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2015 DIGILAW 1153 (MAD)

M. R. Karuppiah v. R. Rengasamy

2015-02-26

M.SATHYANARAYANAN

body2015
Judgment :- 1. The defendants, who are successful before the trial court, lost before the lower appellate Court are the appellants. 2. The respondent herein filed O.S.No.746 of 1981 on the file of the Court of District Munsif, Uthamapalayam against the appellants herein for specific performance of the agreement of sale dated 21.05.1977 (Ex.A.1). 3. It is the case of the respondent/plaintiff that the first defendant/first appellant herein is the owner of the suit property by virtue of a registered sale deed dated 07.10.1974, marked as Ex.B.10. The first appellant/first defendant entered into an agreement of sale/Ex.A.1, dated 21.05.1977, with the plaintiff for a sum of Rs.4,267/- and as per the contents of the sale deed, the respondent/plaintiff has to discharge the debts of the first defendant due to one Parvathi, Subramani, Muthammal, Rakkammal and Rengammal to the tune of Rs.1,800/- and he has to pay the balance sum of Rs.1,667/- in favour of the appellant/first defendant on or before 15th Ani Pingala year and get the sale deed executed in his favour. It is also the case of the plaintiff that if he fails to perform his part of obligation, a sum of Rs.800/- paid to the first defendant by way of advance would get forfeited and if the first respondent/first defendant failed to perform his part of obligation, he has to pay a sum of Rs.800/- by way of penalty along with the advance amount. 4. It is the further case of the plaintiff that though he was ready and willing to perform his part of contract in terms of Ex.A.1, the first defendant was adopting evading tactics and in this regard, legal notices were exchanged and in spite of it, the first respondent did not come forward to perform his part of obligation. The respondent/plaintiff would further contend that suppressing the existence of Ex.A.1, dated 21.05.1977, the first defendant has entered into an unregistered sale agreement dated 02.04.1979 (Ex.B.3) with the second appellant/second defendant and executed a registered sale deed in his favour (Ex.B.6) on 04.07.1979 and hence, contended that he is entitled to the relief of specific performance of agreement of sale. 5. 5. The appellants/defendants filed a written statement contending that the respondent/plaintiff entered into possession of the suit property even in the year 1977 as a tenant on a monthly rent of Rs.40/- and his possession and enjoyment of the property was purely in his capacity as tenant. It is further stated in the written statement that though the first respondent has approached the plaintiff on very many occasions and reminded him about his obligation under Ex.A.1, he failed to come forward to perform his part of obligation and thereby relinquished his right under Ex.A.1 and in response to the legal notice sent on behalf of the plaintiff, the said stand was also made known to him. It is further stated that the subsequent agreement of sale under Ex.B.3 as well as execution of sale deed under Ex.B.6 are very well known to the plaintiff and in spite of it, he has failed to perform his part of obligation. It is further contended in the written statement that time is also essence of the contract and therefore, the suit is liable to be dismissed with costs. 6. The trial Court on the basis of the pleadings framed the following issues: (i) Whether the oral mortgage pleaded by the plaintiff is true? (ii) Whether the plaintiff is the tenant under the first defendant? (iii) Whether the second defendant is the bonafide purchaser of sale consideration? (iv) whether the plaintiff is entitled to get the relief of specific performance? If not under what relief, the plaintiff is entitled to? 7. During the course of trial, in order to sustain their case, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and marked Exs.A.1 to A.9. The first defendant examined himself as D.W.1; second defendant Gurusamy was examined as D.W.2 and one Perumal Ambalam was examined as D.W.3 and Exs.B.1 to B.10 were marked. 8. The trial court on a careful consideration of pleadings, oral and documentary evidence held that the plaintiff is not entitled to any relief and dismissed the suit with costs, vide judgment and decree dated 20.02.1982. 9. Aggrieved by the same, the plaintiff filed an appeal in A.S.No.74 of 1983 on the file of the Court of the learned Subordinate Judge, Periyakulam. 10. 9. Aggrieved by the same, the plaintiff filed an appeal in A.S.No.74 of 1983 on the file of the Court of the learned Subordinate Judge, Periyakulam. 