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2013 DIGILAW 150 (MAD)

P. Ananthakrishnan v. P. Shanbagavalli

2013-01-07

M.Duraiswamy

body2013
JUDGMENT 1. The above Appeal arises against the Judgment and Decree in O.S. No. 8294 of 1996 on the file of VII Additional City Civil Court, Chennai. 2. The Appellants 1 to 4 were the Defendants 2, 3, 6 & 7, Appellants 5 to 7 are the Legal Representatives of the deceased-Second Appellant and the Respondent was the Plaintiff in the Suit. 3. The Plaintiff filed the Suit in O.S. No. 8294 of 1996 for Specific Performance alternatively, to pay a sum of Rs. 2,18,000/- being the amount paid and liquidated damages with interest at 24% per annum. 4. The brief case of the Plaintiff in the Suit is as follows: (i) According to the Plaintiff, the First Defendant was having life interest in the suit property and the Defendants 2 to 4 are having vested remainder in the said property. The Defendants 1 to 4 along with one Swarnambal, who is the mother of the First Defendant and paternal grand mother of Defendants 2 to 4, jointly mortgaged the suit property with the Plaintiff for securing the loan of Rs. 50,000/- borrowed by them on 6.6.1986 under a registered Mortgaged Deed. The Defendants have not discharged the debt amount and a sum of Rs. 1,81,944/- was due as on the date of filing of the Suit. The said Swarnambal died on 10.6.1990. (ii) According to the Plaintiff, the Defendants 1 to 4 approached him in December 1990 and represented that they are in urgent need of funds to meet their family necessities and the income derived form the suit property was meagre. The Defendants 1 to 4 offered to sell the suit property to the Plaintiff for a sale consideration of Rs. 5,10,000/-. Even though the suit property is an old building requiring extensive repairs, yet the Plaintiff has advanced money on mortgage to the Defendants. The Plaintiff also agreed to purchase the suit property for a sum of Rs. 5,10,000/-. An Agreement of Sale was entered on 30.12.1990 between the Plaintiff and the Defendants 1 to 4. A sum of Rs. 1,00,000/- was paid as advance by the Plaintiff to the Defendants 1 to 4. The Plaintiff also agreed to purchase the suit property for a sum of Rs. 5,10,000/-. An Agreement of Sale was entered on 30.12.1990 between the Plaintiff and the Defendants 1 to 4. A sum of Rs. 1,00,000/- was paid as advance by the Plaintiff to the Defendants 1 to 4. As per the Agreement, the sale should be completed within six months and the Defendants 1 to 4 have to produce the Encumbrance Certificate and the Income Tax Clearance Certificate at their cost and the mortgage dues and all the tax dues to be deducted from the sale consideration. The option was also given to the Plaintiff to ask for the return of the advance amount of Rs. 1,00,000/- and also in addition to it, Rs. 1,00,000/- as liquidated damages. In the event of the Plaintiff committing default it was provided that advance amount of Rs. 1,00,000/- stand forfeited. (iii) According to the Plaintiff, the Defendants 1 to 4 wanted a sum of Rs. 10,000/- for marriage expenses of the Third Defendant and the Plaintiff paid the said sum of Rs. 10,000/- on 29.5.1991 and obtained endorsement on the back of the Sale Agreement. The Defendants 1 to 4 wanted a further sum of Rs. 8,000/- which was also paid by the Plaintiff on 27.6.1991. The Plaintiff and the Defendants 1 to 4 mutually agreed that the time for completing the sale was extended up to 15th July 1991. The same has been endorsed in the Sale Agreement on 27.6.1991. (iv) According to the Plaintiff, he was always ready and willing to perform her part of the contract. The Plaintiff prepared the draft Sale Deed by her Counsel and handed over the copy of the same to the Third Defendant on 1.7.1991 and obtained endorsement from him. The draft Sale Deed was handed over to the Defendants for obtaining Income Tax Clearance Certificate. Even though the Defendants were furnished with the copy of the draft Sale Deed, they failed to obtain Income Tax Clearance Certificate. The Defendants 1 to 4 wanted the Sale Deed to be prepared for a sum of Rs. 4,00,000/-. The Plaintiff also purchased the Stamp papers on 12.7.1991 engrossed the Sale Deed on the Stamp papers and kept the Sale Deed ready for registration. The Defendants 1 to 4 wanted the Sale Deed to be prepared for a sum of Rs. 4,00,000/-. The Plaintiff also purchased the Stamp papers on 12.7.1991 engrossed the Sale Deed on the Stamp