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2017 DIGILAW 1827 (MAD)

Xavier Cardoza (Died) v. Kovilpillai Nadar

2017-06-30

C.V.KARTHIKEYAN

body2017
JUDGMENT : C.V. Karthikeyan, J. The first defendant in O.S.No.61 of 1986 on the file of the Subordinate Judge, Tuticorin is the appellant herein. He has filed this appeal challenging the judgment and decree dated, 12.08.1992 passed in the said suit. 2. O.S. No. 61 of 1986 had been filed by the 1st to 11th respondents herein for specific performance of appellants dated 09.04.1983 and 16.6.1983 against the deceased first appellant, who was the 1st defendant in the suit and the 12th to 15th respondents herein, who were the defendants 2 to 5 in the suit and for recovery of sum of Rs. 81,300/- together with interest from the deceased first appellant who was the first defendant. 3. The suit property consisted of A, B and C schedules. The A Schedule property was land and building in which the plaintiffs claimed an undivided 1 share. The suit property was situated in Tuticorin Town, bearing Municipal numbers 92 B, 93, 93 A, 93 C, 93/1, 93/2C, 93/3 and 93/4. It was called the Joseph Talkies. The 'B' Schedule was 1 share in the furniture and other movables in Joseph Talkies. The 'C' Schedule is right to manage the Theatre called Joseph Talkies. In the plaint, which has been filed by the 11 plaintiffs, they have claimed that said Joseph Talkies was owned by the first defendant, Xavier Cardoza, who was the deceased first appellant herein. However, the 2nd to 4th defendants were in management of the said theatre. There was earlier suit between the first defendant and the second defendant and in the same, fifth defendant B. Natarajan was appointed as receiver for management of the Theatre. 4. It had been stated that with respect to the management of the theatre, on 09.04.1983 the first defendant and first plaintiff namely Kovilpillai Nadar had entered into a agreement. According to the said agreement, the total consideration payable was Rs. 5,50,000/- and the first defendant received an advance of Rs. 50,000/-. All the plaintiffs belong to the same family. There was a further second agreement, dated 16.06.1983 between the plaintiff and the 1st defendant and also with the 2nd to 4th defendants. According to this second agreement, a further sum of Rs. 5,27,000/- was payable by the 1st defendant and the 1st to 4th defendants and the plaintiffs therefore entered into agreement determining the amount payable by the 1st defendant at Rs. 5,27,000/-. According to this second agreement, a further sum of Rs. 5,27,000/- was payable by the 1st defendant and the 1st to 4th defendants and the plaintiffs therefore entered into agreement determining the amount payable by the 1st defendant at Rs. 5,27,000/-. This was also agreed to by the 2nd, 3rd and 4th defendants. In respect of the said amount, the 2nd, 3rd and 4th defendants agreed to hand over administration of the theatre. As advance, the first plaintiff paid a sum of Rs. 2,00,000/- to the 2nd, 3rd and 4th defendants. There was also amount due to Syndicate Bank. This was paid by the Plaintiffs by a Demand Draft for Rs. 90,000/- together commission charges of Rs. 20/-. With respect to the second agreement dated 16.06.1983, according, to the plaintiffs, they had paid total sum of Rs. 5,40,000/- and they were due and payable only sum of Rs. 9,80,000/-. They filed the suit seeking specific performance of sale and right to manage the theatre on 31.03.1986 just one week before the period of limitation. 5. The 1st defendant filed a written statement. According to him, he was the owner of the theatre called Joseph Talkies. He claimed that the amounts payable was much higher. He denied that Rs. 90,000/- was paid to the Syndicate Bank by the plaintiffs and further denied that Rs. 2,00,000/- was paid by the plaintiffs to the 2nd to 4th defendants. It had been stated that after the second agreement dated 16.06.1983 the management of the theatre was taken jointly by the first plaintiff and first defendant. Since, the amounts were not paid, the 2nd to 4th defendants took back control of the theatre. The first defendant denied that he was due and liable to the plaintiffs and claimed that suit should be dismissed. The second defendant filed a written statement and denied payment of advance by the plaintiffs. The third and fourth defendants also filed a written statement but did not raise any substantial issues. 6. On the basis of the rival pleadings, the learned Trial Judge had framed the following issues:- 1. Whether the plaintiff is entitled to the decree for specific performance? 2. Whether the plaintiff is entitled to purchase the entire property shown in the schedule? 3. Whether the plaintiff had entered into an agreement to purchase the entire property shown in the schedule? 