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2020 DIGILAW 132 (MAD)

A. Sridharan, Rep. by v. Rama VS B. Gowri

2020-01-13

N.SATHISH KUMAR

body2020
JUDGMENT : Aggrieved over the judgment and decree of the Trial Court in the suit filed for specific performance, the present appeal came to be filed. 2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court. 3. The brief facts leading to the filing of the suit are as follows: The first defendant is the owner of the suit property. The second defendant is his brother. The first defendant has agreed to sell the vacant house site for a sale consideration of Rs.9,00,000/- [Rupees Nine Lakhs only] and executed a sale agreement in favour of the plaintiff on 20.07.2005 and received Rs.1,00,000/- as advance on the same day. It is agreed between the parties that the sale consideration was fixed at Rs.300/- per square feet and for total extent of 3000 square feet, Rs.9,00,000/- [Rupees Nine Lakhs only] was arrived by the parties. The first defendant has agreed to measure the suit property with the help of a Surveyor and complete the sale transaction, within a period of six months, which is the essence of contract. He has also agreed to receive the balance sale consideration to the actual extent available as per the measurement. The plaintiff is always ready and willing to pay the balance sale consideration and complete the sale transaction, but, despite the attempts made by the plaintiff, the first defendant has not taken any steps to complete the sale transaction as agreed. Therefore, the plaintiff issued a legal notice dated 25.07.2006. The first defendant has managed to return the same. In fact, the plaintiff has expressed her willingness to pay the balance sale consideration and complete the sale transaction on 08.01.2006 and 14.01.2006 through her husband. In addition to that, it was also informed to the first defendant's brother, by name Krishnan, the second defendant in person. Further, the plaintiff has also informed her willingness to complete the sale transaction through fax to the first defendant. The first defendant has informed the plaintiff that he will come out to India in June or July, 2006 and he will execute the sale deed. Despite the fact, the first defendant came out to India only on 20.07.2006 and he has not come forward to receive the balance sale consideration and complete the sale transaction. The first defendant has informed the plaintiff that he will come out to India in June or July, 2006 and he will execute the sale deed. Despite the fact, the first defendant came out to India only on 20.07.2006 and he has not come forward to receive the balance sale consideration and complete the sale transaction. Therefore, the plaintiff has again issued a legal notice to the mother of the defendants and the second defendant on 12.09.2006, which was refused to receive by them. The plaintiff is always ready and willing to perform her part of contract. Hence, the suit. 4. The second defendant filed a written statement on his behalf and also on behalf of the first defendant. It is the contention that as per the agreement, the plaintiff ought to have paid the balance sale consideration of Rs.8,00,000/-, within six months from the date of agreement. The time is essence of contract. Only in view of urgency of the matter, the first defendant initially agreed for selling of the property and might have entered into the sale agreement. But, within the time mentioned in the agreement, the plaintiff has not paid the balance sale consideration and dragged on the matter to the maximum extent. The plaintiff is aware that the first defendant will leave the country and purposely, has not completed the transaction, within the time mentioned in the sale agreement. The other allegation with regard to the measurement, etc., is denied by the second defendant. Whenever this defendant approached the plaintiff, the plaintiff told this defendant that the plaintiff will approach the first defendant directly and this defendant need not say anything regarding the sale agreement. The allegation as to the information to the first defendant is bereft of particulars. The place and time is not mentioned in the plaint and this defendant is not aware of the so called notice said to have been issued by the plaintiff. The plaintiff, only after verifying the fact that the first defendant has left India, might have issued the notice. The plaintiff has not represented to the second defendant in person regarding her willingness to purchase the property. She has also not informed that she is willing to pay the balance sale consideration amount. The plaintiff, only after verifying the fact that the first defendant has left India, might have issued the notice. The plaintiff has not represented to the second defendant in person regarding her willingness to purchase the property. She has also not informed that she is willing to pay the balance sale consideration amount. If the plaintiff was really willing to purchase the property, she might have sent the balance sale consideration by way of demand draft to the first defendant or might have issued notice, when the first defendant was available in India. Just to cover up the delay and laches on the part of the plaintiff, the plaintiff, without any legal right, might have issued