of D.W.1 that a panchayat was held and the panchayatadars told the first defendant to pay a sum of Rs.12,00,000/- over and above the advance amount, he agreed for the same and though he waited for the respondent at Sengunram with the said amount, the respondent did not turn up. 21. From the above said evidence, it is clear that the appellants are not inclined to sell the property as agreed in the agreement of sale to the respondent and they are not ready to perform their part of contract. In fact, he has made it very clear, in his cross examination, that though the respondent is willing to get the sale deed executed without 35 ft. In fact, he has made it very clear, in his cross examination, that though the respondent is willing to get the sale deed executed without 35 ft. passage, the appellants are not willing to execute the sale deed in favour of the respondent. Therefore, the intention of the appellants is very clear that they are not ready to perform their part of contract as per the agreement of sale under one pretext or the other. 22. It has to be further pointed out that the appellants have not either pleaded or proved that if they execute the sale deed without providing 35 ft. passage, they will be put great hardships and loss or any of their right will be affected. Further, it is not the case of the appellants that the respondent wants to get the sale deed executed at a lower price than the agreed one in view of their inability to provide 35 ft. passage. 23. Further, when the relief sought for by the respondent is not inseparable with the other Clause found in Ex.A1 sale agreement, and the Clauses found in Ex.A1 are separable and stand on an independent and separate footing and as such the same can be performed, the respondent cannot be denied the relief sought for by him when the respondent himself has given up the right to the 35 feet passage which cannot be performed. The stand taken by the appellants can be accepted only when the Clauses found in the agreement of sale cannot be separated and not independent and are so inextricable without one clause or another, sale deed cannot be executed or performed and the same is agreed or admitted by the purchaser. Therefore, we do not find any reason whatsoever to interfere with the well considered judgment of the trial Court. For the foregoing reasons, the appeal fails and the same is dismissed with costs throughout.