4. Whether the plaintiff is entitled to the decree for specific performance? 2. Whether the plaintiff is entitled to purchase the entire property shown in the schedule? 3. Whether the plaintiff had entered into an agreement to purchase the entire property shown in the schedule? 4. Whether the first defendant is liable to execute sale deed? 5. Whether the first defendant is liable to pay the amount claimed by the plaintiff? 6. To What relief is the plaintiff entitled? 7. During trial, the first plaintiff Kovilpillai examined himself as PW. 1 and also examined three independent witnesses, Ramasubramanian, Balakrishnan and Annamalai as PW.2, PW.3 and PW.4. On the side of the defendants, the first defendant Xavier Cardoza examined himself as DW.1 and two independent witnesses Rajasekar and Ravisankar were examined as DW.2 and DW.3. On the side of the plaintiff, Ex.A1 to Ex.A15 were marked. These included the copy of agreement dated 09.04.1983 as Ex.A1, the copy of the agreement between the plaintiff and defendants 2 to 4, dated 15.06.1983 as Ex.A2, the copy of the sale agreement, dated 15.06.1983 among the plaintiff as Ex.A3, the endorsement made in Ex.A1 by the first defendant on 17.06.1983 as Ex.A4, the statement of accounts relating to Joseph Talkies as Ex.A5, the certified copy of the judgment of Subordinate Court, Tuticorin in O.S.No.65 of 1987 as Ex.A6, the copy of partition deed between the first defendant and his brothers dated 05.08.1968 as Ex.A7, the copy of cheque issued by Balakrishnan, dated 15.09.1983 as Ex.A8, the extract from evidence of the first defendant in O.S.No.65 of 1987 as Ex.A9 to Ex.A14 and the statement of the first defendant income tax authorities as Ex.A15. On the side of the defendants Ex.B1 to Ex.B5 were marked. Ex.B1, dated 10.04.1992 is the report of Ravisankar, Engineer and Ex.B2 dated 12.07.1943 is the sale deed in favour of Packiam Cardoza and Ex.B3 dated 28.11.1943 is another similar sale deed and Ex.B4 and Ex.B5 are Income tax notices for the years 1981-82, 1982-83 and 1983-84. 8. On consideration of the oral and documentary evidence, the learned Trial Judge held that the plaintiffs have to pay to the first defendant a sum of Rs. 9,980/- on or before 12.09.1992 by depositing the same into Court and on such deposit the first defendant has to execute a sale deed with respect to the suit schedule properties. 8. On consideration of the oral and documentary evidence, the learned Trial Judge held that the plaintiffs have to pay to the first defendant a sum of Rs. 9,980/- on or before 12.09.1992 by depositing the same into Court and on such deposit the first defendant has to execute a sale deed with respect to the suit schedule properties. It had been stated that if the first defendant fails to execute the sale deed, the sale deed would be executed through court. It had been further stated that the plaintiffs is also entitled for costs. 9. Challenging the said judgment and decree, the first defendant had filed this appeal. During pendency of the appeal, the appellant died and his legal representatives had been brought on record. In the appeal, it had been stated that Ex.A1 namely the agreement dated 09.04.1983 had stipulated certain pre-conditions for performance. The total consideration in the agreement was Rs. 5,50,000/- and an advance of Rs. 50,000/- had been paid. The agreement was in respect of the 'A' schedule theatre and also for the movables in the theatre and also right to manage the theatre which are given in 'B' and 'C' schedules to the plaint. However, the pre-conditions stipulated are that the plaintiffs who are the respondents herein had to discharge the existing mortgage to Syndicate Bank to an extent of 50% of the amount due. This amounted to Rs. 1,00,000/-. They also had an obligation to discharge Rs. 4,00,000/- payable to the 2nd to 4th defendants who are the 12 to 14th respondents in the appeal. Moreover, the time fixed for such performance was six months namely on or before 07.10.1983. Mean while, the second agreement Ex.A2 dated 16.06.1983 had been entered into. The time period was not changed. The plaintiffs in the suit had a further obligation to discharge loans. This agreement was entered into between the plaintiffs and the 1st to 3rd defendants. By Ex.A4, which is an endorsement in Ex.A1, dated 17.06.1983, it had been claimed that a sum of Rs. 2,00,000/- had been paid. 10. The learned senior counsel for the appellant stated that the suit had been filed on 31.03.1986 just one week prior to the period of limitation. The learned Senior Counsel also raised an serious issue on the improbability of execution of Ex.A1 and Ex.A2. Both parties had to perform their parts of the agreement. 