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2022 DIGILAW 1954 (MAD)

K. M. Aruchamy Thevar (died) v. N. Srinivas

2022-07-07

S.KANNAMMAL

body2022
JUDGMENT : (Common Prayer: Appeal Suits in A.S.Nos.392 and 393 of 2012 filed under Section 96 of the Code of Civil Procedure against the common judgment and decree, dated 29.11.2011, passed in O.S.Nos.163 of 2009 and 417 of 2011 respectively, on the file of the Additional District and Sessions Judge, Fast Track Court No. III, Coimbatore.) 1. These appeals have been filed against the common judgment and decree, dated 29.11.2011, passed in O.S.Nos.163 of 2009 and 417 of 2011 (erstwhile O.S.No.123 of 2007) respectively, on the file of the Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore. 2. O.S.No.163 of 2009 is the suit for specific performance filed by K.M.Aruchamy Thevar against N.Srinivas. O.S.No.417 of 2011 is the suit filed by N.Srinivas for return of original documents handed over by him to K.M.Aruchamy Thevar. The trial Court had dismissed the suit for specific performance and allowed the suit for return of documents, aggrieved by which, K.M.Aruchamy Thevar has filed the above appeals. 3. Pending the appeals, the sole appellant/K.M.Aruchamy Thevar died and his legal heir has been brought on record. 4. For the sake of convenience, the original appellant/K.M.Aruchamy Thevar shall hereinafter be referred to as “plaintiff” and the respondent herein/N.Srinivas shall hereinafter be referred to as “defendant”. 5. The case of the plaintiff in both the suits is as follows : *The defendant acquired the suit property through a registered Will, dated 10.07.1996, executed by his grandmother (Late) Sulachana Ammal. *The defendant offered to sell the suit property to the plaintiff and a sale agreement was executed between the plaintiff and the defendant on 09.03.2006 for a sale consideration of Rs.13,83,750/-. An advance amount of Rs.3,75,000/- was paid on the same day towards the sale consideration. *The period of performance was fixed as three months. It was also agreed that the defendant shall measure the suit property demarcate the land within the period of performance. *The plaintiff has always been ready and willing to pay the balance sale consideration and get the sale deed registered in his favour, however, the defendant kept on evading his performance. *The period of performance was fixed as three months. It was also agreed that the defendant shall measure the suit property demarcate the land within the period of performance. *The plaintiff has always been ready and willing to pay the balance sale consideration and get the sale deed registered in his favour, however, the defendant kept on evading his performance. *Thereafter, the plaintiff came to know of the fact that the defendant had already entered into a sale agreement with one S.C.Kanakarathinam in respect of the suit property vide registered sale agreement dated 06.12.2004 and when enquired, the defendant agreed to cancel the same and by a registered cancellation deed, dated 16.06.2006, the sale agreement with S.C.Kanakarathinam was cancelled by the defendant. *On 08.06.2006, the defendant received a further sum of Rs.3,30,000/- from the plaintiff to repay the amount received from one S.C.Kanakarathinam, with whom he had entered into a sale agreement earlier in respect of the suit property, and time period for performance of the suit agreement was extended by one month. An endorsement was made to that effect on the suit sale agreement itself. In order to support the time extension, the defendant handed over the original title documents in respect of the suit property to the plaintiff, on the said day itself. *The defendant did not inform the plaintiff about the earlier sale agreement with the said S.C.Kanakarathinam. *Totally, the defendant has received a sum of Rs.7,05,000/- as advance towards sale consideration. *However, in spite of repeated requests made by the plaintiff by showing his readiness and willingness to perform his part of the contract, the defendant did not come forward to receive the balance sale consideration and execute the sale deed in favour of the plaintiff. *Therefore, the plaintiff sent a legal notice on 02.01.2007. The defendant received the same on 09.01.2007, but did not send any reply. *Contrarily, the defendant sent a legal notice on 03.01.2007 for return of original documents, for which, the plaintiff sent his reply on 06.01.2007. *Thereafter, the defendant instituted a suit in O.S.No.123 of 2007 for return of original documents handed over to the plaintiff by the defendant on 08.06.2006. The plaintiff entered appearance in the said suit and contested the same. *Contrarily, the