papers and kept the Sale Deed ready for registration. The Plaintiff called upon the Defendants 1 to 4 on 12.7.1991 and asked them to get Income Tax Clearance Certificate ready and register the Sale Deed on 15.7.1991. The Plaintiff has been keeping the balance sale consideration in her Bank Account and she is keeping the same even now. (v) According to the Plaintiff, on 24.8.1991, the Defendants 1 to 4 sent a Notice alleging that the Plaintiff did not perform her part of the contract and unilaterally purported to cancel the Agreement of Sale dated 30.12.1990 and also stated that they are forfeiting the advance amount. On 30.8.1991, the Plaintiff sent a reply stating out the facts and called upon the Defendants 1 to 4 to produce the Income Tax Clearance Certificate within seven days. The Defendants again sent Notice on 7.9.1991 contending false allegations. On 18.9.1991, the Plaintiff sent a reply to the Counsel for the Defendants 1 to 4. (vi) According to the Plaintiff, the Defendants 1 to 4 cannot cancel the Agreement unilaterally and forfeit the advance amount of Rs. 1,00,000/-. In these circumstances, the Plaintiff filed the Suit. 5. The brief case of the Defendants 1 to 4 are as follows: (i) According to the Defendants 1 to 4, the Plaintiff was not ready and willing to perform her part of the contract within the extended stipulated time. The Defendants admitted the mortgage, however, denied that a sum of Rs. 1,31,944/- was due. The Defendants also admitted that they received a sum of Rs. 1,18,800/- as advance for the sale of the suit property. The sale was to be completed by 15.7.1991. The Plaintiff was not ready to complete the sale within the stipulated time. (ii) According to the Defendants 1 to 4, though in the Agreement the Defendants had agreed to produce the Income Tax Clearance Certificate, the Plaintiff herself, with a view to expedite the conclusion of the transaction, undertook to obtain the Income Tax Clearance Certificate through her Counsel Shri Sundaralingam and for that purpose Defendants paid a sum of Rs. 2,000/- towards his fees and other expenses. 2,000/- towards his fees and other expenses. The Plaintiff did not hand over the copy of the draft Sale Deed to the Defendants, since the Plaintiff's Counsel undertook to obtain the Income Tax Clearance Certificate. The Defendants had signed the necessary forms to obtain the Income Tax Clearance on 1.7.1991 when they paid a sum of Rs. 2,000/- to the Plaintiff's Counsel. Since the Plaintiff was not ready and willing to perform her part of the contract, the sale could not be completed. (iii) According to the Defendants 1 to 4, the breach is only on the part of the Plaintiff and not on the part of the Defendants. The Plaintiff was not ready with the balance sale consideration. Therefore, she requested for an extension of time, which the Defendants did not accede to. The Defendants denied that they had requested the Plaintiff to register the Sale Deed for Rs. 4,00,000/- as sale consideration. The Plaintiff has initiated action for recovery of the mortgage debt even though in the Sale Deed it has been stated that the entire amount due under the mortgage will be treated as sale consideration. In these circumstances, the Defendants 1 to 4 prayed for dismissal of the Suit. 6. The brief case of the 5th Defendant is as follows: According to the 5th defendant, he is an unnecessary party to the Suit. According to the 5th Defendant he is a Tenant in respect of a portion in the suit property. The Defendant borrowed a sum of Rs. 50,000/- from the Plaintiff on 6.6.1986. In the month of December 1990, the First Defendant along with others represented that the Plaintiff's brother-in-law, M. Mani, who is a binder by profession, had promised to arrange money for the purchase of the property. Since the 5th Defendant is only a Tenant, he is nothing to do with the relief sought for by the Plaintiff in the Suit. 7. The brief case of the 6th Defendant is as follows: The 6th Defendant reiterated the defence taken by the Defendants 1 to 4. In Paragraph No. 19 of the Written Statement, the 6th Defendant has stated that the interest of the minor 7th Defendant cannot be transferred by her, she being the mother of the 7th Defendant, without getting permission from the Court under Hindu Minority Act. In Paragraph No. 19 of the Written Statement, the 6th Defendant has stated that the interest of the minor 7th Defendant cannot be transferred by her, she being the mother of the 7th Defendant, without getting permission from the Court under Hindu Minority Act. The 6th Defendant had also stated that the interest of the minors also should be protected. 