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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RFA.NO.667 OF 2011 (SP)
BETWEEN:
1. SRI. M. MUNISWAMY
S/O MUNIAN
AGED ABOUT 70 YEARS
2. SRI M. VELLAIDEVAN
S/O MUNIAN
AGED ABOUT 64 YEARS
THE APPELLANT NOS.1 & 2
RESIDING AT NO.48
CKC GARDEN, II CROSS
LALBAGH ROAD
BANGALORE-560 027.
3. SRI MADHURAI SWAMY
S/O MARI
AGED ABOUT 47 YEARS
4. SRI VENKATESH
S/O PONNURANGAM
AGED ABOUT 47 YEARS
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5. SRI PALINI
S/O PONNURANGAM
AGED ABOUT 44 YEARS
APPELLANTS 3 TO 5
ARE RESIDING AT NO.14
"B" STREET, SHANTHINAGAR
BANGALORE-560 027
6. SMT. KANNAMAL
W/O CHANNAIAH
AGED ABOUT 58 YEARS
7. SRI RAJA
S/O CHANNAIAH
AGED ABOUT 31 YEARS
8. SMT. JAYAMMA
W/O RAMU
AGED ABOUT 52 YEARS
9. SRI R. SHANKAR
S/O RAMU
AGED ABOUT 41 YEARS
10. SRI. NATARAJ
S/O MUNISWAMY
AGED ABOUT 57 YEARS
APPELLANT NOS.6 TO 10
ARE RESIDING AT
CHALLAGHATTA VILLAGE
YAMLUR POST
BANGALORE-560 037.
....APPELLANTS
(BY SRI. K. SUMAN, ADVOCATE)
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AND:
M/S. GMS CONSTRUCTION PVT. LTD.
NO.35 D, OFF LINKING ROAD
SANTA CRUZ WEST
MUMBAI-400 054
BY ITS AUTHORISED REPRESENTATIVE
....RESPONDENT
(BY SRI. AMIT MANDGI, ADVOCATE)
THIS RFA IS FILED UNDER ORDER-XLI, RULE-1 READ WITH
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED:17.02.2011 PASSED IN O.S.15132/2005 ON THE FILE OF
THE XXVIII-ADDL. CITY CIVIL JUDGE, MAYO HALL, BANGALORE,
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.10.2020, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, SACHIN SHANKAR MAGADUM J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The captioned appeal is filed by the defendant Nos.1 to 6, 8 to 10 and 14 challenging the judgment and decree passed in O.S.No.15132/2005 wherein the suit filed by the plaintiff for specific performance is decreed directing the defendants to execute sale deed in respect of suit schedule property by receiving the balance sale consideration.
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2. The facts leading to the case are as under:
The respondent/plaintiff filed suit for specific performance seeking relief of specific performance of contract in respect of suit schedule property bearing Sy.No.74 situated at Challaghatta Village, Varthur Hobli, Bangalore South Taluk measuring 13 guntas (about 14,000 sq.ft.) bearing HASB Katha Nos.157/A, 158/A and 159/A. The respondent/plaintiff entered into an agreement on 22.09.2001 with the appellants/defendants who are the absolute owners of the property in question. The appellants/defendants proposed to sell the suit schedule property as they were in need of money for their legal and family necessities. The sale consideration was fixed at Rs.18,20,000/- and the said proposal was accepted by the respondent/plaintiff.