defendant sent a legal notice on 03.01.2007 for return of original documents, for which, the plaintiff sent his reply on 06.01.2007. *Thereafter, the defendant instituted a suit in O.S.No.123 of 2007 for return of original documents handed over to the plaintiff by the defendant on 08.06.2006. The plaintiff entered appearance in the said suit and contested the same. *Though the market value was revised by the Government, the plaintiff has been always ready and willing to purchase the suit property, as time was not the essence of the contract, but, it is the defendant who always evaded performance of the contract. *On 25.03.2009, the defendant attempted to dispose of the suit property to third parties at higher price and therefore, the plaintiff filed the suit for specific performance, with an alternative relief of refund of money with interest. 6. The case of the defendant in both the suits is as follows : *The defendant and the plaintiff entered into a sale agreement for sale of the suit property on 09.03.2006 for a sale consideration of Rs.13,83,750/-. A sum of Rs.3,75,000/- was received by the defendant from the plaintiff on the same day. *The time agreed for the completion of sale is three months from the date of agreement. *After repeated demands from the side of the defendant, on 08.06.2006, the plaintiff approached the defendant and expressed his inability to pay the remaining sale consideration and paid another Rs.3,30,000/- and at his instance, the time period for completion of sale was extended by one month, i.e., upto 08.07.2006. The defendant received the said amount of Rs.3,30,000/- and agreed to extend the time upto 08.07.2006 and an endorsement was made to that effect on the sale agreement itself. *The said amount of Rs.3,30,000/- received on 08.06.2006 was paid to S.C. Kanakarathinam, with whom, the defendant had earlier entered into sale agreement in respect of the suit property. The plaintiff was very well aware of the earlier sale agreement with the said S.C. Kanakarathinam, even before execution of the suit agreement. *On the same day, i.e., on 08.06.2006, the defendant handed over the original documents in respect of the suit property to the plaintiff. *The defendant was always ready and willing to execute the sale deed in favour of the plaintiff, however, the plaintiff did not come forward to pay the balance sale consideration. *On the same day, i.e., on 08.06.2006, the defendant handed over the original documents in respect of the suit property to the plaintiff. *The defendant was always ready and willing to execute the sale deed in favour of the plaintiff, however, the plaintiff did not come forward to pay the balance sale consideration. *Between 09.03.2006 and 08.06.2006, the defendant filed an application on 28.03.2006 to the Taluk Surveyor, Pollachi, and the Surveyor measured the suit property and the defendant also obtained encumbrance certificate over the suit property and handed over photocopies of the same to the plaintiff on two occasions. *Even though the defendant always showed his readiness and willingness to perform his part of the contract, the plaintiff did not come forward to pay the balance sale consideration within the time stipulated and therefore, the sale agreement got terminated on 08.07.2006 and from that date, there is no privity of contract between the defendant and the plaintiff. *The plaintiff has breached the contract and there is no fault on the part of the defendant. Since the prices of the land have also hiked owing to the revision of market value of the land by the Government in the year 2005-06, the plaintiff would not thereafter come forward to purchase the suit property from the defendant, therefore, the defendant caused a legal notice dated 03.01.2007 on the plaintiff, terminating the sale agreement and calling upon the plaintiff to return the original documents entrusted on him and also expressing the defendant's readiness and willingness to repay the advance amount without interest. *However, even before that, the plaintiff had caused a legal notice dated 02.01.2007 calling upon the defendant to perform his part of the contract and also make other false allegations and it was received by the defendant on 09.01.2007. *Therefore, the defendant filed the suit in O.S.No.123 of 2007 seeking mandatory injunction for return of original documents entrusted by the defendant on the plaintiff on 08.06.2006. The plaintiff contested the said suit in O.S.No.123 of 2007. *Later on, the plaintiff filed a suit in O.S.No.163 of 2009 for specific performance of the sale agreement dated 08.06.2006. However, there is no justification for the delay on the part of the plaintiff in filing the suit for specific performance after a long lapse of more than two years. The plaintiff contested the said suit in O.S.No.123 of 2007. *Later on, the plaintiff filed a suit in O.S.No.163 of 2009 for specific performance of the sale agreement dated 08.06.2006. However, there is no justification for the delay on the part of the plaintiff in filing the suit for specific performance after a long lapse of more than two years. *Though the defendant was always ready and willing to perform his part of the contract during the contract period, the plaintiff was not ready or willing to pay the balance sale consideration and perform his part of the contract. 