8. Before the Trial Court, on the side the Plaintiff, 2 witnesses were examined and 24 Documents Exs. A1 to A24 were marked and on the side of the Defendants, DW1 was examined and 15 Documents Exs. B1 to B15 were marked. 9. The Trial Court after taking into consideration, the oral and documentary evidences of both sides, decreed the Suit for Specific Performance. 10. Aggrieved over the judgment and decree of the Trial Court, the Defendants 2, 3, 6 & 7 have filed the above Appeal. 11. Heard Mr. R. Thiagarajan, learned Counsel appearing for the Appellants and Mr. M. Balasubramanian, learned Counsel appearing for the Respondent. 12. On a careful consideration of the materials available on record and on the submissions made by both the learned Counsels, the following points arise for consideration in this Appeal: (i) Whether the Plaintiff had waived her right to file the Suit for Specific Performance when she had invoked Section 69 of the Transfer of Property Act to bring the Defendants' mortgaged property for private sale? (ii) Whether the Suit for Specific Performance is liable to be rejected on the ground of laches when the Defendants cancelled the Suit agreement by Ex.A8-Notice dated 24.8.1991 itself and the Suit was filed only on 3.1.1992? (iii) Whether the Plaintiff had proved readiness and willingness to perform her part of the contract? (iv) Whether the Plaintiff is entitled for the alternative relief of refund of a sum of Rs. 2,18,000/- together with interest at 24% per annum?” 13. There is no dispute that the Defendants 1 to 4 are the owners of the suit property and that they entered into Ex.A2-Sale Agreement dated 30.12.1990. The total sale consideration was fixed at Rs. 5,10,000/-. On the date of Ex.A2-Sale Agreement, the Plaintiff paid a sum of Rs. 1,00,000/- as advance. It was recited in the Sale Agreement that the Defendants 1 to 4 have to produce the Encumbrance Certificate and Income Tax Clearance Certificate. Six months time was fixed for completing the sale. The total sale consideration was fixed at Rs. 5,10,000/-. On the date of Ex.A2-Sale Agreement, the Plaintiff paid a sum of Rs. 1,00,000/- as advance. It was recited in the Sale Agreement that the Defendants 1 to 4 have to produce the Encumbrance Certificate and Income Tax Clearance Certificate. Six months time was fixed for completing the sale. Since the Defendants required a further sum of Rs. 10,000/- the Plaintiff paid the said amount on 29.5.1991, which was endorsed in Ex.A2-Sale Agreement and the same was marked as Ex.A3. Thereafter, at the request of the Defendants 1 to 4, a further sum of Rs. 8,000/- was paid by the Plaintiff on 27.6.1991 which was also endorsed in Ex.A2-Sale Agreement and the same was marked as Ex.A4. Therefore, in all, the Plaintiff had paid a sum of Rs. 1,18,000/- towards the sale consideration. 14. It is also not in dispute that the Defendants 1 to 4 along with one Swarnambal, who is the mother of the First Defendant and paternal grand mother of Defendants 2 to 4, jointly mortgaged the suit property to the Plaintiff under registered Mortgage Deed dated 6.6.1986, which was marked as Ex.A1. The said Swarnambal had died on 10.6.1990. After the execution of the registered Mortgage Deed on 6.6.1986, the Defendants and Plaintiff entered into Ex.A2-Sale Agreement on 30.12.1990. In Ex.A2-Agreement of Sale, the parties had also mentioned about the existence of the mortgage with the Plaintiff. Further, it was agreed that the mortgage debt will be discharged from and out of the balance sale consideration. 15. Since the Defendants failed to repay the mortgage debt amount, the Plaintiff issued Notices dated 4.9.1991 and 7.10.1991 to the Defendants to bring the suit property for auction sale under Section 69 of the Transfer of Property Act. On receipt of the notices, the Defendants filed a Suit in O.S. No. 8419 of 1991 on the file of City Civil Court, Chennai for permanent injunction restraining the Plaintiff herein from bringing the suit property for sale by auction in pursuance of the Mortgage Deed dated 6.6.1986. A copy of the Plaint in O.S. No. 8419 of 1991 was marked as Ex.A16. Therefore, as on the date of issuance of the notices to bring the suit property for private sale, the Plaintiff had two options. A copy of