2,00,000/- had been paid. 10. The learned senior counsel for the appellant stated that the suit had been filed on 31.03.1986 just one week prior to the period of limitation. The learned Senior Counsel also raised an serious issue on the improbability of execution of Ex.A1 and Ex.A2. Both parties had to perform their parts of the agreement. The learned senior counsel seriously challenged the readiness and willingness of the respondents who were the plaintiffs to perform their part of agreement. It has been found that the balance of Rs. 9,980/- amount was due and payable, but the plaintiffs instituted the suit just before 3 years. Moreover, while framing the issues, the learned Trial Court did not frame any issue with respect to readiness and willingness. It had also been pointed out by the learned senior counsel that there is no pleadings with respect to readiness and willingness as necessitated under Form 47 Apendix A of the Civil Procedure Code. 11. I have carefully considered the arguments put forth by the learned senior counsel. Even though sufficient opportunity had been granted, there is no representation on behalf of the respondents. But, even otherwise, the arguments of the learned senior counsel for the appellants has to be considered on merits. The appellants also filed additional grounds of appeal, which had been taken on file, raising an additional ground that under Section 14(1) (d), this Court cannot enforce the agreements as the terms contained continuous duties to be performed by both parties. 12. Ex.A1 agreement relates to 'A', 'B' and 'C' schedule properties. "A" schedule property is a theatre called Joseph Talkies, "B" schedule is the moveables in the theatre and "C" schedule is the right to manage the theatre. The total consideration was Rs. 5,50,000/- and the advance paid was Rs. 50,000/-. The period for performance was on or before 07.10.1993. However, there were a condition precedents, namely, after execution of the sale, the first plaintiff has to enter into a partnership with the first defendant and a joint ownership of the theatre has to be completed. The 'C' form licence has to be renewed in the name of the first defendant with written consent of the plaintiffs. The debts, namely, mortgage in favour of the Syndicate Bank has to be paid and the debts to the 2nd to 4th defendants was also to be discharged. 13. The 'C' form licence has to be renewed in the name of the first defendant with written consent of the plaintiffs. The debts, namely, mortgage in favour of the Syndicate Bank has to be paid and the debts to the 2nd to 4th defendants was also to be discharged. 13. There was another agreement Ex.A2 dated 16.06.1983. According to this agreement, a sum of Rs. 2,00,000/- was paid to the 2nd to 4th defendants. Ex.A1 was modified with respect to Clause 2 and with respect to Clause 3, the first plaintiff had agreed to discharge the loan. There were also modification with respect to Clause 5 and Clause 6. All these facts indicated that the agreements contained clauses which necessitiated continuous duties to be performed that it was not possible for the Court to monitor execution of the agreements. There were conditions and pre-conditions. 14. Section 14(1) (d) of the Specific Relief Act is as follows: 14. Contracts not specifically enforceable:-(1)The following contracts cannot be specifically enforced, namely:- (d) a contract the performance of which involves the performance of a continuous duty which the Court cannot supervise. 15. A reading of both Ex.A1 and Ex.A2 indicates that both were impossible for performance. On this one ground itself, this Court has to negative the relief of specific performance as claimed in the suit. However, the further averments in the pleadings have to be examined. It is seen that there are no pleadings with respect to readiness and willingness and the trial Court has also not framed any issue regarding readiness and willingness. 16. In this connection, Section 16(c) of the Specific Relief Act has to be referred to and it is as follows:- 16. Personal bars to relief :- Specific performance of a contract cannot be enforced in favour of a person- (c) Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. 17. 17. In 2015 8 SCC 695 (Padmakumari and others v. Dasayyan and others), wherein the relief of specific performance was sought and there was no pleadings with respect to readiness and willingness in form 47 Apendix A of the Civil Procedure Code and as necessitiated Under Section 16(c) of the Specific Performance Act, the Honourable Supreme Court had held in paragraphs 21 and 22 as follows:- 21. The second important legal contention raised by Defendants 12 to 15 is that the pleadings of the plaintiff are not in conformity with Order 6, Rule 3 CPC, Clause 3 of Form 47 in Appendix A, extracted hereinabove. A careful reading of Para 6 of the plaint makes it very clear that the averment as provided under Clause 3 is not in stricto sensu complied with by the plaintiff. The same is evidenced from the averments made at Para 6 of the plaint which reads thus: "6. The plaintiff is ready and willing to perform his part of the contract by paying the balance of sale consideration of Rs. 63,000 and take the sale deed in accordance with the provisions of the agreement deed dated 19.04.1992." 