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2021 DIGILAW 1098 (MAD)

B. Yuvasurya(minor) v. R. Panneerselvam

2021-03-25

G.JAYACHANDRAN

body2021
JUDGMENT : (Prayer: Appeal Suit has been filed under Section 96 of the Civil Procedure Code r/w Order 41, Rule 1 of the Civil Procedure Code against the judgment and decree of the learned Principal District Judge at Vellore, O.S.No.66 of 2015, dated 10.07.2017.) (The case has been heard through Video Conferencing) 1. The appellant herein is the third defendant in the suit filed for specific performance. Aggrieved by the judgment and decree passed by the trial Court, the present appeal is filed. 2. Brief facts of the case is that, the plaintiff Panneerselvam entered into an agreement with the 1st defendant Baskaran, his minor sons Yogesh and Yuvasuriya in respect of the suit property for a sale consideration of Rs.11,00,000/-. The first defendant received a sum of Rs.10,00,000/- towards advance and part of the sale price from the plaintiff and acknowledged the receipt of the same. The property belonged to the first defendant and the other two defendants were added as formal parties to the agreement by way of caution by the first defendant. The part of the sale consideration was received by the first defendant in three instalments viz., Rs.5,00,000/- on 15.12.2012; Rs.1,00,000/- on 12.02.2013 and Rs.4,00,000/- on the date of agreement i.e. on 30.01.2014. The balance of Rs.1,00,000/- was agreed to be paid by the plaintiff within a period of 15 months from the date of agreement. The sale agreement was duly registered on the file of the Sub Registrar, Vellore. 3. The original settlement deed executed by the mother of the first defendant in favour of the first defendant handed over to the plaintiff. The plaintiff was ready and willing to pay the balance sale consideration and get the sale deed executed at his cost and expressed the same to the first defendant during the last week of April 2015. The defendant gave evasive reply. Again on 29.04.2015, the plaintiff called upon the defendants and requested them to receive the balance sale consideration and execute the sale deed. The first defendant sought one week time to perform his part of contract expressing some personal reasons. But, the plaintiff came to know that the first defendant was negotiating with the third parties to sell the suit property for higher price. The first defendant sought one week time to perform his part of contract expressing some personal reasons. But, the plaintiff came to know that the first defendant was negotiating with the third parties to sell the suit property for higher price. Hence, legal notice dated 04.05.2015 was issued to the defendants calling upon them to receive the balance sale consideration and execute the sale deed on his behalf and on behalf of defendants 2 and 3. The first defendant received the notice on 05.05.2015. But, he failed to reply the notice. Hence, suit for specific performance of the contract of sale dated 30.01.2014 and injunction restraining the defendants or their agent from alienating the suit property to any third party thereby creating any encumbrance over the suit property. 4. Defendants 1 and 2 though received notice, remained ex parte. The minor third defendant through his Court guardian filed written statement denying his obligation to perform the contract. In the written statement, he pleaded complete ignorance about the agreement for sale executed by the first defendant on his behalf as natural guardian. Both defendants 2 and 3 were minors at the time of contract and therefore, the due execution of the agreement by the first defendant has to be proved by the plaintiff. No pre-suit notice was received by him from the plaintiff and the sale agreement was not for the benefit of the family and the said agreement for sale will not bind on him. 5. The Trial Court, based on the pleadings, framed the following issues:- (1) Whether the allegation that the sale agreement is not for the benefit of the family? (2) Whether the allegation that the sale agreement is binding upon the third defendant is true? (3) Whether the plaintiff is to a decree of specific performance of contract? (4) Whether the plaintiff is entitled to a decree of permanent injunction? (5) To what other relief the plaintiff is entitled? 6. The plaintiff examined as PW-1 and his wife Jayalakshmi, who is one of the attesting witnesses to the sale agreement was examined as PW-2. The original sale agreement marked as Ex.A1. The said original settlement deed executed by Dhanakotti ammal in favour of the first defendant in respect of the suit property marked as Ex.A2. The pre-suit notice copy was marked as Ex.A3. The original sale agreement marked as Ex.A1. The said original settlement deed executed by Dhanakotti ammal in favour of the first defendant in respect of the suit property marked as Ex.A2. The pre-suit notice copy was marked as Ex.A3. The postal acknowledgement for receipt of the notice by the first defendant marked as Ex.A4. 7. The trial Court held that to prove the execution of the sale agreement, one of the attestors was examined as PW-2. The Executor of the sale agreement/the first defendant has not denied the validity of the document. The third defendant, who was 16 years old at the time of the agreement had attained majority and denied the validity of the document without evidence to disprove the case of the plaintiff. Hence, the suit was decreed with cost directing the defendants 1 to 3 to execute the sale deed as per the sale agreement Ex.A1. 8. Aggrieved by the said judgment and decree, the present appeal is filed on the ground that the trial Court failed to frame proper issues, which has resulted in miscarriage of justice. The trial Court failed to consider that the alleged sale agreement is invalid and lapse by limitation. As per the sale agreement clause, the contract ought to have been completed within 15 months i.e. by 29.04.2015. The plaintiff had not taken any steps and not even shown his willingness by way of any written consent before the period fixed. He has not taken any steps to pay the balance sale consideration and receive the sale deed within 15 months period. Due to his failure to perform his contract within the time prescribed, he has to forfeit the money advanced and he has no locus standi to file the suit after 29.04.2015. The suit for specific performance filed on 09.06.2015 after the limitation period is barred. The trial Court erroneously without any evidence arrived at a wrong conclusion that the suit is maintainable and bind on the 3rd defendant, who was admittedly minor at the time of entering into the agreement for sale and there is no evidence to show that the property was agreed to be sold for the interest of the minors. 