JUDGMENT (Prayer: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.27 of 1999 on the file of the Principal District Judge, Vellore, confirming the judgment and decree made in O.S.No.137 of 1986 dated 30.11.1998 on the file of the Sub Court, Vellore.) 1. The 6th defendant in O.S. No. 137 of 1986 on the file of the Sub Court, Vellore is the appellant herein. 2. O.S. No. 137 of 1986 had been filed by G.R. Ethiraj, whose legal representatives are the 3rd to 7th respondents in the second appeal, originally against Padmavathi Ammal, who died pending the suit and whose legal representatives had been impleaded as 4th and 5th defendants, Amsaveni and Saroja, the 1st and 2nd respondents in the second appeal, and against T.M. Govindasami Mudaliar, who also died pending the suit, without leaving behind any legal representative and against T.M. Thiruvengada Mudaliar, whose wife was later impleaded as the 6th defendant, the appellant herein, seeking performance of an agreement of sale dated 06.06.1983 with respect to the property described in the ‘A’ Schedule to the plaintiff, namely, 2.56 ¾ acres of land in S. Nos. 714/59, 714/51 and 714./46 in Katpadi, Vellore District. 3. By judgment dated 30.11.1998, the learned Sub Judge, Vellore, decreed the suit, but without costs, and directed specific performance of the agreement by the defendants by executing sale deed in favour of the plaintiff within a period of two months, and further directed the plaintiff to deposit the balance sale consideration within one month. 4. The 6th defendant, Janakiammal/appellant in the second appeal, then filed A.S. No. 27 of 1999 before the Principal District Court, Vellore. The plaintiff, G.R. Ethiraj, filed a cross appeal against denial of costs being granted. During the pendency of the appeal suit, the plaintiff, G.R. Ethiraj died and his legal representatives had been brought on record. By judgment dated 21.12.2001, the learned Principal District Judge, Vellore, dismissed the appeal suit with costs, and confirmed the decree passed in O.S. No. 137 of 1986. The cross appeal was also allowed. 5. Questioning the said judgment, the 6th defendant Janakiammal then filed the present second appeal. Pending the appeal, she died and her legal representative had been impleaded as the 2nd appellant. The 2nd respondent, Saroja, who was the 5th defendant in the suit also died. The cross appeal was also allowed. 5. Questioning the said judgment, the 6th defendant Janakiammal then filed the present second appeal. Pending the appeal, she died and her legal representative had been impleaded as the 2nd appellant. The 2nd respondent, Saroja, who was the 5th defendant in the suit also died. By a memo06.07.2018, she was given up, but later by order dated 02.08.2019, that was withdrawn. The second appeal had been admitted on the following substantial questions of law: “1. When time was stipulated in the original agreement for enforcement of contract, still is the learned Principal District Judge right in holding that time is not the essence of the contract ? 2. Whether the plaintiff was ready and willing to perform his part of the contract when admittedly the agreement came to be executed in 1983 and the payment was made in court in 1998 after the grant of decree ? and 3. When the plaintiff became a power agent of the plaintiff subsequent to the execution of the agreement of sale, is the learned Judge right in holding that the agreement of sale is still subsisting ?” O.S. No. 137 of 1986 (Sub Court, Vellore): 6. The suit had been filed for specific performance of an agreement of sale dated 06.06.1983 entered into by the 1st defendant with the plaintiff, with respect to the vacant lands measuring 2.56 ¾ acres of land in S. Nos. 714/59, 714/51 and 714./46 in Katpadi, Vellore District. The plaintiff claimed that the defendants were the owners of the lands. The total consideration was determined at Rs.96,375/- and an advance of Rs.6,000/- had been paid. The balance had to be paid within 9 months, on or before 06.03.1984. It was however claimed by the plaintiff that time was not the essence of the agreement. It was further stated that the parent title documents of the property were also handed over to the plaintiff. On 08.06.1983, the plaintiff was also appointed as a power of attorney of the 1st defendant, with permission to form a layout and sell the plots to third parties. 7. The 1st defendant issued a legal notice on 21.12.1984 that the power of attorney had been cancelled by a registered revocation deed. 8. On 08.06.1983, the plaintiff was also appointed as a power of attorney of the 1st defendant, with permission to form a layout and sell the plots to third parties. 