22. Upon a careful reading of the above said paragraph we have to hold that the plaintiff has not complied with the legal requirement which is mandatory as provided under Section 16(c) of the Specific Relief Act. Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of Defendants 12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue (I) is erroneous in law and is liable to be set aside." 18. It is also held by the Madras High Court in the Judgment reported in (2014) 2 MLJ 18 Muthukrishna Gounder v. Gowri and Others in paragraph 19 and 20 as follows: 19. So far as the issue with regard to readiness and willingness is concerned, it could be seen that in the plaint, the plaintiff had specifically averred that he was always ready and willing to perform his part of the contract. So far as the issue with regard to readiness and willingness is concerned, it could be seen that in the plaint, the plaintiff had specifically averred that he was always ready and willing to perform his part of the contract. Though the defendants 1 to 3 did not state anything in their written statement regarding the readiness and willingness, the fourth defendant had disputed the readiness and willingness of the plaintiff in her written statement. The learned counsel appearing on behalf of the appellant submitted that since the defendants 1 to 3 did not dispute the averment with regard to the readiness and willingness in their written statement, the plaintiff need not prove his readiness and willingness. 20. It is settled position that under Section 16(c) of the Specific Relief Act, the plaintiff should aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him. Therefore, it is the mandatory requirement of the plaintiff to plead and prove his readiness and willingness to perform his part of the contract. The said proposition has been laid down by the Hon'ble Supreme Court in the judgment reported in J.P. Builders and Another v. A.Ramadas Rao and Another (2011) 1 SCC 429 : LNIND 2010 SC 1124 : (2011) 2 MLJ 222 wherein the Hon'ble Supreme Court held as follows: "25. Section 16(c) of the specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. 26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sab-harwal (1970) 3 SCC 140 that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. 27. 26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sab-harwal (1970) 3 SCC 140 that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. 27. It is settled law that even in the absence of specific plea b the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties. Therefore, from the above judgment, it is clear that the plaintiff should plead and prove his readiness and willingness to perform his part of the contract. 19. It is also seen that the suit had been filed just before the period of limitation. In this regard, in (2000) 3 M.L.J 106 (Indravanthi v. Kamala), it had been held by this Court in paragraph 36 as follows: ".........No person who is genuinely interested in purchasing a property and is ready with the funds will procrastinate the matter this long. There is no reason given as to why there should be a delay of two years and ten months from the date of the suit notice in filing the suit. A person, who seeks an equitable remedy ought to demonstrate conduct which is fair and above board......." 20. In this case also, as rightly pointed out, the performance of the agreements cannot be supervised by the Court since the agreements has continuous conditions and pre-conditions. Moreover, there are no pleadings with respect to readiness and willingness. Naturally, issue was not framed on that aspect. There is also no evidence. There is also naturally no findings by the Trial Court. Even otherwise, the suit has been filed just one week prior to the period of limitation and no explanation has been given for the delay in filing the suit. 21. Naturally, issue was not framed on that aspect. There is also no evidence. There is also naturally no findings by the Trial Court. Even otherwise, the suit has been filed just one week prior to the period of limitation and no explanation has been given for the delay in filing the suit. 21. For all the reasons stated above, I am not in agreement with the findings of the learned Trial Judge and consequently, this appeal is allowed with costs. C.M.P.(MD)No.5365 of 2017 is also allowed and additional grounds of appeal is taken on file. 22. In the result, this appeal suit is allowed with costs. The judgment and decree dated 12.08.1992 made in O.S.No.61 of 1986 on the file of the Sub-ordinate Court, Tuticorin, is set aside.