the Plaint in O.S. No. 8419 of 1991 was marked as Ex.A16. Therefore, as on the date of issuance of the notices to bring the suit property for private sale, the Plaintiff had two options. One, he had the option to bring the property for sale as he did by issuing the above referred notices and the other option was to enforce Ex.A2-Sale Agreement dated 30.12.1990. The Plaintiff, instead of opting to file the Suit for Specific Performance, issued notices dated 4.9.1991 and 7.10.1991, which were marked as Exs.B2 & B3, respectively, to bring the property for auction. In spite of having the option of filing a Suit for Specific Performance, the Plaintiff only opted to bring the property for private sale under Section 69 of the Transfer of Property Act. 16. The learned Counsel appearing for the Appellants/Defendants submitted that the Respondent/Plaintiff was not ready and willing to perform her part of the contract. Though the Appellants/Defendants had made their mind clear by Ex.A8-Notice dated 24.8.1991 to the effect that they were not willing to execute the Sale Deed, the Plaintiff had filed the present Suit for Specific Performance only on 3.1.1992. When the Appellants/Defendants were in urgent need of money, they entered into a Sale Agreement to sell the suit property. But, the Respondent/Plaintiff had evaded payment of the balance amount and in fact she filed a Suit for Specific Performance only on 3.1.1992. In support of his contention, the learned Counsel for the Appellants relied upon the following judgments: (i) G. Chelliah Nadar (died) v. Periasami Nadar, 1993 (2) LW 84 , wherein the Hon'ble Supreme Court held that in a case where there was unexplained delay on the part of the Appellant in seeking the remedy, the refusal to decree a Suit for Specific Performance was found to be correct. (ii) Kalash Properties Pvt. Ltd. v. Lilly Pushpam, 2010 (1) MLJ 363 , wherein, this Court held as follows: “The question, whether the cause of action is identical or different, has to be decided, taking into consideration the averments and this substance made in both the Plaints. Even the character of the reliefs claimed by the Plaintiff may be different. (ii) Kalash Properties Pvt. Ltd. v. Lilly Pushpam, 2010 (1) MLJ 363 , wherein, this Court held as follows: “The question, whether the cause of action is identical or different, has to be decided, taking into consideration the averments and this substance made in both the Plaints. Even the character of the reliefs claimed by the Plaintiff may be different. In order to attract the applicability of the bar contemplated under Order 2, Rule 2, C.P.C., it is necessary that the cause of action on which the subsequent claim is founded as available to the claimant when he sought for the relief in the first Suit before any Court and hence, the test should be whether the cause of action on which the present claim is rested, were available to the Plaintiff at that time to claim the relief in the present Suit now sought for.” (iii) Raptakos Brett and Company Pvt. Ltd. v. Modi Business Centre (Pvt.) Ltd., 2006 (2) CTC 799 , wherein, this Court held that when the cause of action for Specific Performance was available to the Plaintiff on the date of the earlier Suit, mere non-mentioning of certain facts cannot be reason for escaping bar of Order 2, Rule 2, C.P.C. (iv) Pappammal @ T. Pappa v. P. Ramasamy, 2012 (4) CTC 100 , wherein this Court held that when the conduct of the Respondent proves that he did not intend to enforce Agreement of Sale as it was given as security and not intended to be acted upon as Agreement of Sale, the Plaintiff is not entitled for a decree for Specific Performance. (v) Bafa Developers v. D.K. Natarajan, 2010 (5) CTC 423 , wherein this Court held that the Plaintiff has to prove readiness and willingness to perform from the date of contract to the time of hearing to perform his part of contract. Such continuous readiness and willingness has to be proved and mere statement in the Plaint expressing readiness and willingness would not be sufficient. When a Suit originally filed only for mandatory injunction and the Plaintiff has not chosen to file a Suit for Specific Performance within three years, the Suit is barred by limitation. Such continuous readiness and willingness has to be proved and mere statement in the Plaint expressing readiness and willingness would not be sufficient. When a Suit originally filed only for mandatory injunction and the