It is also stated in the plaint that prior to the suit agreement dated 22.09.2001, the appellants/defendants had entered into a sale agreement with one Syed Tameezuddin in respect of suit schedule property for a sale consideration of 5 Rs.18,20,000/-. The respondent/plaintiff further averred in the plaint that appellants/defendants have jointly received a sum of Rs.3,00,000/- under three different cheques drawn on Indus Ind Bank Limited. It is also stated that appellants/defendants have further received a sum of Rs.1,00,000/- under cheque No.234368 and a sum of Rs.50,000/- under cheque No.234369 both drawn on Indus Ind Bank Limited. The respondent/plaintiff has stated that it has paid in all Rs.4,50,000/- towards sale consideration. The respondent/plaintiff has further stated that it was agreed between the parties at the time of entering into sale agreement that the said Syed Tameezuddin would assign his interest in favour of respondent/plaintiff at the time of executing the registered sale deed. At para 8 of the plaint, the respondent/plaintiff has specifically stated in view of entering into sale agreement on 22.09.2001 with the present appellants/defendants, they have cancelled the earlier agreement in favour of Syed Tameezuddin. In view of 6 cancellation, the respondent/plaintiff has paid a sum of Rs.4,50,000/- to the said Syed Tameezuddin and he has executed 'No objection' enabling the appellants/defendants to enter into a fresh agreement with the respondent/plaintiff and thereby has cancelled the earlier agreement dated 08.07.1998.
At para 9 of the plaint, the respondent/plaintiff has stated that Rs.5,00,000/- was paid on the date of agreement and subsequently, a sum of Rs.3,00,000/- was also paid through cheque. In the said paragraph, the respondent/plaintiff has further averred that a sum of Rs.50,000/- was paid to the appellants/defendants in the year 2002 through demand draft dated 17.04.2002. The respondent/plaintiff has contended that appellants/defendants have received a sum of Rs.9,00,000/- towards sale consideration and balance sale consideration of Rs.9,20,000/- was agreed to be paid at the time of registration after 7 appellants/defendants furnishing the clear and marketable title to the respondent/plaintiff.
The grievance of the respondent/plaintiff is that as per the terms of agreement, the appellants/defendants were required to furnish all title deeds and other municipal documents to enable the respondent/plaintiff to secure the legal opinion and thereafter register the document in its favour. It is specifically averred at para 10 of the plaint that inspite of repeated requests and payment, the appellants/defendants have not come forward to comply the terms of the agreement and this compelled the respondent/plaintiff to issue the legal notice on 15.10.2004. It is also stated at para 12 that appellants/defendants have issued a reply notice on 04.11.2004 stating that they have forfeited Rs.3,00,000/- alleging that respondent/plaintiff has committed breach in not paying the balance sale consideration and get the sale deed executed in its favour. The respondent/plaintiff alleging that appellants/defendants have 8 failed to perform their part of contract though respondent/plaintiff was always ready and willing to perform its part of contract, has filed the present suit.
The appellants/defendants, on receipt of summons, tendered appearance and contested the proceedings by filing written statement. The appellants/defendants have stoutly denied the entire averments made in the plaint. The appellants/defendants specifically contended that suit is barred by time. The appellants/defendants at para 2 have specifically contended that the suit agreement stipulates that the registration of sale deed has to be completed within three months from the date of agreement and time being the essence of contract, the respondent/plaintiff has failed to perform its part of contract. It is also stated at para 2 that since there is a breach on the part of respondent/plaintiff, they have forfeited a sum of Rs.3,00,000/- out of the total advance amount received by them. The appellants/defendants have also contended that even for recovery of advance amount, the 9 suit ought to have been filed within three years from the date fixed for performance of contract i.e., on or before 21.12.2004. The appellants/defendants have further contended that since admittedly suit is filed on 13.01.2005, the same is expressly barred by time. The appellants/defendants also stoutly denied the averments made at para 4 of the plaint, wherein the respondent/plaintiff has contended that appellants/defendants were required to furnish the consolidated katha in the name of any one of the vendors at the time of executing the sale deed.
The appellants/defendants at para 5 of the written statement have admitted the contention of the respondent/plaintiff that appellants/defendants offered to sell the suit schedule property as they were in need of money.