9. The learned counsel appearing for the appellant/3rd defendant submitted that as per the terms of the agreement, the time is the essence of the contract. 9. The learned counsel appearing for the appellant/3rd defendant submitted that as per the terms of the agreement, the time is the essence of the contract. Failure to seek the relief of specific performance within the time prescribed debar the plaintiff from enforcing the terms of the contract. 10. The learned counsel appearing for the respondents submitted that the suit property was settled in favour of the first defendant by her mother Dhanakkotti ammal through a registered settlement deed dated 15.03.1996. The first defendant is the absolute owner of the property. However, for abundant caution the sale agreement was executed by the first defendant on his behalf and on behalf his two minor sons. By the time, the suit filed, the 2nd defendant became major. In the sale agreement as well as in the plaint it has been specifically stated that though defendants 2 and 3 have no right over the property, they are only formal parties. The defendants 1 and 2 remained exparte and did not contest the suit. The third defendant who was minor at the time of contract was represented by a Court appointed guardian, who has filed the written statement and contested the suit. There is no evidence to show that the third defendant have any right over the suit property to resist the sale. Further, the plaintiff has proved the due execution of the registered sale agreement by examining himself and one of the attesting witnesses. Out of Rs.11,00,000/- fixed as sale price of the property, Rs.10,00,000/- has already been paid and the title deed of the property has already been handed over to the plaintiff to prove the due execution of the agreement and part performance. Therefore, there is no merit in the appeal. Hence, this appeal is liable to be dismissed. 11. Point for consideration:- (1) Whether the suit agreement Ex.A1 is barred by limitation? And (2) Whether the execution of the sale agreement can be resisted by the appellant herein? 12. Ex.A2 is the original settlement deed dated 15.03.1996. This has been executed by Dhanakkotti Ammal in favour of her son the first defendant Baskaran. The suit property is the absolute property of Dhanakkottai ammal, who has settled the property in favour of Baskaran absolutely. 12. Ex.A2 is the original settlement deed dated 15.03.1996. This has been executed by Dhanakkotti Ammal in favour of her son the first defendant Baskaran. The suit property is the absolute property of Dhanakkottai ammal, who has settled the property in favour of Baskaran absolutely. As per Ex.A1, Baskaran the first defendant had received totally a sum of Rs.10,00,000/- and agreed to sell the property to the plaintiff for a sum of Rs.11,00,000/-. The said sale agreement was duly registered as Doc.No.1041 of 2014 at Sub Registrar Office, Vellore. One of the attesting witnesses to the sale agreement is Jayalakshmi examined as PW-2. The due execution of the sale agreement has been spoken by her and being a registered document, the presumption in favour of the plaintiff has to be drawn. From the facts, the right of the third defendant as the minor son of Baskaran the first defendant to resist the execution of the sale agreement appears to be very weak. 13. The learned counsel pointing out that the name of the PW-2 is wrongly mentioned as Rajalakshmi in the judgment which indicate non application of mind. In view of this Court, it is only a typographical error not genuine to the case to hold non application of mind. 14. The other point which is canvassed is the limitation. From the recital of sale agreement though period for completing the contract fixed as 15 months, after paying the substantial sale consideration, the contention of the plaintiff that he was ready and willing to complete the contract by paying the balance sale consideration of Rs.1,00,000/- and met the first defendant for execution of the sale deed during the last week of April 2015 and on 29.04.2015, cannot be ignored in the absence of contra evidence. From Exs.A3 and A4, the plaintiff has proved that he was ready and willing to complete the contract and he has issued lawyer’s notice to the first defendant and the same was received by the first defendant but neither he has replied nor come forward to complete the contract. 15. From Exs.A3 and A4, the plaintiff has proved that he was ready and willing to complete the contract and he has issued lawyer’s notice to the first defendant and the same was received by the first defendant but neither he has replied nor come forward to complete the contract. 15. In respect of time as essence of contract, the Constitutional Bench of the Hon’ble Supreme Court in Chand Rani v. Kamal Rani reported in [ 1993(1) SCC 519 ] has outlined the principle as below:- It is a well accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language. 16. In Gomathinayagam Pillai v. Pallaniswami Nadar reported in [ 1967 (1) SCR 227 ], the Hon’ble Supreme Court has further held that, fixation of period within which the contract has to be performed, does not make the stipulation as to time the essence of the contract. Where the contract relates to sale of immovable property, it will normally be presumed that the time is not the essence of the contract. Normally, in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract, unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract. 17. In the instant case, there is no express terms of the contract or impliedly the intention of the parties to indicate that the time of 15 months is the essence of the contract. 18. 17. In the instant case, there is no express terms of the contract or impliedly the intention of the parties to indicate that the time of 15 months is the essence of the contract. 18. Section 54 of the Limitation Act, 1963 reads as below:- Description of suit Period of limitation Time from which period begins to run 54. For Specific Performance of a contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. 19. In this case, the refusal can be inferred from the silence of the first defendant, who has not responded to the pre-suit notice nor contested the suit. In the said circumstances, this Court is of the view that the finding of the trial Court has to be confirmed and the appeal to be dismissed as devoid of merit. 20. Accordingly, this Appeal Suit is dismissed. The judgment and decree of the Principal District Judge at Vellore made in O.S.No.66 of 2015 dated 10.07.2017 is hereby confirmed. No order as to costs. Consequently, connected miscellaneous petition is dismissed.