Plaintiff has not chosen to file a Suit for Specific Performance within three years, the Suit is barred by limitation. (vi) Suradamani Kandappan v. S. Rajalakshmi, 2011 (12) SCC 18 , wherein the Hon'ble Supreme Court held that— (i) the Courts while exercising discretion in Suits for Specific Performance should bear in mind when the parties prescribe a time/period for taking certain steps or for completion of the period. (ii) the Courts will apply greater scrutiny and strictness when considering whether the purchaser was ready and willing to perform his part of the contract. (iii) the Suit for Specific Performance need not be decreed merely because it is filed within the time of limitation by ignoring time limit stipulated in the agreement. (vii) Virgo Industries (Eng.) P. Ltd. v. Venturetch Solutions Pvt. Ltd., 2012 (5) CTC 359, wherein the Hon'ble Supreme Court held that when the Plaintiff and earlier filed a Suit for Permanent Injunction restraining the Defendant from alienating the suit property and the subsequent Suit filed for Specific Performance and the Plaintiff contented that time fixed for execution of agreement had not expired, while filing earlier Suit and thus, Specific Performance and the same was not claimed in the earlier Suit. In such circumstances, the Apex Court held that the Plaintiff need not wait for expiry of due date for performance of the agreement. (viii) Sornam v. A. Venugopal, 2010 (5) CTC 563 , wherein this Court held that the Court should find out whether there is cause of action for the Plaintiff for filing the present Suit at the time of filing previous Suit itself. (viii) Sornam v. A. Venugopal, 2010 (5) CTC 563 , wherein this Court held that the Court should find out whether there is cause of action for the Plaintiff for filing the present Suit at the time of filing previous Suit itself. When cause of action for filing a Suit for Specific Performance was very much available at the time of filing the Suit and non-mentioning cause of action should not be a reason to come out within the clutches of order Rule 2, C.P.C. (ix) Mathew v. Scaria, AIR 1998 Kerala 253, wherein the High Court of Kerala held that in a Suit for Specific Performance when the Plaintiff neither pleaded specifically or even stated in his evidence that he was ready and willing to perform his part of the contract and merely because the Defendant has not let in any evidence, the Plaintiff cannot be benefited. (x) Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel, 2001 (5) SCC 101 , wherein the Hon'ble Supreme Court held that when enforcement of Specific Performance would be inequitable if the true object of an agreement cannot be fulfilled as a result of changes in the Master Plan in that case has held that it could be inequitable to enforce Specific Performance of the Agreement. (xi) Lourdu Mari David v. Louis Chinnaya Arogiaswamy, AIR 1996 SC 2814 , wherein the Hon'ble Supreme Court held that in a case of Specific Performance the discretion should be exercised under sound principle of law and capable correction by Appellate Court. (xii) E.A. Thirugnanam v. V. Rajagopal, 2006 (1) CTC 809 , wherein this Court held that when the prices of the suit property rose considerable over period of time and purchaser filed Petition to amend the Plaint three years after filing of the Suit, the Court can take judicial notice of fact that cost of urban lands are increasing. Manifold increase in prices of suit property and delay in seeking relief of specific relief creates equity in favour of vendor and it would be inequitable to grant Specific Performance. Manifold increase in prices of suit property and delay in seeking relief of specific relief creates equity in favour of vendor and it would be inequitable to grant Specific Performance. (xiii) K.S. Vidyanandam v. Vairavan, 1997 (3) SCC 1 , wherein the Hon'ble Supreme Court held that even though time was not the essence of the contract of sale and immovable property and Suit can be filed within the period of three years provided under Article 54 of the Limitation Act, it should be performed within a reasonable time having regard to the terms of the contact prescribed a time limit and nature of the property. 