7. The 1st defendant issued a legal notice on 21.12.1984 that the power of attorney had been cancelled by a registered revocation deed. 8. The plaintiff claimed that the 1st defendant had also agreed to purchase a strip of land for access to the suit property, which agreement also the 1st defendant had not performed. The plaintiff claimed that he was always ready and willing to perform his part of the agreement, and sought a decree for specific performance. 9. In her written statement, the 1st defendant asserted her exclusive title to the suit property. She claimed that she wanted to sell the same as plots, and that was the focal point for entering into an agreement with the plaintiff. She further claimed that the plaintiff never evinced any interest in performing his part of the agreement. She had also appointed him as her power of attorney agent. In view of his attitude, she revoked the power and sent a legal notice terminating the agreement. She claimed that the plaintiff was never ready or willing to perform his part of the agreement. She therefore sought dismissal of the suit. 10. During the pendency of the suit, the 1st defendant died and the 4th, 5th and 6th defendants were impleaded as further defendants. 11. On the basis of the pleadings, the following issues were framed for trial: “1. Whether the 2nd and 3rd defendants had title over the suit property? 2. Whether the agreement of sale is true and enforceable? 3. Whether the agreement was entered for the purpose as stated by the 1st defendant? 4. Whether the agreement stood cancelled? 5. Whether the plaintiff was always ready and willing to perform his part of the agreement? 6. To what reliefs are the parties entitled to ?” 12. During trial, the plaintiff examined himself as P.W.1 and examined another witness as P.W.2. He also marked Exs. A1 to A18. Ex. A1, dated 06.06.1983 was the agreement of sale. Exs. A2 to A5 were the title deeds of the property. Ex. A6, dated 08.06.1983 was the power of attorney in favour of the plaintiff. Exs. A8 to A17 were the endorsements in the agreement for receipt of further advance amounts. Ex. He also marked Exs. A1 to A18. Ex. A1, dated 06.06.1983 was the agreement of sale. Exs. A2 to A5 were the title deeds of the property. Ex. A6, dated 08.06.1983 was the power of attorney in favour of the plaintiff. Exs. A8 to A17 were the endorsements in the agreement for receipt of further advance amounts. Ex. A18 was the notice issued by the 1st defendant indicating cancellation of the power of attorney. The defendants did not examine any witness. They did not produce any documents. 13. In his judgment dated 30.11.1998, the learned Sub Judge observed that Ex. A1 had not been denied and that it was the power of attorney which had been cancelled and not the agreement. It was stated that time was not the essence of the agreement. The endorsements in the agreement were noted and it was held that the plaintiff was ready and willing to perform his part of the agreement. The suit was therefore decreed and the defendants were called upon to execute the sale deed on deposit of the balance sale consideration by the plaintiff. A.S. No. 27 od 1999 (Principal District Court, Vellore): 14. The 6th defendant filed the appeal. The plaintiff filed a cross appeal, questioning non awarding of costs. The learned Principal District reappraised the evidence and confirmed the finding of the trial court with respect to the enforceability of the agreement and that the plaintiff was ready and willing to perform his part of the agreement. Holding that the cancellation of the power of attorney had not affected the agreement between the parties, the appellate court also directed specific performance and also granted costs to the plaintiff. The appeal suit was dismissed. The cross appeal was allowed. Second Appeal No. 1766 of 2002: 15. The second appeal had been admitted on the following substantial questions of law: “1. When time was stipulated in the original agreement for enforcement of contract, still is the learned Principal District Judge right in holding that time is not the essence of the contract ? 2. Whether the plaintiff was ready and willing to perform his part of the contract when admittedly the agreement came to be executed in 1983 and the payment was made in court in 1998 after the grant of decree ? and 3. 2. Whether the plaintiff was ready and willing to perform his part of the contract when admittedly the agreement came to be executed in 1983 and the payment was made in court in 1998 after the grant of decree ? and 3. When the plaintiff became a power agent of the plaintiff subsequent to the execution of the agreement of sale, is the learned Judge right in holding that the agreement of sale is still subsisting ?” 16. All the three substantial questions of law revolve around facts and law. They are also intricately interconnected. There is an errata in the third substantial question of law. The plaintiff was the power of attorney agent of the 1st defendant and not plaintiff as had been wrongly given. 