Reiterating the said pleadings made by the respondent/plaintiff, the appellants/defendants have further contended that they were in need of money and that compelled them to sell the property and respondent/plaintiff 10 Company was well aware of this fact and as such, defendants had emphasized that time would be the essence of contract and thereby stipulated three months time to pay the balance sale consideration and failing which, the sum of Rs.3,00,000/- out of the earnest money would stand forfeited in favour of the appellants/defendants. The appellants/defendants have also stoutly denied the averments relating to the assignment by Syed Tameezuddin. At para 8 of the written statement, the appellants/defendants have stoutly denied the payment of Rs.5,50,000/- on the date of agreement. The appellants/defendants have also seriously disputed the alleged payment of Rs.50,000/- in the year 2002. The appellants/defendants have contended that insofar as alleged payment of Rs.50,000/- in the year 2002 is concerned, the appellants/defendants have stated that it is a deliberate attempt on the part of the respondent/plaintiff to overcome limitation. To counter the allegations, the appellants/defendants have also contended that in legal notice 11 dated 15.10.2004, the alleged payment of Rs.50,000/- is not at all reflected. The respondent/plaintiff in legal notice has contended that a sum of Rs.8,50,000/- was paid and the balance sale consideration of Rs.9,70,000/- was due. Relying on the contents of the legal notice, the appellants/defendants have specifically contended at para 8 of the written statement that there is absolutely no whisper of payment of Rs.50,000/- in the year 2002 and the same is sought to be mischievously introduced by the respondent/plaintiff in the above case. The further allegation of the respondent/plaintiff that appellants/defendants were required to furnish the clear and marketable title is also seriously disputed. The appellants/defendants have specifically contended that all the documents were made available to the respondent/plaintiff long before and the said allegations run contrary to the recitals in the suit agreement dated 22.09.2001.
At para 9 of the written statement, the
appellants/defendants have specifically contended that
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respondent/plaintiff's Chairman Sri G.B. Singh left for Mumbai and thereafter nothing was heard from him till the issuance of legal notice dated 15.10.2004. At para 10 of the written statement, the appellants/defendants have specifically contended that on account of default committed by the respondent/plaintiff, the agreement stood automatically cancelled and the appellants/defendants are entitled to forfeit a sum of Rs.3,00,000/- out of total sum of Rs.8,50,000/- received by them as an earnest money. On these set of defences, the appellants/defendants sought for dismissal of the suit.
Based on the rival pleadings, the Trial Court formulated the following issues:
"1) Whether the plaintiff proves that they have paid a sum of Rs.9,00,000/- to defendants out of total sale consideration of Rs.18,20,200/- in respect of the agreement of sale dated 22.09.2001?13
2) Whether the plaintiff proves that they were ready and willing to perform their part of the contract?
3) Whether the suit is barred by limitation?
4) Whether the plaintiff is entitled for the relief of specific performance?
5) Whether the plaintiff is entitled for the relief of permanent injunction as sought for?6) What Order or Decree?"
The respondent/plaintiff to substantiate its case, examined its authorized official as PW.1 and to corroborate the pleadings and ocular evidence relied on documentary evidence vide Exs.P-1 to P-11. The appellants/defendants in support of their contention and defence set up in the written statement examined defendant No.3 as DW.1 and did not chose to lead any rebuttal documentary evidence.
The Court below having assessed the oral and documentary evidence held that the respondent/plaintiff has proved the payment of Rs.9,00,000/- to the 14 appellants/defendants out of total consideration of Rs.18,20,000/-. The Court below also held that respondent/plaintiff has established its readiness and willingness to perform their part of contract. The Court below while dealing with issue No.3 has also held that the suit is not barred by limitation. The Court below taking note of Exs.P-5 to P-11 has come to conclusion that appellants/defendants and respondent/plaintiff came to an understanding to continue the sale transaction and has received a sum of Rs.50,000/- through Demand Draft and the same is encashed by the appellants/defendants. The Court below held that payment of disputed amount of Rs.50,000/- is proved by the respondent/plaintiff and that goes to show that the parties to the agreement intended to keep the contract subsisting. The Court below was also of the view that the above said conduct of the parties would clearly go to show that time was not the essence of contract. On these set of reasonings, the Court below has come to conclusion that respondent/plaintiff has 15 established due execution of agreement and also the payment under the agreement as an advance amount and has also established its readiness and willingness to perform its part of contract and as such, is entitled for relief of specific performance of contract. Accordingly, suit was decreed directing the appellants/defendants to execute the sale deed in respect of suit schedule property by receiving balance sale consideration within two months from the date of decree.