17. Countering the submissions made by the learned Counsel appearing for the Appellants, learned Counsel appearing on behalf of the Respondent submitted that the Respondent/Plaintiff was always ready and willing to perform her part the contract that there is no considerable delay on the part of the Respondent/Plaintiff to file a Suit for Specific Performance, therefore, there is no laches on the part of the Respondent/Plaintiff in filing the Suit for Specific Performance. The Respondent/Plaintiff had not waived her right merely because she brought the mortgaged property for private auction under Section 69 of the Transfer of Property Act. In support of his contention, the learned Counsel for the Respondents relied upon the following judgments: (i) Balasaheb Daandeo Naik (dead) through L.Rs. v. Appasaheb Dattaraya Pawar, 2008 (1) CTC 530, wherein the Hon'ble Supreme Court held that in a case of sale of immovable property, there is no presumption that time being the essence of the contract. Even where the parties have expressly provided that time is the essence of the contract, such a stipulation will have to be read along with other provisions of the contract. In the case of Sale Deed has to be executed within a period of six months, and there is also express provision in the Agreement itself that failure to adhere the time, the earnest money will be forfeited and in such circumstances and in view of recital pertaining to forfeiture of the earnest money makes it clear that time as never intended by the parties to be of essence. (ii) Thakamma Mathew v. M. Azamathulla Khan, AIR 1993 SC 1120 , wherein the Hon'ble Supreme Court held that the power under Order 7, Rule 7, conferred on the Court does not enable it to override the statutory limitation contained in Section 16 of the Specific Relief Act and Article 54 of the Limitation Act, which preclude the grant of the relief of Specific Performance of a contract except within the time prescribed by the Section. 18. Though the Respondent/Plaintiff had two options, as already stated, he opted to exercise the first option by invoking Section 69 of the Transfer of Property Act by bringing the suit property for private sale. The Appellants/Defendants filed the Suit in O.S. No. 8419 of 1991 on the file of City Civil Court, Chennai for injunction restraining the Plaintiff from bringing the Suit property for auction. In the Written Statement filed by the Plaintiff herein in the said Suit, which was marked as Ex.B4, he has stated that no part of mortgage amount has been shown as part of consideration and that the amount paid under the Mortgage Deed and the amount paid in the Sale Agreement are separate and independent. The said averment stated in the Written Statement cannot be a correct statement for the reason that in Clause III of Ex.A2-Agreement, the Plaintiff had agreed to discharge the mortgage debt out of the sale consideration. Therefore, the averments stated in Ex.B4 was not proved by the Plaintiff herein. When the amount borrowed under Ex.A1-Mortgage Deed was referred to in Ex.A2 Sale Agreement, the Plaintiff had opted to bring the property for private sale. Therefore, he impliedly waived Ex.A2-Sale Agreement. If really the Plaintiff was interested in purchasing the property, he would have filed the Suit for Specific Performance instead of bringing the suit property for sale. By purchasing the property from the Defendants also, the Plaintiff would have realised the mortgage debt amount. Therefore, by invoking Section 69 of the Transfer of Property Act, it is clear that the Plaintiff had waived her right in enforcing Ex.A2-Sale Agreement. Having waived her right to file a Suit for Specific Performance, the Plaintiff had filed the present Suit for Specific Performance only on 3.1.1992. Therefore, the Suit filed by the Plaintiff for bringing the property for private sale under Section 69 of the Transfer of Property Act is liable to be rejected. 19. Having waived her right to file a Suit for Specific Performance, the Plaintiff had filed the present Suit for Specific Performance only on 3.1.1992. Therefore, the Suit filed by the Plaintiff for bringing the property for private sale under Section 69 of the Transfer of Property Act is liable to be rejected. 19. It is pertinent to note that though the Appellants/Defendants made their mind clear by sending Ex.A8-Notice dated 24.8.1991 that they are not willing to execute the Sale Deed, the Plaintiff instead of filing a Suit for Specific Performance, immediately brought the property for private sale under Section 69 of the Transfer of Property Act. The suit property was brought for private sale by issuing notices under Exs.B2 & B3. Therefore, it is clear that after Ex.A8-Notice from the Defendants, the Plaintiff opted to invoke Section 69 of the Transfer of Property Act instead of filing a Suit for Specific Performance. Thereafter on 3.1.1992, the Plaintiff had filed the present Suit for Specific Performance. The Plaintiff had not explained the reasons for the delay of more than four months in filing the Suit for Specific Performance. 