a legal notice to the mother of the second defendant and also the second defendant. The second defendant has not refused any notice. The plaintiff is clearly aware of the non-availability of the second defendant and just for record purpose, might have sent notice during the absence of the second defendant. The delay is only on the part of the plaintiff. The plaintiff has not approached this Court with clean hands and suppressed several material facts. The second defendant is not the owner of the property. He cannot sell the property to any third party. Readiness and willingness is absent on the part of the plaintiff during the period of agreement. The second defendant is added only in his individual capacity and he was not added in the above suit as power agent. No notice was issued to the second defendant when he was available. There is no cause of action for the suit. Hence, he prayed for dismissal of the suit. 5. On behalf of the first defendant also, similar stand was taken by the second defendant. 6. In the additional written statement, it is stated by the second defendant that the relief is time barred. The time fixed under the agreement is six months. Within the said period, the plaintiff was not ready and willing to perform her part of contract. The delay and laches are only with the plaintiff. The plaintiff has also burked the fact in the plaint that she has gone to foreign country and, therefore, was unable to perform her part of contract, within the time mentioned in the sale agreement. The alternative relief for return of advance amount was amended later beyond the period of three years. The plaintiff has also burked the fact in the plaint that she has gone to foreign country and, therefore, was unable to perform her part of contract, within the time mentioned in the sale agreement. The alternative relief for return of advance amount was amended later beyond the period of three years. 7. Based on the above pleadings, the Trial Court has framed the following issues: "(i) Is it true that the first defendant has agreed to sell the property to the plaintiff and entered into an agreement? (ii) Is it true that the advance amount of Rs.1,00,000/- [Rupees One Lakh only] was received by the first defendant? (iii) Is it true that the time is essence of contract?. (iv) To what relief, the plaintiff is entitled?." 8. The following additional issues were also framed for consideration: (i) Whether the plaintiff is entitled for alternative relief? (ii) Whether the suit is barred by limitation? (iii) Whether the plaintiff is entitled to alternative relief with interest? (iv) To what relief, the plaintiff is entitled? (v) Whether the suit is bad for misjoinder of parties?" 9. On the side of the plaintiff, the plaintiff herself was examined as P.W.1 and Exs.A.1 to A.8 were marked. On the side of the defendants, the second defendant himself was examined as D.W.1 as power agent of the first defendant and D.W.2 was examined as an individual capacity. No documents were marked on the side of the defendants. 10. Based on the evidence adduced both oral and documentary, the Trial Court, though there is no specific issue with regard to the ready and willingness on the part of the parties, has discussed in detail with regard to the ready and willingness and finally, found that the plaintiff is entitled to specific performance, as against which, the present appeal came to be filed. 11. Mr.S.Parthasarathy, learned counsel appearing for the first appellant and Mr.K.Balasundaram, learned counsel appearing for the second appellant mainly contended that in the agreement, six months time is fixed for completion of sale. Whereas, the suit has been filed after one year and two months, i.e., after the expiry of the period. The plaintiff was not at all ready and willing to perform her part of contract. Whereas, the suit has been filed after one year and two months, i.e., after the expiry of the period. The plaintiff was not at all ready and willing to perform her part of contract. Her allegation in the plaint that on 08.01.2006 and 14.01.2006 she made an oral request to the second defendant, whereas, in her evidence, she has given contrary version. Further, the alleged fax message sent to the first defendant has also not been established. According to the plaintiff, the first defendant refused execution of the document on 20.07.2006. Whereas, the suit was filed on 09.03.2007 much after six months. Readiness and willingness has not been established. The plaintiff has not issued any notice to measure the property as agreed in the agreement. The fax-Ex.A.7 filed only at the time of re-examination. Therefore, possibility of creating a document also cannot be ruled out. But, in any event, it is their contention that being the plaintiff, she must show ready and willingness from the inception of the agreement for seeking equitable relief of specific performance. The entire evidence adduced on the side of the plaintiff clearly shows that she was not ready and willing to perform her part of contract. The legal notices have been sent, when the first defendant left India. This fact clearly indicates that the plaintiff has not come to the Court with clean hands. Hence, it is submitted that the finding of the Trial Court that the plaintiff was ready and willing to purchase the property cannot be sustained. In support of the submissions, the learned counsel has also relied upon the following judgments: (i) Saradamani Kandappan v. S.Rajalakshmi [ 2011(4) CTC 640 ]; and (ii) Hemanta Mondal and others v. Sri Ganesh Chandra Naskar [ 2016(3) LW 210 ]. 