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2022 DIGILAW 485 (MAD)

T. Palanisamy v. M. Varadarajan

2022-02-24

G.JAYACHANDRAN

body2022
JUDGMENT : G. JAYACHANDRAN, J. Prayer: Appeal Suit has been filed under Section 96 of the Civil Procedure Code against the judgment and decree dated 16.07.2014 passed in O.S. No. 587 of 2011 by the learned III Additional District and Sessions Judge, Coimbatore. 1. Appeal suit is preferred by the unsuccessful plaintiff who laid the suit for specific performance. 2. According to the plaintiff, he entered into a sale agreement with the defendant in respect of the suit property on 25.09.2008 for a total sale consideration of Rs. 16,00,000/- and advanced Rs. 2,00,000/-. As per the unregistered written sale agreement, the parties have agreed to complete the sale transaction within a period of three months from the date of the agreement. However, time was not essence of the contract. When the plaintiff expressed his readiness to complete the contract and sought for the original documents and encumbrance certificate, the defendant delayed and denied the production of the original documents and the encumbrance certificate. He was postponing the registration under some pretext or another. Therefore, the plaintiff issued a notice on 18.12.2008 before the expiry of the three months period. Calling upon to honour the agreement, the defendant receive the notice but gave a belated reply on 23.12.2008 with false averments and therefore, the suit was filed for specific performance to enforce the terms of the contract dated 25.09.2008. 3. The plaintiff had specifically contended that he has always been ready and willing to perform his part of contract and breach is caused only by the defendant, who has not come forward to execute the sale deed receiving the balance sale consideration. 4. The suit was contested by the defendant by filing a written statement wherein he has denied the averments made in the plaint. According to the defendant, the sale agreement dated 25.09.2008 was entered with the plaintiff with a specific understanding that the time will be the essence of the contract. While so, the plaintiff, who was not ready with the sale consideration, was postponing the payment of the balance consideration on the pretext that he is making arrangement for loan to complete the transaction. Ultimately, his attempt to get loan did not materialise and therefore, he could not complete the contract within the time prescribed. While so, the plaintiff, who was not ready with the sale consideration, was postponing the payment of the balance consideration on the pretext that he is making arrangement for loan to complete the transaction. Ultimately, his attempt to get loan did not materialise and therefore, he could not complete the contract within the time prescribed. However, one week before expiry of the period prescribed, the plaintiff caused notice with the false claim that he is ready and willing to perform the contract and pay the balance consideration. The defendant sent a suitable reply dated 23.12.2008 refuting all the allegations and enclosing the xerox copies of all the title deeds pertaining to the suit property to the plaintiff and called him to pay the balance sale consideration on or before 25.12.2008 and get the sale deed executed in his favour, failing which he will loose advance amount. 5. On receipt of the reply notice, the plaintiff did not come forward to pay the balance consideration and get the sale deed registered. After abandoning the contract and lapse of nearly three years, the plaintiff had instituted the suit on 19.09.2011 just before expiry of three years limitation, as if the suit is filed within the limitation. Despite time was the essence of the contract and three months was fixed for performing the contract. 6. Based on the pleadings, the trial Court framed the following Issues: (i) Whether the plaintiff is entitled for relief of Specific Performance as prayed for? (ii) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? (iii) To what other relief? 7. Before the trial Court, on behalf of the plaintiff, the plaintiff and two other witnesses were examined and 13 exhibits were marked. On behalf of the defendant, one witness was examined and 3 exhibits were marked. 8. After considering the pleadings and evidence, the trial Court dismissed the suit on the ground that the plaintiff has advanced only a small amount and further, there is no evidence that he was ready and willing to perform his part of contract always from the date of agreement till the date of filing the suit. The trial Court has also declined to order refund the advance amount, since the plaintiff has not sought for any alternate prayer for the refund of money advanced. 9. The trial Court has also declined to order refund the advance amount, since the plaintiff has not sought for any alternate prayer for the refund of money advanced. 9. Having aggrieved by the said dismissal judgment, the present appeal is preferred on the ground that the time was not the essence of the contract and therefore, the suit for specific performance filed on 19.09.2011 to enforce the agreement dated 25.09.2008 is well within the limitation prescribed under the statute and therefore, the finding of the trial Court that the plaintiff was not ready and willing to perform his contract, is unsustainable. 10. The learned counsel appearing for the appellant submitted that the trial Court ignored the evidence of PW-2, who clearly stated that the defendant failed to hand over the documents within the three months period to perform the contract and therefore, the delay in filing the suit cannot be attributed to the plaintiff. 11. Per contra, the learned counsel appearing for the respondent submitted that the terms of the agreement Ex.A1 clearly indicates that the time is the essence of the contract. Under Ex.A4, the defendant had categorically informed that he is ready and willing to execute the sale deed provided the plaintiff pays the balance sale consideration. The plaintiff has not come forward to pay the balance sale consideration and made a false allegations that the copies of the documents were not handed over to the plaintiff. Whereas the copies were already handed over to the plaintiff and another set of documents were enclosed and forwarded to the plaintiff along with Ex.A4. 