17. It would be convenient to refer the parties with the same nomenclature as in the original suit. The appellant herein was the 6th defendant/legatee of the 1st defendant. The contesting respondents are the legal representatives of the plaintiff. Since the primary parties to Exs. A1 and A6 were the 1st defendant and the plaintiff, I would continue to address them as such. 18. The first substantial question of law requires discussion on the fact whether the parties had specifically agreed that time was to be the essence of the agreement. The second question of law again revolves around the fact of payment of consideration, and whether the plaintiff can be categorized as being ready and willing to partake with balance sale consideration. The third substantial question of law revolves around the object of the agreement, whether it was a one-to-one agreement or whether the plaintiff was required to form a layout and further deal with the property as smaller plots. 19. All the three substantial questions of law require examination of the agreement between the parties, Ex. A1 and the power of attorney granted to the plaintiff, Ex. A6. They are taken up for consideration together. 20. The facts are quite straightforward and direct. 21. The 1st defendant was the owner of the suit schedule property, which were lands measuring 2.56 ¾ acres of vacant land. The 2nd and 3rd defendants were her brothers. They had released their share in favour of the plaintiff, by Ex. A5. They do not claim title, but have received portions of the balance sale consideration from the plaintiff as evidenced by the endorsements in Exs. The 2nd and 3rd defendants were her brothers. They had released their share in favour of the plaintiff, by Ex. A5. They do not claim title, but have received portions of the balance sale consideration from the plaintiff as evidenced by the endorsements in Exs. A8 to A17. The 6th defendant/appellant before the first appellate court and before this court was the wife of the 3rd defendant and claimed right owing to a will said to have been executed by the 1st defendant in her favour. 22. Ex. A1 was dated 06.06.1983. It is neither denied nor disputed. The sale consideration is not disputed. The payment of advance sale consideration or the payment of portions of balance sale consideration to the 2nd and 3rd defendants and the endorsements, Exs. A8 to A17 are also neither denied nor disputed. 23. Execution of Ex. A6, power of attorney is again neither denied nor disputed. Power was granted to the plaintiff to form a layout and divide the land into plots and sell them to prospective purchasers. 24. There is however a dispute about the object of the agreement. 25. It is the contention of the appellant/6th defendant herein that the agreement had been entered into only for the specific purpose of dividing the lands into plots and sell them to prospective buyers. 26. A reading of Ex. A1 is indicative of that intent. The 1st defendant had permitted the plaintiff to divide the lands into plots and had agreed to execute sale deeds for such smaller plots in favour of the prospective purchasers as identified by the plaintiff. 27. Ex. A1 was entered into on 06.06.1983. Ex. A6 was registered on 08.06.1983, within two days. A carte blanche had been given to the plaintiff to proceed further to divide the lands into plots and sell them. That was the object of the agreement. 28. The plaintiff had to perform his part of the agreement, namely to form a layout, divide the lands into plots and sell them to prospective purchasers. This obligation has superimposed the normal object of payment of balance sale consideration as is the expectation in a one-to-one agreement of sale. 29. The substantial questions of law must be addressed when viewed from this angle. 30. This obligation has superimposed the normal object of payment of balance sale consideration as is the expectation in a one-to-one agreement of sale. 29. The substantial questions of law must be addressed when viewed from this angle. 30. In Chand Rani v. Kamal Rani, (1993) 1 SCC 519 : AIR SC 1742, a Constitution Bench of the Hon’ble Supreme Court, while examining whether time could termed as an essence of an agreement of sale with respect to immovable property had stated as follows: “25. From an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: 1. From the express terms of the contract; 2. from the nature of the property; and 3. from the surrounding circumstances, for example: the object of making the contract.” 31. Thus each agreement will have to be examined, keeping in mind the object of that particular agreement. 