12. Whereas, Mr.M.L.Ramesh, learned counsel appearing for the respondent submitted that the first defendant, having executed an agreement in favour of the plaintiff, has not measured the property, as agreed between them. The obligation cast on the first defendant has not been discharged. The time is not an essence of contract. In fact, the agreement stipulates that within six months, the first defendant has to measure the property and only after measurement, payment to the actual extent has to be made. The first defendant, having entered into an agreement, has simply left India. The time is not an essence of contract. In fact, the agreement stipulates that within six months, the first defendant has to measure the property and only after measurement, payment to the actual extent has to be made. The first defendant, having entered into an agreement, has simply left India. The plaint pleadings clearly indicate that the plaintiff has made several attempts and informed her readiness and willingness to the first defendant. In fact, fax was also sent, which has been received by him. The evidence of P.W.1 clearly proved that the first defendant has, in fact, informed that he will come to India and execute the document. However, after visiting India, he left immediately without discharging his obligation contained in the agreement. Notice sent to the first defendant is also refused. Thereafter, notice dated 12.09.2006 was also sent to the second defendant and his mother only, so that, they can inform the first defendant. The above notice is also refused by them. It is his further contention that the first defendant, having entered into an agreement, did not enter into the witness box and the fax message is not denied. D.W.1 examined on the side of the defendants admitted in his evidence that he has no objection for granting specific performance. Ex.A.8 filed on the side of the plaintiff proves that she had cash in her hand to fulfil her obligation. Hence, it is submitted that the Trial Court has analysed the materials in proper perspective and granted the decree and judgment. Hence, it is submitted that the same does not require any interference. 13. In the light of the above submissions, now, the point arose for consideration in this appeal are as follows: (i) Whether the plaintiff was always ready and willing to perform her part of contract? (ii) Whether six months period stipulated in the agreement was essence of contract? (iii) Whether the first defendant has committed default in discharging his obligation in the agreement? and A.S.(MD)No.26 of 2010 (iv) To what relief, the parties are entitled?" 14. Execution of agreement is admitted by both sides and receipt of advance amount of Rs.1,00,000/- [Rupees One Lakh only] on the date of agreement is not denied by the defendants. (iii) Whether the first defendant has committed default in discharging his obligation in the agreement? and A.S.(MD)No.26 of 2010 (iv) To what relief, the parties are entitled?" 14. Execution of agreement is admitted by both sides and receipt of advance amount of Rs.1,00,000/- [Rupees One Lakh only] on the date of agreement is not denied by the defendants. Ex.A.1, when carefully seen, the first defendant has entered into an agreement for sale of approximately 3000 square feet for a sum of Rs.9,00,000/- [Rupees Nine Lakhs only] and received Rs.1,00,000/- [Rupees One Lakh only] as advance on the date of agreement. As per one of the specific clauses, viz., clause No.2 in the agreement, the first defendant has agreed to measure the property within six months from the date of agreement. The recitals in the agreement makes it clear that in fact, the first defendant has agreed to survey the property within six months from the date of agreement. As per the actual measurement, the second party, namely, the plaintiff has agreed to pay the amount. It is also specifically agreed between the parties that the plaintiff, only after measurement of the properties, has to purchase the stamp papers on the value of the property and prepare the sale deed and hand over the remaining sale consideration to the first defendant. The recitals in the agreement makes it very clear that for completion of sale, six months time has not been agreed. What was agreed by the first defendant is to measure the property within six months from the date of agreement. On such measurement, the plaintiff has to pay the remaining sale consideration on actual extent and purchase the stamp papers and pay the balance sale consideration. From the above written contract-Ex.A.1, it can be easily concluded that the parties are never intended to complete the sale itself within six months from the date of agreement. What was agreed between the parties is that the first defendant has to measure the property within six months from the date of agreement and receive the balance sale consideration on actual extent. Therefore, the recitals in the agreement makes it clear that the obligation is cast on the first defendant to measure the property as agreed by him. 