7. On the above pleadings, the trial Court framed the following issues: O.S.No.163 of 2009 : 1. “Whether the defendant is bound to refund the advance amount of Rs.7,05,000/- to the plaintiff as per the sale agreement ? 2. Whether the plaintiff is entitled for the relief of permanent injunction? 3. To what other relief, the plaintiff is entitled to ?” O.S.No.417 of 2011 : 1. “Whether the defendant is liable to return the suit property documents to the plaintiff ? 2. Whether the plaintiff is entitled for a relief of mandatory injunction as prayed for ? 3. Whether the Court fee paid is not correct ? 4. To what other relief, the plaintiff is entitled to ?” 8. The plaintiff/K.M. Aruchamy Thevar examined himself as P.W.1 in O.S.No.163 of 2009 (D.W.1 in O.S.No.417 of 2011) and marked Exs.A1 to A12 (Exs.B1 to B12 in O.S.No.417 of 2011). The defendant/N. Srinivas examined himself as D.W.1 in O.S.No.163 of 2009 (P.W.1 in O.S.No.417 of 2011) and marked Exs.B1 to B6 (Exs.A1 to A6 in O.S.No.417 of 2011). 9. The trial Court, in its impugned judgment and decree, dated 29.11.2011, made the following observations : “23.But during argument a curious turn took place. The said turn took place during argument by plaintiff himself to the effect that the defendant is not having proper title over the second item of the suit property. The second item reads that within the total extent of 316 sq.ft., 158 sq.ft lies on the north of the first item. According to the plaintiff this property is the common property of the defendant and his paternal uncle, which was admitted by the defendant during evidence also. The second item reads that within the total extent of 316 sq.ft., 158 sq.ft lies on the north of the first item. According to the plaintiff this property is the common property of the defendant and his paternal uncle, which was admitted by the defendant during evidence also. Even in the will executed by his grand mother namely Sulochana common right was given to his paternal uncle as per the Will dated 10.07.1996. So according to the plaintiff the defendant is having only a common right over this area. He cannot convey the entire extent. The plaintiff would also take me through the averments in Exhibit A1 sale agreement. Wherein also the very same description of the property is mentioned. When common enjoyment is given the question of transferring a specific extent will not arise. So the defendant cannot transfer a title which he is not having absolutely. By raising such sort of plea it appears that the plaintiff has not pressed his main relief with regard to specific performance. 24.The question of specific performance will arise only when the plaintiff admits or accepts the title of the vendors. When the title itself is disputed then the question of specific performance cannot be pleaded and granted. So going by the argument on the side of the plaintiff I am of the view that the plaintiff has not pressed his relief with regard to the specific performance and so there is no need to frame any additional issues with regard to the main prayer. So also, we need not discuss much about the main relief. Suffice to discuss the alternative relief and refund of the advance amount paid under Exhibit A1. With this pre-note let us proceed to discuss the issues.” 10. It can be seen that the trial Court came to the conclusion that the plaintiff has not pressed the relief of specific performance and thereby, dismissed the relief of specific performance in O.S.No.163 of 2009, and on considering the oral and documentary evidence on record, decreed the alternative relief of refund of advance amount of Rs.7,05,000/- with interest @ 12% p.a. from 03.01.2007 till the date of decree and thereafter @ 6% p.a. till the date of realisation with costs and also decreed the suit in O.S.No.417 of 2011 without costs and ordered return of original documents (Exs.A2 to A5) to the defendant/N.Srinivas within a period of three months. 