10. The lower appellate court, after formulating the points for consideration, found that though the defendants pleaded relinquishment and knowledge of Ex.B.3 and B.6, they have miserably failed to establish the same and further found that in a suit for specific performance, time is normally not the essence of the contract and in Ex.A.1-agreement, it is not specifically shown about the discharge of debts as a pre-condition for performing the obligation on the part of the plaintiff. The lower appellate Court further found that unless the first defendant revoked the agreement entered into between him and plaintiff under Ex.A.1, he is not entitled to sell the suit property under Ex.B.6 to the second defendant and therefore, citing the said reason reversed the judgment and decree passed by the trial Court and allowed the appeal, vide judgment and decree dated 30.09.1983. 11. Challenging the legality and correctness of the judgment and decree passed by the lower appellate Court, the defendants 1 & 2 have preferred the present second appeal. 12. This Court at the time of admitting the second appeal formulated the following substantial questions of law: “1. Whether the time is the essence of the contract under Ex.A.1? 2. Whether Ex.B.3 and B.6 are valid documents or not? 3. In the face of express clause as to time for executing a contract under Ex.A.1 whether Courts has jurisdiction to extend or apply the provisions of the Limitation Act, 4. Whether after express stipulated time under agreement Ex.A.1 whether a party to the contract has any right to enforce his rights?” 13. Mr. 3. In the face of express clause as to time for executing a contract under Ex.A.1 whether Courts has jurisdiction to extend or apply the provisions of the Limitation Act, 4. Whether after express stipulated time under agreement Ex.A.1 whether a party to the contract has any right to enforce his rights?” 13. Mr. J.Parekh Kumar, the learned counsel appearing for the appellants/defendants has drawn the attention of the Court to Ex.A.1/agreement of sale and would submit that the first defendant entered into an agreement of sale of the suit property for a sale consideration of Rs.4,267/- and out of which, the plaintiff has to discharge the debts payable by the first defendant to various persons, which worked out a sum of Rs.1,800/- and by deducting a sum of Rs.1,800/- and further deducting a sum of Rs.800/-, which was paid by way of advance, the plaintiff has to pay a sale consideration of Rs.1,667/- to the first defendant and the plaintiff has to perform his part of obligation on or before 15th Ani Pingala year (As per English Calender 29.06.1977) and admittedly, the plaintiff has failed to perform this. The legal notice sent on behalf of the plaintiff is untenable. According to him, the lower appellate Court has not properly appreciated Ex.A.1 coupled with the oral testimony of the witnesses and documentary evidence and the finding of the first appellate Court that dehors non-dischargement of the debts undertook by the plaintiff to various persons, still he is entitled to claim the relief of specific performance, on the face of it, is wholly untenable and further finding that the first defendant has to prove the relinquishment is also against the facts and law and hence, prays for interference. 14. Though the respondent/plaintiff has been served and his name appears in the cause-list, he neither appeared nor engaged the service of an advocate to argue this appeal and hence, this Court is constrained to dispose of this appeal on merits. 15. 14. Though the respondent/plaintiff has been served and his name appears in the cause-list, he neither appeared nor engaged the service of an advocate to argue this appeal and hence, this Court is constrained to dispose of this appeal on merits. 15. Substantial Question of Law No.1: (i) This Court has perused Ex.A.1, a registered sale agreement dated 21.05.1977 and the contents of the same would disclose that the sale consideration was fixed at Rs.4,267/- and the respondent/plaintiff has also paid an advance of Rs.800/- and he was also under obligation to pay a sum of Rs.250/- to Parvathi and Rs.250/- to Subramanian and Rs.300/- to Muthammal and Rs.300/- to Rakkammal and Rs.700/- to Rengammal through promisory note, aggregating a sum of Rs.1800/- and after deducting the same and advance amount, he has to pay a balance sale consideration of Rs.1,667/- to the first defendant on or before 15th Ani Pingala year. (ii) According to the respondent/plaintiff, though he was ready and willing to perform his part of obligation, the first appellant/first defendant did not come forward to comply with the terms of Ex.A.1-sale agreement and in this regard, he has sent a legal notice under Ex.B.1, dated 01.06.1979 and even in the legal notice, it has not been made very clear as to why the respondent/plaintiff did not discharge the debts of the debtors of the first appellant/first defendant. On behalf of the second defendant, a legal notice was sent to the plaintiff