20. There is no dispute with regard to the principles laid down in the above referred Judgments relied upon by the learned Counsel for the Appellants and the Respondent. The Hon'ble Apex Court as well as this Court in various judgments held that the Plaintiff must file a Suit for Specific Performances immediately being intimated by the Defendant about the refusal to register the Sale Deed. 21. In the case on hand, without any reason the Respondent/Plaintiff waited for more than four months to file the Suit for Specific Performance. Therefore, the Suit is liable to be rejected on the ground of laches on the part of the Respondent/Plaintiff in filing the Suit. 22. So far as readiness and willingness are concerned, the Respondent/Plaintiff though had stated that she was always ready and willing to perform her part of the contract, she has not let in any independent evidence to prove the said averments. PW2, who is a close relative of the Plaintiff, in his evidence has stated that he is in possession of the suit property as Tenant under the Defendants. Further, the Third Defendant had also filed R.C.O.P. No. 2929 of 1991 and the same was dismissed. PW2, who is a close relative of the Plaintiff, in his evidence has stated that he is in possession of the suit property as Tenant under the Defendants. Further, the Third Defendant had also filed R.C.O.P. No. 2929 of 1991 and the same was dismissed. Thereafter, the Defendants filed two RCOPs against PW2 for evicting him from the suit property. According to PW2, even those Petitions were also dismissed. Therefore, it is clear that PW2 was inimical towards the Defendants. That apart, he is also a close relative of the Plaintiff. Since PW2 was inimical towards the Defendants and also that he is a close relative of the Plaintiff, his evidence cannot be relied upon. Though the Defendants had entered into the Sale Agreement for selling their property to the Plaintiff for the Sale Agreement for selling their property to the Plaintiff for meeting some urgent monitory requirements, the Plaintiff in spite of knowing about the monitory position of the Defendants kept silent initially for six months, thereafter, till 15.7.1991, by paying only a sum of Rs. 1,18,000/- towards total sale consideration of Rs. 5,10,000/-. Even thereafter, the Defendants sent Ex.A8-Notice cancelling the Sale Agreement. Even after the receipt of the said notice, the Plaintiff did not come forward to pay the balance sale consideration and get the Sale Deed registered. Instead, she brought the suit property for private sale under Section 69 of the Transfer of Property Act. Thereafter, only on 3.1.1992, the Plaintiff had filed the present Suit for Specific Performance. Therefore, it is clear that she has not taken any steps to pay the balance sale consideration to the Defendants. That apart, the Plaintiffs Bank Pass Book was marked as Ex.A14. The Plaintiff had stated in here evidence that she was keeping the balance sale consideration amount in the Bank Account. On a perusal of the endorsements made in Ex.A.14, it is clear that at no point of time the balance sale consideration amount was available in her account. The Bank Deposit made under Ex.A15 was on 19.7.1996 i.e., after the filing of the Suit. Therefore, the Respondent/Plaintiff had failed to establish and prove the readiness and willingness by any acceptable evidence. Therefore, I am of the view that the Respondent/Plaintiff was not ready and willing to perform her part of the contract. 23. The Bank Deposit made under Ex.A15 was on 19.7.1996 i.e., after the filing of the Suit. Therefore, the Respondent/Plaintiff had failed to establish and prove the readiness and willingness by any acceptable evidence. Therefore, I am of the view that the Respondent/Plaintiff was not ready and willing to perform her part of the contract. 23. The Trial Court decreed the Suit for Specific Performance for the reason stated above. The Trial Court ought not have decreed the Suit for Specific Performance. 