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2017 DIGILAW 2576 (MAD)

E. Shanmugam v. B. Thanikachalam

2017-08-10

R.SUBRAMANIAN

body2017
JUDGMENT : 1. The defendant who suffered a decree for specific performance of the contract dated 24.09.2007 is the appellant. 2. According to the plaintiff/respondent, the appellant/defendant had entered into an agreement for sale of an extent of 1 acre 91 cents land situated in five different survey numbers for a total consideration of Rs. 11,46,000/- on 24.09.2007 and had received a sum of Rs. 50,000/- as advance. As per the agreement, the balance is to be paid within a period of three months from the date of the agreement and the sale deed is to be executed by the defendant. 3. According to the plaintiff, he came to know that there was a dispute to the extent of 20 cents of land in Survey No. 278/6 which according to him was sub-divided as 278/6A measuring about 74 cents and 278/6B measuring about 20 cents. The patta for 20 cents in 278/6B stood in the name of different person and the encumbrance certificate also disclosed a certain encumbrance over an extent of 20 cents. 4. Therefore, the plaintiff required the defendant to clear the said issue regarding the title with respect of 20 cents in Survey No. 278/6. Despite passage of time, since, the defendant did not come forward to solve the issue relating to encumbrance. The plaintiff issued legal notice dated 28.02.2008 calling upon the plaintiff to execute the sale. Even after the receipt of the legal notice, there was neither a reply nor did the defendant chose to comply with the demand made in legal notice dated 28.02.2008. Left without any other option, the plaintiff had come forward with above suit seeking specific performance of the agreement dated 24.09.2007. 5. The defendant resisted the suit contending that the plaintiff was not ready and willing to perform his part of the contract. According to the defendant, time fixed on the agreement namely three months is the essence of the contract, therefore, the plaintiff having not sought for specific performance within the time stipulated is not entitle to specific performance. 6. On the above pleadings the learned trial Judge - Additional District Judge, Fast Track Court II, Tiruvallur framed the following issues: 1. Whether the plaintiff was ready and willing to perform his part of the contract? 2. Whether the plaintiff is entitled for specific performance of the contract? 3. 6. On the above pleadings the learned trial Judge - Additional District Judge, Fast Track Court II, Tiruvallur framed the following issues: 1. Whether the plaintiff was ready and willing to perform his part of the contract? 2. Whether the plaintiff is entitled for specific performance of the contract? 3. Whether the plaintiff is entitled for the permanent injunction as prayed for by him? 4. To what relief is the plaintiff entitled? 7. The plaintiff examined himself and two other witnesses and marked Exs.A1 and A2. The defendant examined himself and two other witnesses and marked Ex.B1. 8. On the basis of the oral and documentary evidence, the learned Trial Judge concluded that the time is not an essence of the contract, since, the contract related to sale of immovable properties. It was also found that the plaintiff was ready and willing to perform his part of the contract. The defendant was faulted for not issuing a reply to the notice dated 28.02.2008. Therefore, on the above facts the trial Court concluded that the plaintiff would be entitled to a decree of specific performance. The suit was thus decreed. Aggrieved the defendant is on appeal. 9. Heard Mr. R.M. Krishnamurthi, learned counsel appearing for appellant and Mr. R. Munusamy, learned counsel appearing for the respondent. 10. The trial Court had observed that the notice issued and the reply have not been produced by either of the parties. The said observation cannot be correct. It is seen from the plaint that the notice dated 28.02.2008 produced as 6th document along with the plaint. In the proof affidavit filed by PW-1 the notice is referred to as Ex.A3. The reply notice along with the cover is referred to as Ex.A5. However, the said two documents were not marked by the trial Court. The learned counsel for the respondent has taken out an application in CMP No. 12091/2017 under Order 41 Rule 27 seeking to produce the notice and reply along with the bank statement as additional documents. 11. Mr. R.M. Krishnamurthi, learned counsel for the appellant would contend that the plaintiff is not entitled to specific performance on the sole ground that the plaintiff has not been ready and willing to perform his part of the contract. 11. Mr. R.M. Krishnamurthi, learned counsel for the appellant would contend that the plaintiff is not entitled to specific performance on the sole ground that the plaintiff has not been ready and willing to perform his part of the contract. Though the plea in the written statement was to the effect that time is essence of the contract, in view of the settled legal position time is not an essence of contract in respect of contracts for sale of immovable properties, the learned counsel contended that the plaintiff has not established that he was continuously ready and willing to perform his part of the contract. The absence of such readiness and willingness would disentitle the plaintiff from seeking the discretionary relief of specific performance according to the learned counsel. He would refer to the evidence of PW-1 as well as PW-2 and PW-3 and point out that the plaintiff had not made a demand over a period of ten months after the issuance of legal notice on 28.02.2008. The suit was in fact filed on 15.12.2008, nearly ten months after the issuance of the legal notice. 