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2018 DIGILAW 1002 (MAD)

V. R. Natesan v. Sundarammal

2018-03-12

PUSHPA SATHYANARAYANA

body2018
JUDGMENT : 1. The plaintiff in the suit for specific performance is the appellant. 2. The plaintiff entered into a contract with the defendants 1 to 3 and one Chinnaraj on 16.01.2007, for purchasing the suit property belonging to them at the rate of Rs.1,50,000/- per acre and paid an advance of Rs.1,00,000/-. A period of six months time was fixed for the completion of the sale. The property originally belonged to one Rangaiah Gowder and his wife is the first defendant and his daughters are the second and third defendants. Chinnaraj is his son. Though the plaintiff was ready and willing to perform his part of the contract as per the sale agreement, the defendants were evading the same. However, it is stated that the defendants sent a telegram on 14.07.2007 to the plaintiff calling upon him to pay the balance of the sale consideration and to obtain the sale deed in his favour on or before 16.07.2007. On receipt of the same, the plaintiff had also sent a suitable reply telegram stating that he was ready and willing to perform his part of the contract and went to the Sub Registrar Office on the date fixed by the defendants to complete the sale. However, the defendants did not turn up. Hence, the plaintiff issued a legal notice on 19.06.2008. But the said notice was returned with the endorsement no such addresses. Thereafter, after ascertaining new address of the defendants, another notice was sent on 30.04.2009 to the defendants to the new address. On receipt of the said notice, Chinnaraj, who was owner of 1/4th portion of the suit property voluntarily came forward to execute a sale deed in favour of the plaintiff on 21.09.2009. The defendants 1 to 3 though are bound to execute the sale deed with respect to 3/4th of the share had not performed their part of the contract. Hence, the suit in O.S.No.739 of 2009 on the file of the I Additional Subordinate Court, Coimbatore, was filed. 3. Denying the averments made in the plaint, the defendants filed the written statement contending that the plaintiff was never ready and wiling to perform his part of the contract within six months, as agreed in the agreement by paying the balance of the sale consideration. As the plaintiff was not ready and willing, a telegram was sent. 3. Denying the averments made in the plaint, the defendants filed the written statement contending that the plaintiff was never ready and wiling to perform his part of the contract within six months, as agreed in the agreement by paying the balance of the sale consideration. As the plaintiff was not ready and willing, a telegram was sent. It is further contended that the plaintiff had not replied to the telegram and his claim that he was present in the Sub Registrar office on the date fixed by the defendants with the balance of sale consideration and was willing to perform his part of the contract, however, the defendants did not turn up is not true. It is also stated that a suit in O.S.No.316 of 2007 was filed on the file of the District Munsif, Mettupalayam, by the defendants against their brother Chinnaraj for partition. The said suit was decreed in favour of the defendants based on which the said Chinnaraj had executed the sale deed in favour of the plaintiff with respect to his 1/4th share. The defendants further contended that the said Chinnaraj was colluding with the plaintiff and was acting against the interest of the defendants. Hence, they sought for dismissal of the suit. 4. Before the Trial Court, the plaintiff examined himself as P.W.1 and marked Exs.A.1 to A.11. On the side of the defendants, third defendant was examined as D.W.1 and Exs.B.1 to B.3 were marked. 5. Upon considering the oral and documentary evidence, the Trial Court decreed the suit, against which, A.S.No.50 of 2014 on the file of the Principal District Court, Coimbatore, was filed by the defendants. The First Appellate Court allowed the appeal and dismissed the suit on 16.03.2017 reversing the judgement and decree of the Trial Court. Aggrieved over the same, the plaintiff filed the above Second Appeal. 6. Notice in the second appeal was ordered on 24.07.2017. The respondents/defendants have been served as early as on 05.08.2017 and their names have been shown in the cause list. In spite of the same, they have chosen not to appear either in person or through a Counsel. It is pertinent to note that the respondents/defendants also had refused to receive the private notice. Hence, this Court heard the learned counsel for the appellant/plaintiff. 7. In spite of the same, they have chosen not to appear either in person or through a Counsel. It is pertinent to note that the respondents/defendants also had refused to receive the private notice. Hence, this Court heard the learned counsel for the appellant/plaintiff. 7. This Court is of the view that the following substantial questions of law arise for consideration in this second appeal: (1) Whether the plaintiff was ready and willing to perform his part of the contract? (2) Whether the plaintiff had approached the Court belatedly? 8. The first defendant is the mother and the second and third defendants are daughters. The first defendant also had another son, namely, Chinnaraj. The relationship between the parties are admitted. After the death of Rangaiah Gowder, the properties devolved on all the four legal heirs. The execution of sale agreement is admitted. From the records, it is seen that the defendants 1 to 3 had filed a suit against Chinnaraj for partition of the suit property as well as to handover the advance amount, which was received by him as per the agreement. The agreement was marked as Ex.A.1 before the Trial Court. From the averments of the plaint in O.S.No.316 of 2017, it is evident that the sale agreement was executed by the parties and an advance of Rs.1,00,000/- was received by them. Thus, the finding is that Ex.A.1 sale agreement is true, valid and genuine. Question No.