3. Learned counsel appearing for the appellants/defendants would vehemently argue and contend before this Court that the very suit filed by the respondent/plaintiff is not through a valid plaint signed by the competent authorized representative of the respondent/plaintiff Company. He would also contend and submit to this Court that the suit agreement is not signed by all the appellants/defendants and also does not bear any witness to the suit agreement. Learned counsel further would argue and contend before us that there are material 16 inconsistencies in the legal notice and the plaint in regard to payment of further advance amount. He would vehemently argue and contend that in the legal notice dated 15.10.2004, it is stated that appellants/defendants had received a sum of Rs.8,50,000/- towards part sale consideration and there is absolutely no whisper in regard to alleged payment of Rs.50,000/- in the legal notice. This alleged payment of Rs.50,000/- in the year 2002 is pleaded for the first time in the plaint. Learned counsel would further vehemently argue and contend before this Court that since suit is abated on account of death of defendant Nos.7, 11, 12 and 13, it is to be deemed that suit against all the contesting defendants stood abated. He would submit to this Court that this material aspect is not taken into consideration and thereby the Court below has committed a grave error of law. He would also submit to this Court that there is a categorical admission by PW.1 examined by the respondent/plaintiff who has admitted 17 in unequivocal terms that all the parties to the agreement have not signed the suit agreement.
4. Learned counsel for the appellants/defendants further by relying on Ex.P-1, which is an agreement executed by the appellants/defendants in favour of one Syed Tameezuddin would submit to this Court that in the suit agreement, there is a recital that the said Syed Tameezuddin has received the advance amount paid by him from the respondent/plaintiff and the further part of the recital indicates that he has affixed his signature as a consenting witness. Relying on this part of the suit agreement, learned counsel appearing for the appellants/defendants would vehemently argue and contend that though there is a recital that he has affixed his signature but, however, the said Syed Tameezuddin has not signed this document as a consenting witness. The respondent/plaintiff has also not examined this relevant witness to establish that the agreement under Ex.P-2 was concluded.
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5. Learned counsel would further vehemently argue and contend before us that the witness who has signed the agreement - Ex.P-2 on behalf of the respondent/plaintiff and is also the Managing Director has not stepped into the witness box. Learned counsel would further contend that he has also not verified the pleadings. Learned counsel further would contend that PW.1 who is examined on behalf of respondent/plaintiff was not competent to depose and his competency stands tested during cross-examination wherein he has pleaded his ignorance in regard to several significant details relating to transaction. On these set of grounds, learned counsel appearing for the appellants/defendants would submit to this Court that the judgment and decree passed by the Court below is palpably erroneous and suffers from serious infirmities and hence, is liable to be set aside.
6. Learned counsel would further contend that on a plain reading of recital in Ex.P-2, it is clearly forthcoming that time is the essence of contract. Under the agreement vide 19 Ex.P-2, both the parties have agreed in unequivocal terms and it is clearly stipulated that the sale deed shall be registered within three months from the date of agreement. Relying on this relevant recital in the suit agreement, he would contend that time, therefore, ended on 22.12.2001 and there is also admission by PW.1 in regard to time being the essence of contract and this material aspect would have a bearing on the conclusion. Relying on this material aspect, he would submit to this Court that the Court below erred in not dismissing the suit on this count.
7. To buttress his arguments, learned counsel for the appellants/defendants has relied on the following judgments:
1) Janki Vashdeo Bhojwani and Another vs. Indusind Bank Ltd., and Others - (2205) 2 SCC 217
2) Sunkara Lakshminarasamma (D) by LRs. vs. Sagi Subba Raju and Others - ILR 2019 Kar 1291 20
3) Badni (Dead) by LRs. and Others vs. Siri Chand (Dead) by LRs. and Others - (1999) 2 SCC 448
4) Saradamani Kandappan vs. S.Rajalakshmi and others - (2011) 12 SCC 18
5) Sukhwinder Singh vs. Jagroop Singh & Another - 2020 (2) Supreme 171
6) P. Meenakshisundaram vs. P. Vijayakumar & Another - (2018) 3 Supreme 181
7) Dadarao and Another vs. Ramrao and Others - (1999) 8 SCC 4
8) Vimaleshwar Nagappa Shet vs. Noor Ahmed Sheriff and Others - 2011 (5) Kar.L.J.