12. Per contra Mr. R. Munusamy, learned counsel for the respondent would vehemently contend that by the conduct of the defendant himself an extension could be presumed. Pointing out the averments, contained in the reply produced as Additional document in this appeal, the learned counsel would submit that the defendant himself has admitted that there was some kind of mediation between the parties, in view of the dispute relating to the title of the defendant to an extent of 20 cents in Survey No. 278/6 left to the period of contract being delayed. The learned counsel would also invite my attention to the evidence of DW-1 particularly in cross examination wherein he had admitted that he waited for more than a year expecting the plaintiff to perform his obligation under the agreement. 13. On the above rival contention the following points arise for determination in this appeal: 1. Whether the plaintiff has been ready and willing to perform his part of the contract in terms of section 16(c) of the Specific Relief Act? 2. Whether there was implied extension of time fixed under the contract as contended by the learned counsel for the respondent? Point Nos. 1 and 2: 14. Since both the points are interlinked, they are answered together. 2. Whether there was implied extension of time fixed under the contract as contended by the learned counsel for the respondent? Point Nos. 1 and 2: 14. Since both the points are interlinked, they are answered together. The execution of the agreement Ex.A1 is not in dispute. It is also not in dispute that a period of three months was fixed for performance of the contract. According to the plaintiff, it is because of the dispute relating to the title of the defendant with reference to 20 cents in Survey No. 278/6, the performance of the agreement got postponed. But, unfortunately for the plaintiff his own evidence is against the said contention. Even in his chief examination affidavit filed before the trial Court the plaintiff had stated that he approached the defendant within the period fixed in agreement and required him to execute the sale deed in respect of 1 acre 71 cents after deducting 20 cents which was in dispute but defendant refused to comply with the said request and claimed that he would execute the sale deed only in respect of 1 acre 91 cents and he would not split up the agreement. Even in his chief examination he has said that he is ready to pay the sale consideration for the extent of 1 acre 71 cents only. 15. Therefore, the plaintiff has not exhibited his readiness and willingness to perform the entire contract. It should be pointed out that the plaintiff had infact sued for performance of the entire contract and sought for sale deed for entire 1 acre 91 cents in the plaint. Therefore, it is clear that he has not relinquished his claim under the agreement in respect of 20 cents which is said to be in dispute. 16. Hence, the plaintiff cannot seek for part performance of the contract also under sub section 2 of section 12 of Specific Relief Act. PW-2 who is attesting witness to the agreement also deposed that within a month or two from the date of the agreement the plaintiff had required the defendant to execute the sale deed in respect of 1 acre 71 cents but the defendant had refused. PW3 also in his proof affidavit stated that the defendant refused the request of the plaintiff for execution of sale deed for lesser extent nearly 1 acre 71 cents. 17. PW3 also in his proof affidavit stated that the defendant refused the request of the plaintiff for execution of sale deed for lesser extent nearly 1 acre 71 cents. 17. In the back drop of the above said evidence that is on record, the plaintiff cannot contend that he was ready and willing to perform his part of the contract. Yet another factor which impels me to hold that the plaintiff was not ready and willing to perform his part of the contract is that the notice was issued by him on 28.02.2008, but the suit came to be filed only on 15.12.2008 that is nearly after ten months from the date of the notice. 18. The learned counsel for the appellant would rely upon the decisions of the Hon'ble Supreme Court in Saradamani Kandappan vs. S. Rajalakshmi and Others, 2011 (4) CTC 140 and Padmakumar and Others vs. Dasayyan and Others, 2015 (6) CTC 545, wherein the Hon'ble Supreme Court while accepting the broad proposition of law that the time is not an essence of the contract in relation to contracts relating to immovable property has held that the plaintiff will have to show continuous readiness and willingness. If the plaintiff is shown to be not ready and willing even for a particular period, that by itself would be ground to non-suit the plaintiff, particularly in the suit for specific performance relating to land where prices are always in the raise. 19. Mr. R. Munusamy, learned counsel appearing for the respondent would contend that the defendant had always been attempting to wriggle out of the contract by citing one reason or the other. When it is shown that the plaintiff was ready and willing to perform his part of the contract in such a manner the Court should not refuse specific performance of the contract on the ground of delay. The facts are otherwise here. In fact, the defendant had very categorically said that he has been approaching the plaintiff for executing sale deed for entire 1 acre 91 cents. The facts are otherwise here. In fact, the defendant had very categorically said that he has been approaching the plaintiff for executing sale deed for entire 1 acre 91 cents. The plaintiff s consistent case in the evidence of PW-1 to 3 is that he was not ready to take the sale deed for 1 acre 91 cents, because of the dispute with reference to the 20 cents which is pending by way of the suit which was filed after the issuance of notice by the plaintiff seeking specific performance. According to Mr. R. Munusamy the delay was not due to the conduct of the plaintiff. 