under Ex.A.4. Under Ex.B.4, a reply was sent by the appellants/defendants to the plaintiff, wherein, it has been clearly pointed out that non-performance of obligation of respondent/plaintiff especially with regard to the fact of non-dischargement of the facts has culminated in Ex.B.3, an unregistered sale agreement dated 02.04.1979. Even in the pleadings also, it has not been made clear that what prevented the respondent/plaintiff from discharging the debts. As admittedly, even in Ex.A.1/agreement, the debtors of the first defendant along with amounts payable to them have been clearly indicated. Ex.A.1 also contain a specific stipulation that apart from the plaintiff discharging the debts due to various persons, he has to pay a balance sum of Rs.1,667/- to the first defendant/first appellant on or before 15th Ani Pingala year and accordingly, he has failed to perform his part of obligation. Ex.A.1 also contain a specific stipulation that apart from the plaintiff discharging the debts due to various persons, he has to pay a balance sum of Rs.1,667/- to the first defendant/first appellant on or before 15th Ani Pingala year and accordingly, he has failed to perform his part of obligation. (iii) It is well-settled position of law that in a case of specific performance of immovable property, time is not the essence of contract and it depends upon the facts and circumstances of the case and agreement. The discussion made already would clearly indicate that the plaintiff was under obligation to discharge the debts of the debtors of the first defendant, but he has to pay a balance sale consideration of Rs.1,667/- to the first defendant on or before the date mentioned in Ex.A.1 and admittedly, he has failed to do so. Therefore, this Court is of the view that in the facts and circumstances of the case, time is essence of the contract under Ex.A.1. Therefore, substantial question of law No.1 is answered in affirmative in favour of the appellants. 16. Substantial Question of Law No.2: (i) No doubt, in Ex.B.3, an unregistered agreement of sale came into being between the first and second defendants, nothing has been stated about Ex.A.1-Agreement of sale, executed between the plaintiff and first defendant. Since the respondent/plaintiff has failed to perform his part of obligation, it is open to the first defendant being a lawful owner of the property to deal with the property in the manner, in which he likes and accordingly, he entered into Ex.B.3 with the second defendant to sell the property and subsequently, he executed Ex.B.6, dated 04.07.1979. (ii) The lower appellate Court mainly pointed out that during the course of trial, the first defendant took a stand that since the plaintiff was unable to perform his part of his obligation, he has relinquished his right under Ex.A.1 and he would also aware of Ex.B.3 and B.6 and the said stand has not been proved. (ii) The lower appellate Court mainly pointed out that during the course of trial, the first defendant took a stand that since the plaintiff was unable to perform his part of his obligation, he has relinquished his right under Ex.A.1 and he would also aware of Ex.B.3 and B.6 and the said stand has not been proved. In the considered opinion of this Court, dehors the said plea taken by the first defendant which was not substantiated, the fact remains that the second appellant/2nd defendant was not aware of Ex.A.1 and it is also evidenced by the fact and even in Ex.B.3, there is no recital regarding the subsistence of agreement under Ex.A.1 and therefore, it can be safely construed that the second appellant/second defendant is also a bonafide purchaser for value and consideration of the property. Hence, the substantial question of law No.2 is answered in affirmative in favour of the appellants/defendants. 17. Substantial Question of Law Nos.3 and 4: This Court, while answering the substantial question of law No.1 has given a finding that in terms of Ex.A.1, agreement of sale, a time has been fixed for the performance of contract and therefore, time is the essence of the contract and the respondent/plaintiff has failed to perform his part of obligation within the time stipulated. Once this Court held that the time is essence of the contract, this Court cannot extend the time and therefore, the party, who has to perform his part of his right has lost his right for enforcement and therefore, substantial questions of law 3 and 4 are also answered in affirmative in favour of the appellants. 18. In the result, this second appeal is allowed and the judgment and decree dated 30.09.1983, made in A.S.No.74 of 1983 on the file of the Court of the learned Subordinate Judge, Periyakulam are set aside and the suit in O.S.No.746 of 1981 stands dismissed. However, in the circumstances of the case, there shall be no order as to costs.