77 (SC)
9) Dr. S.K.Ghatak and Others vs. S.Prabir Roy and Another - ILR 2009 Kar 3533
8. Per contra, learned counsel appearing for the respondent/plaintiff repelling the arguments extended by the learned counsel for the appellants/defendants would vehemently argue and contend before this Court that the judgment and decree passed by the Court below in granting 21 discretionary relief of specific performance is based on legal evidence and in absence of rebuttal evidence adduced by the appellants/defendants. Insofar as abatement is concerned, he would submit to this Court that the death of defendant Nos.7, 11 and 12 was never reported to the Court and as such, the said plea is not available to the appellants/defendants to raise such a plea before this Court. He would further submit that if the learned counsel appearing for the defendants did not intimate the death of defendant Nos.7, 11 and 12 as contemplated under Order 22 Rule 10(A) of CPC, the legal representatives, if any, are bound the decree and the proceedings would not abate. Insofar as death of defendant No.13 is concerned, the learned counsel appearing for the respondent/plaintiff would submit to this Court that defendant No.13 had not contested the proceedings and as such, under the provisions of Order 22 Rule 4(4) of CPC, the respondent/plaintiff was exempted from impleading the legal representatives.
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9. In regard to time being the essence of contract, learned counsel for the respondent/plaintiff would vehemently argue and contend before this Court that there are catena of judgments of this Court and Hon'ble Apex Court relating to agreement for sale of immovable properties and the general presumption is that time is not the essence of contract. Relying on the judgment rendered by the Division Bench of this Court in E.S. Rajan vs. R.Mohan reported in 1994 (5) Kar.L.J. 357 (DB), he would submit to this Court that intention to make time as essence must be clear and unmistakable. To buttress his argument, he would further submit to this Court that the appellants/defendants have received an amount of Rs.50,000/- in the year 2002 through a demand draft and the respondent/plaintiff has succeeded in establishing this payment in the year 2002 and when the said fact is established, the question as to whether time was essence of contract would lose its significance in view of acceptance of further advance payment in the year 2002. 23
10. Learned counsel further would rely on a recital in the suit agreement wherein there is an obligation on the vendors to produce documents of title to enable the purchaser to seek legal clearance by his Advocate before registration of sale deed. Relying on this clause, he would contend before this Court that there were certain obligations cast on the appellants/defendants and on a plain perusal of this clause of the suit agreement, it would clearly establish that time was not to be treated as essence of contract and it was never the intention of the parties. Learned counsel would further contend that the respondent/plaintiff have paid an amount of Rs.8,50,000/- on the date of suit agreement i.e., 22.09.2001 and the appellants/defendants have further received a sum of Rs.50,000/- through a demand draft dated 17.04.2002 which was duly acknowledged and encashed by appellant No.3/defendant No.3. This would clearly establish the respondent/plaintiff company's readiness and willingness to perform its part of contract. He would submit to this Court 24 that the material on record would clearly establish the readiness and willingness and since the suit agreement is not in dispute, the Trial Court has rightly exercising its discretion has granted relief of specific performance. Since the Court below has examined equities, the conduct of parties and by over all appreciation of oral and documentary evidence has granted discretionary relief of specific performance, he would submit to this Court that the appellants/defendants have not at all made out any valid grounds so as to displace the reasons and conclusions arrived at by the Court below. On these set of grounds, he would submit to this Court that the appeal is devoid of merits and the same is liable to the dismissed.
11. Heard learned counsel appearing for the appellants/defendants and learned counsel appearing for the respondent/plaintiff. We have perused the pleadings of the rival parties and have gone through the entire trial Court records. The following points would arise for consideration: 25
1) Whether the Court below was justified in granting discretionary relief of specific performance by holding that respondent/plaintiff company has proved its readiness and willingness to perform its part of contract?