24. The next point that arise for consideration is regarding the return of the amount of Rs. 2,18,000/-. It is not in dispute that the Respondent/Plaintiff had paid a sum of Rs. 1,18,000/- towards advance. The Respondent/Plaintiff also claimed a sum of Rs. 1,00,000/- towards liquidated damages. It is also not in dispute that the Appellants/Defendants borrowed a sum of Rs. 50,000/- under Ex.A1-Mortgage Deed dated 6.6.1986. In Paragraph No. 4 of the Plaint, the Plaintiff had stated that a sum of Rs. 1,81,944/- was due and payable to her under the said mortgage. The property was brought to private sale by the Plaintiff. The learned Counsel appearing for the Respondent/Plaintiff submitted that she had not realised the mortgages debt amounts so far. The said contention was not disputed by the learned Counsel appearing for the Appellants/Defendants. However, with regard to the liquidated damages to Respondent/Plaintiff, she has not let in any evidence to prove the same. Therefore, the claim of Rs. 1,00,000/- towards liquidated damages cannot be granted. 25. The advance amount of Rs. 1,18,000/- was paid at the time of entering in to Ex.A2-Agreement. Therefore, I am of the view that the Respondent/Plaintiff is entitled to a decree for return of the amount of Rs. 1,18,000/- together with interest at the rate of 12% per annum from the date of filing of the Suit i.e., from 3.1.1992 till the date of realisation. However, it is open to the Respondent/Plaintiff to file a Suit for recovery of the amount due under Ex.A1-Mortgage Deed subject to the law of limitation and in accordance with law. 26. In these circumstances, the judgment and decree of the Trial Court are set aside. The relief of decree for Specific Performance stands dismissed. There shall be a decree for return of advance amount of Rs. 26. In these circumstances, the judgment and decree of the Trial Court are set aside. The relief of decree for Specific Performance stands dismissed. There shall be a decree for return of advance amount of Rs. 1,18,000/- together with interest at the rate of 12% per annum from the date of filing of the Suit i.e., from 3.1.1992 till the date of realisation. 27. It is brought to the Notice of this Court by the learned Counsel appearing for the Respondent/Plaintiff that the Respondent/Plaintiff had deposited the entire amount to the credit of O.S. No. 8294 of 1996 on the file of VII Additional City Civil Court, Chennai. Since the decree for Specific Performance has been set aside by the Judgment, the Respondent/Plaintiff is entitled to get return of the amount deposited by him before the Trial Court. 28. The learned Counsel appearing for the Respondent/Plaintiff also brought to the Notice of this Court that the Respondent/Plaintiff had filed an Application in C.M.P. No. 483/2011 to pass an order payment out of Rs. 1,02,958/- by issue of Account Payee Cheque in the name of Respondent being the amount paid by her towards arrears of Water and Property Tax on behalf of Appellants/Landlord. Pursuant to the order dated 9.3.2010, the said amount of Rs. 1,02,958/- was paid in four installments. The said amount represents the statutory dues payable by the Appellants. 29. Since the statutory dues are paid by the Respondent/Plaintiff, I am of the view that she is entitled to get return of the said amount. The said amount is lying to the credit of this court in A.S. No. 1246 of 2003 on the file of this Court. 30. The learned Counsel appearing for the Appellants also fairly submitted that he has no objection for permitting the Respondent/Plaintiff to withdraw the said amount. 31. Having regard to the submissions made by both the learned Counsel, and also being satisfied with the averments stated in the Affidavit filed in support of the Petition, the prayer in C.M.P. No. 483 of 2011 is ordered. The Respondent is permitted to get return of the amount of Rs. 1,02,958/- lying to the credit of A.S. No. 1246 of 2003 on the file of this Court. The Registry shall issue the cheque in favour of the Respondent/Plaintiff on production of a copy of this judgment. 32. The Appeal is partly allowed. The Respondent is permitted to get return of the amount of Rs. 1,02,958/- lying to the credit of A.S. No. 1246 of 2003 on the file of this Court. The Registry shall issue the cheque in favour of the Respondent/Plaintiff on production of a copy of this judgment. 32. The Appeal is partly allowed. However, there shall be no order as to costs. M.P. No. 482/2011 is closed and M.P. No. 483 of 2011 is ordered as prayed for.