32. In the instant case, the parties had entered into Ex. A1 and the 1st defendant had subsequently executed Ex. A6, power of attorney, only to subdivide the lands into plots and to market them to prospective purchasers. The plaintiff had to thus carry out that object. If he fails to perform that object, the revocation of the power of attorney by the 1st defendant can be termed as a normal consequence. 33. Thus enforceability or otherwise of the agreement would not depend on just payment of balance sale consideration, but in the plaintiff ensuring that the lands are actually sub-divided and sold. That was the object. 34. The agreement provided a time period of nine months for the plaintiff to perform that object. The plaintiff has not pleaded and has not let in any evidence to show that he has taken steps to perform that part of the agreement. Ex. A7, a layout plan, produced by the plaintiff would not come to the rescue of the plaintiff. It can be at best, termed as a lame attempt to convince that he had actually taken such a step. 35. There are no pleadings with respect to actual sub-division or identification of purchasers. 36. By Ex. Ex. A7, a layout plan, produced by the plaintiff would not come to the rescue of the plaintiff. It can be at best, termed as a lame attempt to convince that he had actually taken such a step. 35. There are no pleadings with respect to actual sub-division or identification of purchasers. 36. By Ex. 18, advocate notice dated 21.12.1984, the plaintiff was put on notice that the power of attorney, Ex. A6 had been revoked by another registered document. 37. Both the courts have interpreted this revocation as being of no value, and that the agreement still subsisted and granted specific performance. 38. This provision which has been introduced by the Amendment ct to the Specific Relief Act, 1963 is however the law of the land. 39. In Sushil Kumar Agarwal v. Meenakshi Sadhu, (2019) 2 SCC 241 , the Hon’ble Supreme Court had occasion to examine this provision albeit with respect to a development agreement. The reasonings hold for an agreement for work on land also. “11. The issue which has been raised before this Court is whether Section 14(3)(c) of the Act is a bar to a suit by a developer for specific performance of a development agreement between himself and the owner of the property. In dealing with this issue, the court needs to assess whether the word “defendant” in Section 14(3)(c)(iii) has the effect of confining the scope of the suit for specific performance only to a particular class (consisting of owners) or whether a purposive interpretation to the legislation would be required, so as to provide a broader set of remedies to both owners and developers. In deciding this issue the court will need to scrutinise the nature of a development agreement. 12. Section 14 provides thus: “14. Contracts not specifically enforceable.—(1) The following contracts cannot be specifically enforced, namely— (a) a contract for the non-performance of which compensation in money is an adequate relief; (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) a contract which is in its nature determinable; (d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise. (2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit. (3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases— (a) where the suit is for the enforcement of a contract— (i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once: Provided that where only a part of the loan has been advanced and the lender is willing to advance the remaining part of the loan in terms of the contract; or (ii) to take up and pay for any debentures of a company; (b) where the suit is for— (i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or (ii) the purchase of a share of a partner in a firm; (c) where the suit is for the enforcement of contract for the construction of any building or the execution of any other work on land: Provided that the following conditions are fulfilled, namely— (i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work; (ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for nonperformance of the contract is not an adequate relief; and (iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.” Section 14(1) provides categories of contracts which are not specifically enforceable. Sub-section (3) of Section 14 is an exception to clauses (a), (c) and (d) of sub-section (1). Sub-section (3) of Section 14 is an exception to clauses (a), (c) and (d) of sub-section (1). Though the species of contract stipulated in clauses (a), (c) and (d) of sub-section (1) cannot be specifically enforced, a suit for specific performance of contracts of that description will be maintainable if the conditions set out in sub-clauses (i), (ii) and (iii) of clause (c) of Section 14(3) are satisfied. ………… 24. Various High Courts