15. What was agreed between the parties is that the first defendant has to measure the property within six months from the date of agreement and receive the balance sale consideration on actual extent. Therefore, the recitals in the agreement makes it clear that the obligation is cast on the first defendant to measure the property as agreed by him. 15. In view of the above agreed terms between the parties, if the materials and pleadings of the respective parties are analysed, it is the case of the plaintiff that the first defendant, having executed an agreement, has not measured the property, within a period of six months and the plaintiff is always ready and willing to perform the part of contract. The evidence of the plaintiff also disclosed that the first defendant left India after agreement and he was in Switzerland. The pleadings of the plaintiff clearly indicates that she has been constantly requesting the first defendant to execute the sale deed and complete his part of obligation. The specific pleading is that on 08.01.2006 and 14.01.2006 she spoke to the first defendant. Besides, she also sent a fax message, which is also marked as Ex.A.7. Issuing fax is not specifically denied in the written statement. In the chief-examination of P.W.1, sending of fax-Ex.A.7 is not disputed seriously. What was contended in the cross-examination of P.W.1 is that there was no proper proof filed for receipt of such fax by th first defendant. Whereas, the contents of Paragraph No.6 of the plaint with regard to the fax sent to the first defendant, are not denied in the written statement. 16. Be that as it may, the evidence of P.W.1 and D.W.1, when read in its entirety, make it very clear that the first defendant, after execution of the agreement, has left India and was in Switzerland. It is the further contention of the plaintiff that the first defendant has visited India only in the month of June, July, 2006. At that time also, he did not come forward to execute the agreement. Therefore, the plaintiff sent legal notice-Ex.A.2-dated 25.07.2006. However, the same was returned. Therefore, another legal notice was also sent to the mother of the defendants and also the second defendant in Ex.A.4 dated 12.09.2006, which was also refused. At that time also, he did not come forward to execute the agreement. Therefore, the plaintiff sent legal notice-Ex.A.2-dated 25.07.2006. However, the same was returned. Therefore, another legal notice was also sent to the mother of the defendants and also the second defendant in Ex.A.4 dated 12.09.2006, which was also refused. Though the defendants have taken a stand in the written statement that the legal notice has not been sent, the evidence of D.W.1 and D.W.2, when carefully seen, issuance of the legal notice has been admitted, but, it is the only contention that the same was issued when he was not available. 17. It is also to be noted that the second defendant, claiming to be the power agent of his brother-the first defendant, filed a written statement not only in individual capacity, but also on behalf of his brother as power agent. But the so called power of attorney has not seen the light of the day. In fact, the stand of the second defendant is that he was unnecessary party and he has totally not connected with the property or agreement. Therefore, the suit has to be dismissed. Whereas, in evidence, he has contested the suit on the ground that the plaintiff was not ready and willing to perform the part of contract. It is also the specific case of the plaintiff that she has spoken with the first defendant on 08.01.2006 and 14.01.2006 through phone, at that time, the first defendant informed that he will come to India and execute the document. The above evidence is also not seriously disputed in the cross-examination. Ex.A.7-fax message, when carefully seen, sending of fax, in fact, is not denied in the written statement. P.W.1 has sent a letter to the address of D.W.1 to his fax number, wherein, she has stated that she expressed her condolence to the death of inlaws of the first defendant and she has also narrated that the first defendant has informed that due to the death in the family, he will execute the document at a later point of time. Therefore, she has requested the first defendant to inform ten or fifteen days prior to coming to India, so that, she will pay the remaining sale consideration. This fact is also not disputed. 18. Therefore, she has requested the first defendant to inform ten or fifteen days prior to coming to India, so that, she will pay the remaining sale consideration. This fact is also not disputed. 18. It is to be noted that the plaintiff and the defendants are the neighbours, which is not disputed in the evidence also and the suit property is situated in the rear side of the other plaintiff's property. The agreement itself clearly indicates that the property is in the rear side and the plaintiff is also neighbour of the defendants. Only in this context, agreement was entered between the parties. The fax Ex.A.7 clearly indicates that in fact, the plaintiff has expressed her willingness from the very beginning and only the first defendant has delayed the execution of the sale deed or measurement of the property not only on the ground of death of in-laws but also some other reasons. The evidence of P.W.1 to the effect that she also personally requested over phone is also not seriously disputed and within six months, measurement of the property has not been carried out by the first defendant. The evidence, as already discussed, clearly shows that the first defendant has left India after agreement and he has not taken any steps to perform his part of obligation. 