(1) 9. The next question that would arise for consideration is whether the plaintiff was ready and willing to perform his part of the contract. The defendants had issued a telegram on 14.07.2007 calling upon the plaintiff to pay the balance sale consideration and obtain the sale deed in his favour on or before 16.07.2007. It is the specific case of the plaintiff that on the said date, he was present before the Sub Registrar office along with the balance of the sale consideration. To evidence, the plaintiff had filed Ex.A.10, which is the sale deed dated 16.07.2007. In the said document, the plaintiff was figured as a witness. The signature found on the said document (Ex.A.10) is also not disputed by the defendants. To evidence, the plaintiff had filed Ex.A.10, which is the sale deed dated 16.07.2007. In the said document, the plaintiff was figured as a witness. The signature found on the said document (Ex.A.10) is also not disputed by the defendants. As the said deed corroborates and affirms the presence of the plaintiff in the Sub Registrar office on the date mentioned by the plaintiff, it is the defendants, who did not turn up on that date, and hence, they are estopped from contending that the plaintiff was not ready and willing to perform his part of the contract. The Lower Appellate Court rejected the contention of the plaintiff in this behalf on the ground that the statement of accounts filed under Ex.A.9 showed that there was a balance of Rs.10,178/- in the account of the plaintiff. Ex.A.9 is dated 19.12.2010, whereas, the date fixed by the plaintiff for execution was 16.07.2010. There is no straight jacket formula to test the readiness and willingness, but the same depends upon the conduct of parties to the agreement prior and subsequent to the filing of the suit. As held above, the plaintiff had been at all time ready and wiling to perform his part of contract. On the other hand, it is the defendants, who had defaulted in executing the document. Therefore, the claim of the plaintiff cannot be rejected on the ground that he was not ready and willing, as he did not have sufficient fund with him. Hence, this question is answered in favour of the plaintiff and against the defendants. Question No.(2) 10. The next aspect to be considered is as to whether the plaintiff had approached the Court belatedly. The plaint was filed on 17.12.2009, whereas the agreement to sell was entered into on 16.01.2007. Learned counsel for the appellant placed her reliance on this aspect on paragraph 6 of the judgment of the Supreme Court in Motilal Jain V. Ramdasi Devi, (2000) 6 SCC 420 , the relevant portion of which reads as follows: ...... 6. The first ground which the High Court took note of is the delay in filing the suit. Learned counsel for the appellant placed her reliance on this aspect on paragraph 6 of the judgment of the Supreme Court in Motilal Jain V. Ramdasi Devi, (2000) 6 SCC 420 , the relevant portion of which reads as follows: ...... 6. The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property: (i) Delay running beyond the period prescribed under the Limitation Act; (ii) Delay in cases where though the suit is within the period of limitation, yet: (a) due to delay the third parties have acquired rights in the subject-matter of suit; (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief. ........ 11. It is not the case of the defendants/respondents that the plaintiff/appellant had filed the suit beyond the period prescribed under the Limitation Act. Though the suit was filed within the period fixed by Limitation Act, whether the conduct of party would lead to deliberate delay. The plaintiff/appellant had filed the suit within the period of limitation. The defendants, having received the advance amount and having not denied the contents of the sale agreement, was not ready and willing to perform their part of the contract and there is no convincing reason coming forth from them for their absence on the date fixed for execution for sale dated 16.07.2007. In the cross-examination, D.W.1 had categorically admitted as follows: “TAMIL” Thus, D.W.1 has specifically admitted that despite issuance of a telegram calling upon the plaintiff to perform his part of the contract, they had not gone to the Sub Registrar's office. 12. It is settled principle that intention to make time as essence of the contract or to pay the balance of sale consideration within the stipulated time should be derived from the express terms or the circumstances set out in the sale agreement. In the case on hand, though six months time had been prescribed for the performance of the sale, despite the defendants themselves issuing a telegraphic notice, they have not honoured the same by executing the sale deed in favour of the plaintiff. In the case on hand, though six months time had been prescribed for the performance of the sale, despite the defendants themselves issuing a telegraphic notice, they have not honoured the same by executing the sale deed in favour of the plaintiff. Thus, the plaintiff was ready and willing to part with the sale consideration, but it was only the defendants who have been avoiding the same. The suit is also filed within the period of limitation. Thus, on a careful consideration of the findings and the correspondence between the parties, this Court has got no hesitation in accepting the conclusions reached by the Trial Judge and that the appellant was ready and willing to perform his part of the contract and it was only the defendants/respondents, who were evading their responsibility. 13. In the result, the Second Appeal is allowed on the ground that the respondents had failed to establish that the time is the essence of the contract. Thus, the judgment and decree of the Lower Appellate Court is set aside and that of the Trial Court is restored. No costs. Consequently, pending application is closed.