11. Challenging the common judgment and decree, dated 29.11.2011, passed by the trial Court, the plaintiff/K.M.Aruchamy Thevar has filed the above appeals. 12. The learned counsel for the appellant/plaintiff made the following submissions before this Court : *The trial Court has misconstrued the argument of the learned counsel for the plaintiff before the trial Court pertaining to common pathway's right and title of the defendant and in fact, it was explained during the course of arguments that the Will (Ex.A2) confers only usage right and not any absolute right. *The trial Court, having accepted the existence and execution of the sale agreement (Ex.A1) and having found the same as true, correct and genuine, cannot reject the prayer of specific performance. *The trial Court has not framed any issue with regard to the relief of specific performance and thereby, proceeded the case on a wrong footing from the beginning. *In fact, the common pathway right alone is defective and insofar as the other item is concerned, there is no defect in title and without using the common pathway, the suit property could very well be used, as it is adjacent to road. *The trial Court has not declared the sale agreement (Ex.A1) as void, therefore, rejection of relief of specific performance is not guided by judicial principles. *When it is not proved anywhere that time is the essence of the contract, there is no question of delay on the part of the plaintiff. *Therefore, the contract is still in force and the plaintiff has always been ready and willing to pay the balance sale consideration and get the sale deed executed in his favour, therefore, the plaintiff is entitled to the relief of specific performance. *By relying on the judgment of the Hon'ble Supreme Court in Motilal Jain v. Ramdasi Devi [ 2000 (6) SCC 420 ], the learned counsel submitted that, when the plaintiff has paid a substantial amount towards the sale consideration and has sent legal notices to the defendant showing his willingness and has also produced the property documents standing in his favour to show his financial capacity, the plaintiff is entitled to the relief of specific performance. *By replying upon the judgment of the Hon'ble Supreme Court in the case of Nirmala Anand v. Advent Corporation (P) Ltd. and others [ 2002 (8) SCC 146 ], the learned counsel submitted that, owing to the increase in the price of the land, the plaintiff is ready to pay additional amount also towards the purchase of the suit property. *By relying upon the judgment of the Hon'ble Supreme Court in the case of Beemaneni Maha Lakshmi v. Gangumalla Appa Rao [ 2019 (6) SCC 233 ], the learned counsel submitted that, when the defendant himself failed to perform his part of the contract by not measuring the suit property, it is unnecessary for the plaintiff to prove his financial capacity to pay the balance sale consideration. Therefore, the plaintiff cannot be found fault with. *By relying on the judgments of the Hon'ble Supreme Court in the case of Ferrodous Estates (Pvt.) Ltd. v. P.Gopirathnam (dead) & others [2020 SCC OnLine SC 825] and Sughar Singh v. Hari Singh (dead) through LRs & others [2021 SCC OnLine SC 975], the learned counsel submitted that the conduct of the defendant is also to be taken into consideration while deciding the suit for specific performance, and in the present case, the defendant has put forth a false case that he caused survey of the land using a Surveyor, which itself proves the dishonest conduct of the defendant. *The learned counsel concluded his arguments by submitting that the plaintiff has shown his continuous readiness and willingness to perform his part of the contract, hence, the suit for specific performance is liable to be decreed and the suit for return of documents is liable to be dismissed. 13. Per contra, the learned counsel for the respondent/defendant made the following submissions before this Court : *The plaintiff did not pay the balance sale consideration within the stipulated time, hence, the sale agreement stood cancelled. *The defendant has specifically sent a legal notice, dated 03.01.2007, terminating the sale agreement (Ex.A1), therefore, the suit for specific performance is not maintainable. 13. Per contra, the learned counsel for the respondent/defendant made the following submissions before this Court : *The plaintiff did not pay the balance sale consideration within the stipulated time, hence, the sale agreement stood cancelled. *The defendant has specifically sent a legal notice, dated 03.01.2007, terminating the sale agreement (Ex.A1), therefore, the suit for specific performance is not maintainable. *Though the suit has been filed within the period of limitation, the plaintiff has failed to show his continuous readiness and willingness to perform his part of the contract.