19. Further, the plaintiff's side document Ex.A.8 clearly indicates that the plaintiff had sufficient funds in her husband's name and a sum of Rs.8,50,000/- was in deposit in Kumbakonam Central Co-operative Bank Limited. This fact clearly indicates that the plaintiff has also had a capacity to pay the remaining sale consideration. Besides, she has also deposited the amount, for which, lodgment schedule was also filed, which is evident from the statement of P.W.1 in her chief-examination. It is also curious to note that what was the nature of discussion between the plaintiff and the first defendant is also exclusively within the knowledge of the parties. The plaintiff has asserted that when she has been continuously requesting the first defendant, he has agreed to come out to India and execute the sale agreement, but, he did not execute the sale agreement. It is for the first defendant to challenge such assertion made by the plaintiff. The first defendant has not chosen to examine himself before the Trial Court. It is for the first defendant to challenge such assertion made by the plaintiff. The first defendant has not chosen to examine himself before the Trial Court. Further, the evidence of P.W.1 indicates that even when the first defendant visited India in July 2006, she made an attempt to get the sale deed executed. However, he refused to execute the sale agreement. Therefore, she sent a legal notice. 20. It is curious to note that the second defendant was made as a formal party, being the brother of the first defendant, since he was looking after the property of the first defendant. He has taken a stand that he was unnecessary party to the suit, however, resisted the suit. He has filed a written statement in his individual capacity as well as the power agent of the first defendant. He has also stated that the so called power of attorney has not been filed before the Court. It is also curious to note that the second defendant has been examined as D.W.1 and also as D.W. 2. Such practice of D.W.2 examining himself as two different witnesses, is totally unwarranted. In fact, the Trial Court has also allowed such recording of evidence. Be that as it may, D.W.1, in his evidence, particularly, in his cross-examination, has categorically admitted that he has no connection with Ex.A.1. That is what he has taken a stand that he is not a necessary party in the suit. Further, he has admitted as follows: "The recitals in the agreement- Ex.A.1 is correct. Whether the plaintiff was ready and willing, he does not know. Further, he has also admitted that he has no objection to sell the property to the plaintiff and he has no objection to grant a decree in favour of the plaintiff. Further, he has also admitted in his evidence that legal notice was also sent to him, but, it was not served, since he was not available at the relevant point of time." 21. It is to be noted that when the second defendant was examined as D.W.2, he has admitted that since his mother was not well, he has not received the legal notice. From the evidence available on record, it can be seen that only the first defendant, having entered into an agreement, has defaulted in conducting the survey and measuring the property. From the evidence available on record, it can be seen that only the first defendant, having entered into an agreement, has defaulted in conducting the survey and measuring the property. The recitals and agreement clearly indicate that only after such measurement, remaining sale consideration has to be paid by the plaintiff. These facts clearly show that the first defendant has left India and visited India only in the month of July, 2006. Thereafter also, he did not take any steps to perform his part of obligation. Therefore, legal notice was sent. Besides, the evidence of P.W.1 clearly proves the fact that she has also expressed her ready and willingness over phone to the first defendant. That apart, fax message was also sent under Ex.A.7, which is also not disputed. The first defendant, who has exclusively knowledge about this conversation and discussion, has chosen not to examine himself before the Court below. The second defendant was examined as D.W.1 and D.W.2, who had no personal knowledge about this discussion between the plaintiff and the first defendant. Therefore, the evidence of D.W.1 and D.W.2 will not be helpful in any manner to non-suit the plaintiff's ready and willingness. The first defendant, having exclusive knowledge about the fact as to what had transpired between the parties, failed to appear before the Court to deny the allegation pressed into service against him. When the first defendant conveniently has chosen not to examine himself, this Court has to necessarily draw an adverse inference against him and draw an inference that the allegation of the plaintiff that she has been continuously making attempts to get the sale deed registered, but, the first defendant did not come forward to do so, is true. Besides, the plaintiff also filed fax message, which is also clearly established that she expressed her ready and willingness to purchase the property. 