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2022 DIGILAW 1847 (MAD)

K. P. Shanmugam v. Mylathal

2022-06-30

P.T.ASHA

body2022
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgement and Decree dated 30.01.2019 made in A.S.No.76 of 2014 on the file of the Principal Subordinate Judge, Coimbatore, confirming the Judgement and Decree dated 20.06.2013 made in O.S.No.832 of 2007 on the file of the I Additional District Munsif, Coimbatore.) The unsuccessful defendant before the Courts below is the appellant before this Court. The suit in question is one seeking specific performance of an agreement of sale dated 12.10.2003. The facts in brief necessary for disposing of the above Second Appeal is herein below narrated. The parties are referred to in the same litigative status as before the Trial Court. 2. The suit schedule property originally belonged to the defendant. On 12.10.2003, the defendant had entered into an agreement of sale with the plaintiff promising to sell the suit property for a total sale consideration of Rs.30,600/-. On the date of the agreement, the defendant had received a sum of Rs.15,000/- as advance and the time for performance was fixed at 3 months from the date of the agreement. Thereafter, on 10.01.2004 the time was extended for a further period of three months and it was mentioned in the endorsement that the defendant would obtain the necessary approval from the Town Panchayat for selling the property considering the fact that the suit property is situate in an unapproved layout. Once again, on 08.04.2004 the parties have agreed for extension and a sum of Rs.500/- was paid by the plaintiff to the defendant. The agreement was extended by a further period of three months. The final extension was made on 12.07.2004, whereunder the time for performance was extended by a period of six months. 3. It is the case of the plaintiff that the defendant had agreed to get necessary approval from the Town Panchayat with respect to the property mentioned and since the defendant was not forthcoming with the approval, the plaintiff was unable to go ahead with the sale. The specific case of the plaintiff is that she is ready and willing from the date of the agreement to conclude the same and the same was awaiting the defendant getting the approval from the Town Panchayat and it was he who was postponing the execution of the sale deed. The specific case of the plaintiff is that she is ready and willing from the date of the agreement to conclude the same and the same was awaiting the defendant getting the approval from the Town Panchayat and it was he who was postponing the execution of the sale deed. The plaintiff had issued legal notice dated 22.03.2007 calling upon the defendant to execute the sale deed. 4. However, the defendant had sent a reply contending false and frivolous contentions and enclosing a demand draft constituting the advance amount. The defendant had contended that he was returning the advance amount since he was unable to get panchayat approval. Thereafter, the plaintiff had sent a rejoinder dated 05.04.2007 returning the demand draft and stating that she was willing to get property registered and get the panchayat approval at her risk. After receiving the rejoinder, the defendant did not come forward to execute the sale deed. Therefore, the plaintiff had filed the above suit on 12.04.2007. 5. The defendant had filed his written statement inter alia admitting that the parties had entered into an agreement of sale but however contended that the plaintiff was never ready and willing to proceed with the sale and further the plaintiff had no means to complete the sale agreement. Therefore, it is the contention of the defendant that the sale agreement had been cancelled and the claim is barred by limitation. 6. The learned I Additional District Munsif, Coimbatore framed the following issues: 1. Whether the plaintiff is entitled to specific performance as agreed by the 1 defendant on 12, 10. 2003 2. Whether the plaintiff is entitled for a decree as prayed by her? 3. To what other relief the plaintiff is entitled ?” 7. Though the Court had not framed any issues with reference to readiness and willingness there is a discussion about the same. The Trial Court had taken note of the fact that the suit has been filed by the plaintiff only after depositing the balance sale consideration. 3. To what other relief the plaintiff is entitled ?” 7. Though the Court had not framed any issues with reference to readiness and willingness there is a discussion about the same. The Trial Court had taken note of the fact that the suit has been filed by the plaintiff only after depositing the balance sale consideration. The Trial Court had also held that the readiness and willingness to perform the plaintiff-s part of the contract is evident from the fact that over 50% of the sale consideration had been paid by the plaintiff to the defendant and further the execution of the sale had been postponed only at the behest of the defendant as he was unable to get the approval of the Town Panchayat. The Trial Court had also held that the suit has been filed within the period of limitation. Ultimately, the Trial Court had decreed the suit. 8. Aggrieved by the said Judgement and Decree the defendant had filed A.S.No.76 of 2014 on the file of the Principal Subordinate Court, Coimbatore. The learned Principal Subordinate Judge, Coimbatore by his Judgement and Decree dated 30.01.2019 was pleased to dismiss the appeal and confirmed the Judgement and Decree of the Trial Court. 9. It is aggrieved by this concurrent Judgement and Decree that the defendant is before this Court. 10. The Second Appeal has been admitted on the following substantial questions of law: a) Whether the respondent proved readiness and willingness under Section 16 (c) of the Specific Reliefs Act, continuously throughout from the Sale Agreement dated 12.10.2003, Ex.A1 till filing of the suit; b) Whether the findings of the Courts below are perverse and failed to appreciate the oral and documentary evidences in a proper perspective?” 