*The plaintiff has sent the pre-suit notice on 02.01.2007, i.e., after a lapse of six months from the expiry of the time stipulated in the sale agreement, i.e., 08.07.2006, and moreover, the suit has been filed after an inordinate delay of more than two years, i.e., in the year 2009. *Since the earlier sale agreement with S.C.Kanakarathinam was cancelled as early as on 16.06.2006 and the said agreement was also handed over to the plaintiff, the defendant has cleared all the encumbrances over the suit property. *By relying upon the judgment of the Hon'ble Supreme Court in the case of Shenbagam and others v. KK Rathinavel [Civil Appeal No.150 of 2022, dated 20.01.2022], the learned counsel submitted that the foundation of a suit for specific performance lies in ascertaining whether the plaintiff has come to the Court with clean hands and has demonstrated that he has always been willing to perform the contract. However, in the case on hand, the plaintiff has grossly failed to prove either his readiness/financial capacity or his willingness to perform the contract. *When the plaintiff himself agreed before the trial Court that the defendant's title is imperfect and not pressed the relief of specific performance, the trial Court is right in rejecting the prayer for specific performance. *Since the defendant has terminated the contract vide his legal notice dated 03.01.2007, obviously he is entitled to the return of original documents from the plaintiff. *The terms of the contract (Ex.A1) are reciprocal in nature. Therefore, only upon the payment of full sale consideration, the question of measuring the property will arise. In this case, the plaintiff has not paid the balance amount within the time stipulated, hence, the termination notice was sent. So, there is no default on the part of the defendant. *The terms of the contract (Ex.A1) are reciprocal in nature. Therefore, only upon the payment of full sale consideration, the question of measuring the property will arise. In this case, the plaintiff has not paid the balance amount within the time stipulated, hence, the termination notice was sent. So, there is no default on the part of the defendant. *The learned counsel concluded his arguments by submitting that, though the defendant was always ready and willing to perform his part of the contract, the plaintiff evaded his part, therefore, the contract was terminated and hence, the judgment and decree of the trial Court ordering refund of advance amount and also return of original documents, does not warrant any interference by this Court. 14. This Court gave its anxious consideration to the rival submissions and also perused the entire materials available on record. 15. Admittedly, the plaintiff and the defendant have entered into a sale agreement, dated 09.03.2006, (Ex.A1) for sale of the suit property for a sale consideration of Rs.13,83,750/-. The receipt of advance amount of Rs.3,75,000/- on the same day, i.e., on 09.03.2006 is also admitted by the defendant. It is also admitted by both the parties that, on 08.06.2006, the time for performance was extended by one month and the defendant received a further sum of Rs.3,30,000/- from the plaintiff and the plaintiff received the original documents with regard to the suit property from the defendant. 16. Now, based on the rival submissions made before this Court, the following points arise for consideration : i. Whether the plaintiff has shown his readiness and willingness to perform his part of the contract ? ii. Whether the plaintiff is entitled to the relief of specific performance ? iii. Whether the defendant is entitled to the return of original documents ? iv. To what other relief, the parties are entitled to ? Point Nos.1 and 2 : 17. The suit in O.S.No.163 of 2009 has been filed by the plaintiff for the relief of specific performance of the sale agreement Ex.A1. While so, it is seen that the trial Court has arrived at a conclusion that the plaintiff has not pressed his prayer for specific performance in view of the submission made by the learned counsel for the plaintiff before the trial Court that the title of the defendant over the suit property is imperfect. 18. While so, it is seen that the trial Court has arrived at a conclusion that the plaintiff has not pressed his prayer for specific performance in view of the submission made by the learned counsel for the plaintiff before the trial Court that the title of the defendant over the suit property is imperfect. 