22. From the analysis of the evidence, it can be seen that only the first defendant has protracted and delayed the execution of the sale deed. The facts and circumstances of the case clearly prove that it is only the first defendant having received the advance has not discharged his obligation to measure the property. The plaintiff has clearly demonstrated her readiness and willingness from the inception. The facts and circumstances of the case clearly prove that it is only the first defendant having received the advance has not discharged his obligation to measure the property. The plaintiff has clearly demonstrated her readiness and willingness from the inception. She has also proved her wherewithal by Ex.A.8 and the first defendant has also not come before the Court to deny the specific allegation with regard to the conversation between the plaintiff and himself and the fax message. Therefore, this Court has come to a definite conclusion that the first defendant is a defaulting party and once the plaintiff has shown her ready and willingness, she is entitled to specific performance. It would be unreasonable and unequitable to deny the relief merely on the basis of the alleged escalation of the prices. The only delay on the part of the plaintiff is filing of the suit with six months delay after the first defendant visited India on 20.07.2006. The suit has been filed on 09.03.2007. Only for that delay, when the first defendant has taken advantage and failed to discharge his obligation as per the contract, this Court is of the view that the relief of specific performance cannot be refused, when the plaintiff is otherwise established her readiness and willingness to perform her part of contract. Now, the suit has been filed to purchase the property as per the agreement for the same consideration. Now, the entire sale consideration has been deposited and the plaintiff has performed her part and she has, in fact, filed the suit to take the property as per the agreement on agreed extent (i.e., actual extent available on ground). Such being the position, the plaintiff is certainly entitled to specific performance. 23. In the judgment reported in 2011(4) CTC 640 [Saradamani Kandappan v. S.Rajalakshmi], the Hon'ble Apex Court, considering the March of Law and changes in socioeconomic conditions, has negatived the relief of specific performance and refunded the advance with higher interest. In the above case, the Hon'ble Apex Court has held the time stipulated for payment of the balance price by the plaintiff was the essence of the contract and when the same was not paid, the defendants were justified in cancelling the sale agreement. Whereas, in this case, the question of paying the remaining sale consideration would arise only after measurement, particularly, obligation on the part of the defendants is discharged. Whereas, in this case, the question of paying the remaining sale consideration would arise only after measurement, particularly, obligation on the part of the defendants is discharged. Such obligation has not been discharged by the first defendant. 24. In the judgment reported in 2016(3) LW 210 [Hemanta Mondal and others v. Sri Ganesh Chandra Naskar], the Hon'ble Apex Court, taking note of the fact that no loss suffered by the plaintiff, exercising discretion in Section 20 of the Specific Relief Act, negatived the relief. 25. But, as discussed above, in the case at hand, only the backyard of the defendants' property agreed to be sold to the plaintiff, who is admittedly a neighbour. The plaintiff has shown readiness from the inception. Whereas, only the defendants have avoided the contract. In fact, the first defendant has not even chosen to examine himself and D.W.1 - the second defendant, in his evidence, has categorically admitted that he was not aware of whether the plaintiff was ready and willing. Such being the position, as discussed above, this Court is of the view that the plaintiff is certainly entitled to specific performance. 26. This Court is also taking note of the fact that there was some delay in filing the suit within six months and taking note of the escalation of the prices, the first defendant has to be compensated for the delay. Such compensation has to be necessarily based on the increase in the value of the property. It is an admitted fact that the value of the property is increasing every year. Therefore, taking into consideration of the above facts, this Court, on equity, directs the plaintiff to deposit a further sum of Rs. 6,00,000/- [Rupees Six Lakhs only], in addition to the agreed sale consideration, to the credit of the suit in O.S.No.19 of 2007. Admittedly, all the sale consideration has been paid. Upon such deposit, the first defendant is directed to execute the sale deed conveying the suit property in favour of the plaintiff. The plaintiff shall have two months time from today to deposit the amount of Rs. 6,00,000/- [Rupees Six Lakhs only]. Accordingly, all the points are answered against the appellants. 27. In the result, this Appeal fails and accordingly, the same is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.