have interpreted the requirements under Section 14(3)(c) of the Act and opined on the maintainability of a suit by the developer for specific performance against the owner of the property for a breach in the conditions of the development agreement. A common thread that runs through the analysis in decided cases is the following: 24.1. The courts do not normally order specific performance of a contract to build or repair. But this rule is subject to important exceptions, and a decree for specific performance of a contract to build will be made only upon meeting the requirements under law; 24.2. The discretion to grant specific performance is not arbitrary or capricious but judicious; it is to be exercised on settled principles; the conduct of the plaintiff, such as delay, acquiescence, breach or some other circumstances outside the contract, may render it inequitable to enforce it; 24.3. In order to determine the exact nature of the agreement signed between the parties, the intent of the parties has to be construed by reading the agreement as a whole in order to determine whether it is an agreement simpliciter for construction or an agreement that also creates an interest for the builder in the property. Where under a development agreement, the developer has an interest in land, it would be difficult to hold that such an agreement is not capable of being specifically enforced; and 24.4. A decree for specific performance of a contract to build will be made if the following conditions are fulfilled: 24.4.1. the work of construction should be described in the contract in a sufficiently precise manner in order for the court to determine the exact nature of the building or work; 24.4.2. the plaintiff must have a substantial interest in the performance of the contract and the interest should be of such a nature that compensation in money for nonperformance of the contract is not an adequate relief; and 24.4.3. the plaintiff must have a substantial interest in the performance of the contract and the interest should be of such a nature that compensation in money for nonperformance of the contract is not an adequate relief; and 24.4.3. the defendant should have, by virtue of the agreement, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.” 40. The principle laid down is that the conduct of the plaintiff, such as delay, acquiescence, breach or some other circumstances outside the contract, may render it inequitable to enforce it; 41. In the instant case, the plaintiff had not taken even a baby step towards sub-dividing the lands into plots and in identifying purchasers. That is the primary object of the agreement between the parties. Making a few further payments will not absolve the plaintiff of performance of this object. Both the courts below have thus mis-directed themselves as to the object of the agreement. 42. The agreement is the fulcrum in the relationship between the parties. That agreement will have to be examined to determine whether to grant specific performance. 43. The first substantial question of law is thus answered that though time, in general is not the essence of an agreement with respect to immoveable property, in the instant case, since there was an obligation on the plaintiff to form a layout, divide the land into plots and negotiate their sale, and since the power to act as agent of the 1st defendant had been revoked, the 1st defendant was justified in holding that time was the essence of the contract. 44. The second substantial question of law pales into insignificance, since the object was never to sell the lands to the plaintiff, but rather to the nominees indicated by him, after sub-dividing the land into smaller plots. Since the plaintiff had not performed his part of the agreement, he cannot claim innocence and seek indulgence of the court to grant specific performance. 45. The third substantial question of law is answered that the plaintiff having not performed his part of the agreement, and his power having been revoked, the agreement has become frustrated and thus, both the courts below were wrong in directing specific performance by holding that the agreement subsists. 46. 45. The third substantial question of law is answered that the plaintiff having not performed his part of the agreement, and his power having been revoked, the agreement has become frustrated and thus, both the courts below were wrong in directing specific performance by holding that the agreement subsists. 46. In the result, the judgments and decrees in O.S. No. 137 of 1986, dated 30.11.1998 passed by the Sub Court Vellore and in A.S. No. 27 of 1999, dated 21.12.2001, passed by the Principal District Court, Vellore are both set aside and the suit in O.S. No. 137 of 1986 stands dismissed. 47. The second appeal is allowed with costs.