18. However, the plaintiff has nowhere pleaded in the plaint about the alleged imperfect title of the defendant over the second item of the suit property. On the other hand, the plaintiff (P.W.1), in his proof affidavit, by referring to the entire schedule of suit property, has stated that the defendant is the absolute owner of the same. While that being the case, by relying on the argument of the learned counsel for the plaintiff that the defendant has only common rights over the second item of the suit agreement, the trial Court has concluded that the defendant cannot transfer a property for which he does not have absolute title. If that was the finding of the trial Court, the trial Court ought to have declared the sale agreement as unenforceable or void, before rejecting the prayer for specific performance. However, that has not been done. 19. So, now the question is whether the sale agreement can be declared as unenforceable or void. In the Will (Ex.A2), through which the defendant derives his title over the suit property, it is recited that the property mentioned in “D” schedule to the Will shall be bequeathed to the defendant/N.Srinivas. It is seen that the “D” Schedule consists of two items, wherein, the first item is the suit house and the second item is the pathway, which shall be used in common by the defendant and the son of the testator, namely, S.Krishnamoorthy. It is seen that the “D” Schedule consists of two items, wherein, the first item is the suit house and the second item is the pathway, which shall be used in common by the defendant and the son of the testator, namely, S.Krishnamoorthy. The defendant (D.W.1), in the cross-examination has deposed that he has not resided in the suit property; there is a 4 feet pathway between the suit property and his paternal uncle's property at the northern side; he has mentioned in the suit agreement as 2934 sq.ft and the common rights in the common pathway on the north of it; in the suit agreement, he has also conferred the passage rights to the plaintiff; he and his paternal uncle have mutually agreed that each can use 2 feet out of the said 4 feet pathway and on such understanding, they are in enjoyment of the same in common; he has agreed to sell only such a property in his enjoyment to the plaintiff. 20. From the recitals of the Will (Ex.A2) and the evidence of the defendant, it is clear that the defendant has usage rights over the common pathway and he is in enjoyment of the common pathway along with his paternal uncle and the defendant has intended to confer only such usage rights in the common pathway, along with the first item of property measuring 2934 sq.ft., to the plaintiff. Though the recitals or schedule to the sale agreement (Ex.A1) do not specifically clarify the same, that by itself will not render the sale agreement unenforceable or void, inasmuch as the same can be clarified at the time of execution of sale deed. Moreover, from Ex.A1, it can be noted that the sale consideration has been worked out only for 2934 sq.ft., (around 6.75 cents), i.e., first item of suit property alone, at the rate of Rs.2,05,000/- per cent, amounting to Rs.13,83,750/-, perhaps, knowing that the second item is only an usage right. Therefore, merely because the learned counsel for the plaintiff disputed the title of the defendant over the second item of the suit property, the trial Court ought not to have rejected the prayer for specific performance at the threshold itself. Therefore, the observations made by the trial Court in the impugned judgment in Para Nos.23 and 24 extracted supra alone, are liable to set aside. 21. Therefore, the observations made by the trial Court in the impugned judgment in Para Nos.23 and 24 extracted supra alone, are liable to set aside. 21. Now, coming to the question as to the readiness and willingness of the plaintiff, it is seen that the suit agreement (Ex.A1) was executed on 09.03.2006. In Ex.A1, it has been agreed that the plaintiff has to pay the balance sale consideration of Rs.10,08,750/- before 08.06.2006 and get the sale deed executed. Further, on the date of expiry of the agreement, i.e., on 08.06.2006, the time period of Ex.A1 has been extended by one month, i.e., upto 08.07.2006. The plaintiff (P.W.1) has admitted in the cross-examination that, after such extension, the time period for the sale agreement has expired on 08.07.2006. However, admittedly, the plaintiff has not paid the balance sale consideration before 08.07.2006. The reason put forth by the plaintiff for non-payment of the balance sale consideration is that the defendant did not measure the suit property as agreed in the sale agreement. The learned counsel for the plaintiff contended that they were concurrent promises and therefore, only when the defendant comes forward to measure the suit property, the plaintiff can pay the balance sale consideration, however, the defendant did not perform his part of the contract. 