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2021 DIGILAW 2264 (MAD)

S. Subramaniam v. R. N. Govindaraj

2021-09-03

P.T.ASHA

body2021
JUDGMENT : P.T. ASHA, J. Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure against the Judgment and Decree of the learned IV Additional District and Sessions Judge of Coimbatore dated 06.03.2020 in O.S. No. 604 of 2018. 1. This First Appeal is filed challenging the Judgment and Decree of the IV Additional District and Sessions Judge, Coimbatore in O.S. No. 604 of 2018. The plaintiff is the appellant before this Court. The suit in question is one for specific performance of an agreement of sale dated 04.11.2016. Plaintiff’s case: 2. The plaintiff has filed the above suit seeking specific performance of an agreement of sale entered into between him and the defendant. The plaintiff would contend that he had entered into the sale agreement dated 04.11.2016 in respect of the suit scheduled property for a total sale consideration of Rs. 20,00,000/-. On the date of the agreement of sale a sum of Rs. 5,00,000/- was paid as an advance and the parties had decided to complete the transaction within a period of six months. 3. The plaintiff would submit that he had been ready and willing from the date of the agreement. He would further contend that as per terms of the contract the defendant had to measure and demarcate the boundaries of the suit property and hand over a rough sketch plan in respect of the same. Since the defendant was unable to do so he had requested that the sale agreement be extended for a further period of six months. Therefore, parties have entered into an extension deed dated 02.05.2017, as per the terms of which the agreement had to be concluded within six months i.e. on or before 02.11.2017. 4. The plaintiff would contend that even after such extension the defendant was not willing to go forward with the agreement of sale which constrained the plaintiff to issue a legal notice dated 26.06.2018. The defendant who received the said notice had issued a reply dated 07.07.2018 making false allegations. Therefore, the plaintiff has come forward with the suit for specific performance failing which for an alternate relief of refund of advance amount. 5. The defendant had remained ex-pare. 6. The Trial Court without framing issues had however framed a points for consideration as to whether the plaintiff was entitled to the relief as asked for? 7. Therefore, the plaintiff has come forward with the suit for specific performance failing which for an alternate relief of refund of advance amount. 5. The defendant had remained ex-pare. 6. The Trial Court without framing issues had however framed a points for consideration as to whether the plaintiff was entitled to the relief as asked for? 7. The plaintiff had examined himself as PW-1 and one Muthusamy as PW-2. The plaintiff had marked Ex.A.1 to Ex.A.9 through PW-1 and Ex.A.10 through the 2nd witness, PW-2, who was the attestator to the sale agreement. 8. The learned Trial Judge on considering the evidence both oral and documentary dismissed the suit on the ground that the plaintiff who had proved his readiness had however not proved his willingness and therefore was not entitled to the discretionary relief for specific performance. The learned Judge ordered the alternate relief. Challenging this Judgment and Decree the plaintiff is before this Court. 9. After hearing the submissions of the learned counsel, following points for consideration arise: (i) Whether the time was essence of the contract? (ii) Whether the plaintiff has proved his readiness and willingness throughout? (iii) Whether the Judgment of the Trial Court requires reconsideration? 10. Heard the learned counsel for the appellant/plaintiff and perused the records of the Trial Court. 11. The case of the plaintiff is that he and the defendant had entered into an agreement of sale dated 04.11.2016 marked as Ex.A.1. The total sale consideration fixed was a sum of Rs. 20,00,000/- and the time for performance was fixed at six months and an advance of Rs. 5,00,000/- has been paid on the date of the agreement of sale. Though the plaintiff was ready and willing with his part of obligation, the defendant had not complied with his obligation as per terms of Ex.A.1 and therefore both the parties had entered into an extension deed dated 02.05.2017 marked as Ex.A.2. As per terms of Ex.A.2, the transaction had to be concluded on or before 02.11.2017. 12. Even after the extension deed the defendant has not come forward to complete his obligations and Ex.A.3 legal notice dated 26.06.2018 came to be issued by the plaintiff. To this notice, the defendant has issued a reply notice dated 07.07.2018 marked as Ex.A.5. To prove his readiness and willingness, the plaintiff has marked Ex.A.7 to Ex.A.9. 13. 12. Even after the extension deed the defendant has not come forward to complete his obligations and Ex.A.3 legal notice dated 26.06.2018 came to be issued by the plaintiff. To this notice, the defendant has issued a reply notice dated 07.07.2018 marked as Ex.A.5. To prove his readiness and willingness, the plaintiff has marked Ex.A.7 to Ex.A.9. 13. A perusal of Ex.A.1 would indicate that the obligation imposed on the defendant is morefully set out in clause-3 thereunder which translated from the vernacular would read as follows: The defendant shall pay all the public dues till the date of the sale without leaving any arrears and he shall handover the original sale deed and documents of title one week prior to the lapse of the six months period by handing it over to the plaintiff and keeping necessary acknowledgments. Further, the defendant was to measure and demarcate this property in the presence of the plaintiff and handover a rough sketch of the same. 14. A reading of Ex.A.2 would show that since the defendant was unable to comply with this obligation he had requested an extension of time and accordingly the parties had entered into this deed i.e. Ex.A.2. 15. A perusal of Ex.A.5 reply notice issued by the defendant’s counsel to the plaintiff’s counsel dated 07.07.2018 shows that this obligation has been performed by the defendant. In paragraph no. 7 of the said document the defendant has stated as follows: “TAMIL” This statement has not been refuted by the plaintiff either by sending rejoinder or by countering it in the plaint. 16. In fact in his plaint the plaintiff has only made the following pleading with reference to this document: “TAMIL” 17. Therefore, from this document it is clear that the plaintiff despite being informed by the defendant that he has complied with his part of the obligation, the plaintiff has not come forward to have the sale deed executed. No doubt, in the instant case time is not the essence of the contract since the parties have consented to have the sale deed extended. However, once the reason for the extension has been complied with the plaintiff is bound to complete the transaction which would show that the plaintiff is ready and willing to proceed to comply with his part of the obligation. However, once the reason for the extension has been complied with the plaintiff is bound to complete the transaction which would show that the plaintiff is ready and willing to proceed to comply with his part of the obligation. The plaintiff has failed to prove his readiness and willingness to proceed with the sale deed. 18. Further, though the Trial Court has held that the plaintiff has proved his readiness and willingness, however, a perusal of Ex.A.7 to Ex.A.9 would indicate that these documents are all post of December 2017 and there is no documents filed on the side of the plaintiff to prove their readiness (Financial Capacity) from the date of the agreement of sale to the date of the filing of the suit. 19. Therefore, the plaintiff by failing to prove their wherewithal and also not taking up the defendant on their offer has clearly proved that he is neither ready nor willing to proceed with the agreement of sale. Therefore, the findings of the Trial Court appears to be in line with the evidence adduced and does not require any reconsideration on the part of this Court. 20. In fine, the Appeal Suit is dismissed. However, there shall be no order as to costs.