20. I don't think, the said position would come to the aid of the plaintiff, he would further invite my attention to the judgment of the Hon'ble Supreme Court in P.D. Souza vs. Shondrilo Naidu, 2004 (6) SCC 649 relying upon the observation of the Hon'ble Supreme Court in para 21 of the said judgment. “It is not a case where the plaintiff had not made the requisite averments in the plaint. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The plaintiff was a tenant of the defendant.” The learned counsel would submit that defendant had not done anything pursuant to the contract. In fact the perusal of the agreement would show that there was no obligation on the part of the defendant to do any particular act in furtherance of the contract. The plaintiff admitted that the sale deed relating to the property was handed over to him and encumbrance according to him was discovered subsequently. Therefore, I do not think the position of law enumerated by the Supreme Court in the said decision would apply to the facts of this case. 21. The evidence of PW-1 in his proof affidavit is as follows: xxx xxx xxx xxx xxx 22. From the above evidence which is found part of the proof affidavit of the plaintiff, it is clear that the plaintiff was not ready and willing to perform his part of the contract for sale of the entire 1 acre 91 cents. 21. The evidence of PW-1 in his proof affidavit is as follows: xxx xxx xxx xxx xxx 22. From the above evidence which is found part of the proof affidavit of the plaintiff, it is clear that the plaintiff was not ready and willing to perform his part of the contract for sale of the entire 1 acre 91 cents. At this juncture, it should be pointed out that in the notice issued on 28.02.2008 as well as in the suit the plaintiff has sought for a decree for entire extent of 1 acre 91 cents and not for the 1 acre 71 cents as claimed by him in his evidence. 23. In my considered opinion, this evidence would show that the plaintiff has not been ready and willing to perform his part of the contract as contemplated in section 16(c) of the Specific Relief Act. 24. The learned counsel for the respondent would contend that there was implied extension of contract that is not his case in the plaint either in pre suit notice or in his notice. The learned counsel would rely upon certain answers in cross examination and certain averments made in the notice dated 02.01.2009 to assume that there has been an extension of the time fixed under the agreement. 25. I am unable to agree with the submission of the learned counsel, in the evidence, DW-1 has stated that though he waited for more than a year the plaintiff have not come forward to get sale deed executed, that would not imply an extension. In the reply notice also same averments have been made. In my opinion, the said evidence of the defendant or the averment in the reply notice would not amount to an implied extension of time fixed under the agreement as contended by the learned counsel. Hence both the questions are answered in favour of the appellant and against the respondent. Appeal is bound to succeed. CMP No. 12091 of 2017: 26. This application has been filed by the respondent seeking to produce the notice dated 28.02.2008, the copy of sale deed dated 17.11.1988 in favour of the defendant and the reply dated 2.01.2009, the bank pass book of the plaintiff and receipt of depositing the balance sale consideration into Court. 27. CMP No. 12091 of 2017: 26. This application has been filed by the respondent seeking to produce the notice dated 28.02.2008, the copy of sale deed dated 17.11.1988 in favour of the defendant and the reply dated 2.01.2009, the bank pass book of the plaintiff and receipt of depositing the balance sale consideration into Court. 27. As already stated the notice and the reply notice were filed along with the plaint and the proof affidavit of the plaintiff probably by mistake not marked by the trial Court. Hence, there can be no objection to the receipt of additional evidence. Insofar as the sale deed and pass book, the title of the defendant is not in dispute. Therefore, I do not find the sale deed is necessary for determining the questions involved in this appeal. 28. The bank pass books relate to the period after the suit therefore I do not think they could be received in evidence under Order 41 Rule 27 of CPC. 29. As regards the receipt of Court deposit, the plaintiff has produced the said receipt to show that he has deposited a sum of Rs. 9,76,000/- on 10.08.2010 before the Trial Court, that Rs. 9,76,000/- only represents the consideration for 1 acre 71 cents and not 1 acre 91 cents. Though the receipt came into existence pending the suit the receipt of same in evidence will not cause any prejudice to the appellant. Therefore, C.M.P. No. 12091 is allowed in part and the documents namely advocate notice dated 28.02.2008, the reply notice dated 02.01.2009 and the receipt dated 09.08.2010 are received in evidence and marked as Ex.A3, A4 and A5. Since, the documents are not in dispute and that they are admitted documents, I do not see any necessity for any oral evidence in proof of the said documents. 30. In fine, the appeal is allowed, the judgment and decree of the trial Court is set aside and the suit in O.S. No. 263 of 2008 will stand dismissed. However, there will be no order as to costs this appeal. From the interim order passed in the stay petition, it is seen that the appellant had deposited a sum of Rs. 31,000/- pursuant to the condition imposed, while granting stay. The respondent is permitted to withdraw the said sum of Rs.31,000/-.