22. The relevant clause in Ex.A1 reads as follows : “OTHER LANGUAGE” 23. The above recital unambiguously states that, on payment of balance sale consideration by the plaintiff within the stipulated time period, the defendant, on receipt of the same, shall measure and demarcate the suit properties and execute the sale deed free of encumbrance in favour of the plaintiff or the person whom the plaintiff nominates. This is an example of mutual and dependent promises, where the plaintiff is under obligation to pay the balance sale consideration within the time period stipulated and only on receipt of the same, the defendant is obligated to measure the suit property. Therefore, until the plaintiff pays the balance sale consideration, the measurement of the suit property will not come into play. Therefore, until the plaintiff pays the balance sale consideration, the measurement of the suit property will not come into play. The judgment relied upon by the learned counsel for the plaintiff in this regard in the case of Beemaneni Maha Lakshmi v. Gangumalla Appa Rao (supra) cannot be applied to the present case for the reason that, in the said case, it was not specifically mentioned in the contract that the vendor has to first get the land measured and only thereafter, the vendee has to pay the balance sale consideration, however, the vendee was required to deposit the balance sale consideration within a stipulated time and further, the vendor admittedly agreed to get the land measured and to arrive at the consideration and to deliver the original sale deed. However, in the instant case, as extracted above, it is specifically mentioned in Ex.A1 that the plaintiff has to pay the balance sale consideration and only on receipt of the same, the defendant has to measure the suit property. Hence, the plaintiff cannot blame the defendant for his non-performance. 24. In Ex.A1, the time period for payment of balance sale consideration has been specified as three months, i.e., before 08.06.2006. The plaintiff has also admitted the same in his evidence. Further, on the date of expiry, i.e., on 08.06.2006, the parties have extended the time by one month, i.e., till 08.07.2006 for performance of the contract. Ex.A1 also contains clauses for forfeiture of advance amount and liberty to file suit for specific performance, if the respective parties fail to perform their part of the contract within the time stipulated therein. This itself shows that the parties were conscious of the time stipulated in the agreement. Though it is a broad principle that time is not the essence of contract involving immovable properties, the Hon'ble Supreme Court in the case of K.S.Vidyanadam and others v. Vairavan [ 1997 (1) CTC 628 ] has held that, Courts, while exercising discretion in suits for specific performance, should bear in mind that, when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored. But, the plaintiff has failed to perform his part of the contract before the stipulated time. 25. But, the plaintiff has failed to perform his part of the contract before the stipulated time. 25. The plaintiff has marked Exs.A10 to A12 to show his financial capacity to pay the balance sale consideration. Ex.A10 is a settlement deed, dated 29.05.1997, executed by the wife of the plaintiff in favour of the plaintiff in respect of a property worth Rs.10,000/-. Ex.A11 is a sale deed, dated 19.03.1988, in favour of the plaintiff in respect of a property worth Rs.50,000/-. Ex.A12 is a sale agreement, dated 16.07.2011, executed by the plaintiff and others in favour of third parties, which is much later from the relevant point of time. The documents produced on the side of the plaintiff do not satisfactorily prove that the plaintiff had the sufficient means to pay the balance sale consideration at the relevant point of time. 26. Even assuming for the sake of arguments that the plaintiff had sufficient means to pay the balance sale consideration, the plaintiff has not taken any steps to pay the same before the stipulated time as agreed, nor even has he called upon the defendant within the stipulated time to receive the balance sale consideration and execute the sale deed in his favour. Even the legal notice has been sent by the plaintiff only after a lapse of six months after the expiry of the sale agreement. Even after receipt of the legal notice from the defendant, dated 03.01.2007, and coming to know the mind of the defendant, the plaintiff has not filed the suit for specific performance immediately. Even in the written statement filed by the plaintiff in O.S.No.123 of 2007 (O.S.No.417 of 2011) on 18.07.2007, the plaintiff has stated that he is going to institute a suit for specific performance based on the sale agreement dated 09.03.2006. However, he has filed the suit for specific performance only after a lapse of more than two years, i.e., in March, 2009. 