11. Mr.A.E.Ravichandran, learned counsel appearing on behalf of the appellant / defendant would contend that the agreement of sale had been executed on 12.10.2003. Thereafter, the agreement was extended on 10.01.2004 for a period of three months followed by another extension on 08.04.2004 for three months and ultimately an extension on 12.07.2004 for a period of six months. It is his contention that even after the last extension which came to an end on January 2005, the plaintiff has not taken any steps to get the sale deed executed. After the silence of 2 years, a legal notice has been issued on 22.03.2007. It is his contention that even after the last extension which came to an end on January 2005, the plaintiff has not taken any steps to get the sale deed executed. After the silence of 2 years, a legal notice has been issued on 22.03.2007. This, according to the learned counsel appearing for the defendant would amply demonstrate the fact that the plaintiff was not ready and willing to go ahead with the sale. The suit itself has been filed only on 12.04.2007. 12. He would rely upon the following Judgements in support of his argument that failure to establish the readiness and willingness would dis-entitle the plaintiff to get decree for specific performance: (i) 2008 (1) CTC 86 Sita Ram and others Vs. Radhey Shyam. (ii) 2009 (7) MLJ 1013 Shanthi Kawarbai and others Vs Sushila. (iii) CDJ 2021 MHC 3606 D.Chitra Vs. S.Subramaniam & others. 13. The learned counsel for the appellant / defendant would submit that the plaintiff has not been able to explain the delay from January 2005 till the issue of legal notice. According to him, the plaint is silent with reference to the above. Therefore, the learned counsel would submit that the concurrent Judgement and Decree deserved to be set aside. 14. Per contra, Mr.A.K.Kumarasmy, learned Senior counsel appearing on behalf of Mr.S.Arjun, learned counsel for the plaintiff / respondent would submit that the sale itself had been entered into on the express condition that the defendant should get approval from the Town Panchayat for the sale since the suit property is situate in the part of an unapproved layout. The endorsement in the reverse of the sale agreement would demonstrate this understanding between the parties. It is only in the reply notice dated 29.03.2007, the defendant had for the first time stated that it is impossible for him to obtain the approval and enclosing the demand draft for Rs.15,500/- constituting the advance paid by the plaintiff to the defendant. 15. The learned senior counsel would submit that immediately, the amounts have been sent back under the cover of the plaintiff-s rejoinder dated 05.04.2007. Therefore, the learned senior counsel would submit that the readiness and willingness has been proved. 16. Heard the learned counsels on the either side. 17. 15. The learned senior counsel would submit that immediately, the amounts have been sent back under the cover of the plaintiff-s rejoinder dated 05.04.2007. Therefore, the learned senior counsel would submit that the readiness and willingness has been proved. 16. Heard the learned counsels on the either side. 17. Admittedly, the agreement of sale stipulates a condition to be performed by the defendant, namely, obtaining the approval of the Town Panchayat for the sale of the property. On the side of the plaintiff the condition imposed is to pay the balance sale consideration as and when the approval is obtained. Though the agreement of sale does not stipulates the above, this condition has been incorporated in the extension dated 10.01.2004. This fact is reiterated in the endorsements made in 08.04.2004 as well as 12.07.2004. 18. The plaintiff in her pleadings has clearly stated that the time had been extended only for the purpose of getting necessary approval from the panchayat and since the approval was not obtained the sale could not be executed. Therefore, the plaintiff has very clearly averred and proved her readiness and willingness to proceed with the agreement of sale. The plaintiff-s intention is further manifested by her depositing entire balance sale consideration to the credit of the suit O.S.No.832 of 2007. The conduct of the plaintiff has sufficient compliance of the provisions of Section 16 (c) of the Specific Relief Act. In the Judgement relied upon by the learned counsel for the defendant, 2008 1 CTC 86 Sita Ram and others Vs. Radhey Shyam, the Hon-ble Supreme Court has stated as follows: 10. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief” 19. In the instant case the conduct of the plaintiff is to a very great extent blemish less and it is only the defendant who has failed to perform his part of the contract, which is the main condition of the sale. In the instant case the conduct of the plaintiff is to a very great extent blemish less and it is only the defendant who has failed to perform his part of the contract, which is the main condition of the sale. When the plaintiff had come to know that the defendant would not be able to get approval, she has undertaken to get the approval after the sale is effected in her name. 20. The reference to the Judgement in CDJ 2021 MHC 3606 D.Chitra Versus Vs. S.Subramaniam and others may not be of any assistance to the defendant since the facts contained therein are totally different to the facts of the case on hand. As already submitted, the plaintiff has proved her readiness and willingness as stipulated under the provisions of Section 16 (c) of the Specific Relief Act. Therefore, the Substantial Questions of law are answered against the appellant. 21. In the result, the Second Appeal stands dismissed. Consequently, connected Civil Miscellaneous Petition is closed. However, there shall be no order as to costs.