12. Regarding the Fixed Deposit Receipt, which are marked as Ex.A4 to Ex.A7 and Ex.A9, the leaned counsel appearing for the respondent submitted that these Fixed Deposit Receipts are not the proof for willingness. If really the plaintiff had intention to purchase the property and had sufficient fund, he should have either paid the balance money and got the sale deed executed or atleast should have instituted the suit soon after the receipt of the reply notice dated 23.12.2008 marked as Ex.A4. Contrarily, the suit was filed only on 19.09.2011 just six days prior to expiry of three years period. The unexplained delay in filing the suit is sufficient to dismiss the suit for specific performance, which is an equitable relief. Contrarily, the suit was filed only on 19.09.2011 just six days prior to expiry of three years period. The unexplained delay in filing the suit is sufficient to dismiss the suit for specific performance, which is an equitable relief. The trial Court has rightly dismissed the suit and there is no reasonable ground to interfere with the findings of the trial Court. 13. Point for consideration: Whether the finding of the trial Court that the plaintiff was not ready and willing to perform the contract, is sustainable, in the light of the fixed deposit receipts marked as Exs.A4 to Ex.A7 and Ex.A9, which indicate that the plaintiff had means to pay the balance sale consideration? 14. The expression “ready and willing” as found in Section 16 of the Specific Relief Act, 1963, has a wide meaning and implication. The person, who seek relief of specific performance, need not a jingle the coins before the Court every day and every minute. It is sufficient to satisfy the Court that he has source to pay the consideration. At the same time, the availability of fund will only indicate the readiness to perform the contract, but it is not an inferential fact for willingness. Willingness is independent of readiness. A man of means, inspite of entering into an agreement, may not be willing to complete the contract at later point of time for various other reasons. Therefore, the relief of specific performance being an equitable relief, the Court has to look into the conduct of the party, who seek specific performance. Whether he has propensity to purchase the property by paying the sale consideration and also whether he has the capacity to purchase the property? 15. In this case, the facts reveals that the plaintiff has entered into an agreement to purchase the suit property for a sale consideration of Rs. 16,00,000/-. He has entered into the sale agreement dated 25.09.2008 and paid an advance of Rs. 2,00,000/-. Though the time to perform the contract was fixed as three months, he has not paid the balance amount within three months, except causing the notice to the defendant through his Advocate on 18.12.2008. The defendant, on receipt of this notice, had given reply on 23.12.2008. Thereafter, the plaintiff had kept quiet and not made any attempt to complete the contract, but had waited for two years 11 months. The defendant, on receipt of this notice, had given reply on 23.12.2008. Thereafter, the plaintiff had kept quiet and not made any attempt to complete the contract, but had waited for two years 11 months. To be more precise 7 days short of three years to institute the suit. His non-willingness to enforce the contract within a reasonable time clearly exhibited through his conduct by filing the suit belatedly, though the cause of action to file the suit arose two years 9 months prior to the institution of the suit. 16. In G. Kasi Reddiyar and Others vs. K. Ravi, 2017 (3) MVN (Civil) 185 the plaintiff entered into an agreement of sale to purchase the suit property and had also paid advance. He had further agreed to pay the balance sale consideration within a period of three months. The legal notice to execute a sale deed was issued after one year and the suit for specific performance was subsequently filed. The trial Judge held that the plaintiff was ready and willing and had decreed the suit for specific performance. It was however found by the learned Single Judge in the Appeal that no written demand was made within the time stipulated in the agreement of sale. It was also found that the witness examined to prove readiness and willingness had stated beyond the pleadings and the evidence of the plaintiff. It was therefore held that the time fixed under agreement has to be given importance and the limitation fixed under the Limitation Act is only an upper limit. The judgment and decree granting specific performance was set aside. The High Court while reversing the trial Court judgment and decree had observed: “The delay is nearly one year and six months from the date of the agreement till date of the suit. In a recent pronouncement of the Hon’ble Supreme Court in Padma Kumari and Others vs. Dasayyan and Others, 2015 (8) SCC 695 , it has been pointed-out that the time fixed under the agreement should be given some importance. These observations have been made after having considered, the general law that time is not the essence of the contract in respect of agreements relating to immovable properties.” 17. These observations have been made after having considered, the general law that time is not the essence of the contract in respect of agreements relating to immovable properties.” 17. In Saradamani Kandappan vs. S. Rajalakshmi and Others, 2011 (4) CTC 640 (SC), the Hon’ble Supreme Court had observed that the period of three yeas fixed under Article 54 of the Limitation Act is only an outer time limit, but that does not by itself absolve the plaintiff from proving his readiness and willingness throughout, that is from the date of the agreement till date of the sale or filing of the suit. 18. In K.S. Vaidyanadam and Others vs. Vairavan, 1997 (1) CTC 628 (SC) wherein the Hon’ble Supreme Court has observed, every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the Agreement. Court will also ‘frown upon suits which are not tiled immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance where equity shifts in favour of the purchaser. 19. In view of the above principles laid down by the Hon’ble Supreme Court and the total lack of evidence on the side of the plaintiff regarding readiness and willingness on his part soon after the cause of action to institute the suit for specific performance arose and the unexplained delay in filing the suit, I am constrained to hold that the appellant is not entitled to the relief of the specific performance and the trial Court has rightly declined to entertain his prayer. 20. However, on equity, though the trial Court has declined to give the alternate relief, since the plaintiff has not prayed for that and the said view of the trial Court is supported by law and pronouncement of the Hon’ble Supreme Court, the subsequent view of the Hon’ble Apex Court to grant lesser relief than, what prayed for to meet the ends of justice prompts this Court to grant the alternate relief of refunding the money advanced i.e. Rs. 2,00,000/- without any interest, within a period of two months from the date of this judgment. Any delay beyond two months shall carry on interest of 12% p.a. The said relief is granted to the plaintiff to avoid unjust enrichment and on the principle of equity. 21. Accordingly, this Appeal Suit is partly allowed as stated above. No order as to costs.