27. It is well settled that the plaintiff, who approaches the Court for the relief of specific performance of the contract, apart from anything, has to exclusively aver and prove his continuous readiness and willingness from the date of the contract till the hearing of the suit. 27. It is well settled that the plaintiff, who approaches the Court for the relief of specific performance of the contract, apart from anything, has to exclusively aver and prove his continuous readiness and willingness from the date of the contract till the hearing of the suit. Such a view been fortified by the Hon'ble Supreme Court time and again in various judgments including the ones relied upon by the learned counsel for the defendant supra, and more particularly in Saradamani Kandappan v. S.Rajalakshmi and others [2011 (4) CTC 140] and Padmakumari and others v. Dasayyan and others [2015 (6) CTC 545], wherein, the Hon'ble Supreme Court, while accepting the broad proposition of law that the time is not an essence of the contract in relation to contracts relating to immovable property, has upheld the dicta in K.S.Vidyanadam and others v. Vairavan (supra) and held that the plaintiff will have to show continuous readiness and willingness. If the plaintiff is shown to be not ready and willing even for a particular period, that by itself would be a ground to non-suit the plaintiff, particularly, in a suit for specific performance relating to land, where prices are always in the raise. Even though time is not essence of the contract in respect of the agreement for sale of immovable property, the plaintiff must exhibit readiness and willingness and approach the Court within a reasonable time. The period of 3 years prescribed under Article 54 of the Limitation Act is only an outer time limit and the plaintiff ought not to wait till the expiry of 3 years period to file the suit almost at the end of the term claiming that he is ready and willing to perform his part of the contract. 28. For all the above reasons, this Court finds that the plaintiff has not proved his readiness or willingness to perform his part of the contract (Ex.A1). Point No.1 is answered accordingly. 29. 28. For all the above reasons, this Court finds that the plaintiff has not proved his readiness or willingness to perform his part of the contract (Ex.A1). Point No.1 is answered accordingly. 29. The Hon'ble Supreme Court, in the case of Kamal Kumar (supra), has laid down the material questions which are required to be gone into for grant of relief of specific performance, which are as follows : “First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds.” 30. Having found that the plaintiff has not shown his continuous readiness and willingness to perform his part of the contract, which is a mandatory requirement for grant of relief of specific performance, as cited supra, this Court is not inclined to grant the relief of specific performance to the plaintiff and accordingly, the relief of specific performance is dismissed. Point No.2 is answered accordingly. Point Nos.3 and 4 : 31. Though this Court has found that the plaintiff is not entitled to the relief of specific performance, as the receipt of Rs.7,05,000/- by the defendant from the plaintiff has been admitted and the defendant had the benefit of money for all these years, the decree of the trial Court qua refund of advance amount of Rs.7,05,000/- with interest @ 12% from 03.01.2007 till date of decree and thereafter @ 6% till the date of realization, does not warrant any interference by this Court and the same is confirmed. Point No.4 is answered accordingly. 32. The plaintiff has admitted the receipt of original documents in respect of the suit property (Exs.A2 to A5) on 08.07.2006. Since this Court has found that the plaintiff is not entitled to the relief of specific performance of the sale agreement, dated 09.03.2006 (Ex.A1), the plaintiff cannot retain the said documents anymore and therefore, the decree of the trial Court qua return of original documents Exs.A2 to A5 to the defendant, is also confirmed. Point No.3 is answered accordingly. 33. In the result, the observations made by the trial Court in the impugned judgment in Para Nos.23 and 24 (extracted supra) alone are set aside and the rest of the judgment and the entire decree stand confirmed. Accordingly, the appeals are dismissed. No costs.