2) Whether the Court below was justified in holding that time is not the essence of contract?
3) Whether the judgment and decree of the Court below is a nullity on account of death of defendant Nos.7, 11, 12 and 13?
Re: Point No.1:
12. The appellants/defendants are resisting the claim of the respondent/plaintiff on the ground that time is the essence of contract since three months time was specified in the agreement. The contention of the appellants/defendants before the Court below was that agreement was executed on 22.09.2001 and the legal notice as per Ex.P-3 is issued by the respondent/plaintiff company on 15.10.2004. The appellants/defendants admit that they have executed agreement for sale in favour of the respondent/plaintiff as per 26 Ex.P-2. The said fact is not in dispute. However, the appellants/defendants are disputing the payment of Rs.50,000/- by way of demand draft drawn in favour of the appellant No.3/defendant No.3 on 17.04.2002.
13. Before we proceed to examine the readiness and willingness and the discretion exercised by the Court below in granting relief of specific performance, it is borne out from the records that appellants/defendants had executed an agreement in favour of one Syed Tameezuddin on 08.07.1998. The said agreement for sale is placed on record by the respondent/plaintiff and the same is marked as Ex.P-1. In the said agreement, it is forthcoming that the appellants/defendants received a sum of Rs.3,00,000/- as an advance amount. On perusal of this document, it is forthcoming that appellants/defendants had an intention to sell the suit schedule property. On perusal of Ex.P-2, which is the agreement for sale in favour of the respondent/plaintiff, there is a recital that the said earlier agreement holder namely 27 Syed Tameezuddin has received an advance amount paid by him and this payment is made by the respondent/plaintiff. The appellants/defendants at para 7 of the written statement have also stated in unequivocal terms that earlier agreement as per Ex.P-1 in favour of Syed Tameezuddin stood cancelled and that they have executed a fresh agreement for sale on 22.09.2001 as per Ex.P-2. At para 7, the appellants/ defendants have stated in unequivocal terms that a sum of Rs.4,50,000/- was paid to Syed Tameezuddin. On reading the recitals in Ex.P-2 coupled with the averments made at para 7, we would find that the earlier agreement for sale in favour of Syed Tameezuddin stood cancelled and the respondent/ plaintiff has not only paid the advance amount of Rs.3,00,000/- but it appears that towards full and final settlement, the respondent/plaintiff has paid a sum of Rs.4,50,000/- which is evident from para 7 of the written statement.
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14. The question as to whether time was the essence of contract and as to whether the respondent/plaintiff had an intention to keep the contract subsisting and was ever ready and willing to perform its part of contract has to be gathered from the subsequent conduct. The respondent/plaintiff has specifically averred in the plaint that a sum of Rs.50,000/- was paid to appellant No.3/defendant No.3 on 17.04.2002 by way of demand draft drawn in favour of appellant No.3 and the said amount stood credited to the account of appellant No.3/defendant No.3. At this juncture, we would also deem it fit to refer to the recitals in the suit agreement wherein there is a recital in the suit agreement that the vendors have no objection for payment of further advance amount in favour of appellant No.3/defendant No.3. This recital clearly goes to show that the other family members have authorized appellant No.3 to make further negotiation and also to receive the balance sale consideration. In view of authorization in favour of appellant No.3/defendant No.3, it appears that 29 respondent/plaintiff company has paid further amount of Rs.50,000/- on 17.04.2002 and the same is accepted. To corroborate this payment, the respondent/plaintiff has relied on Ex.P-10 which is the statement extract of appellant No.3.
15. The respondent/plaintiff has also produced the endorsement issued by the Manager of Canara Bank as per Ex.P-11 to prove that he has taken the demand draft from his bank for a sum of Rs.50,000/- drawn in favour of Madurai Swamy who is appellant No.3/defendant No.3. If Exs.P-10 and P-11 coupled with ocular evidence of PW.1 is meticulously examined, we are of the view that the respondent/plaintiff was not only ready but also willing to perform its part of contract and had an intention to keep the agreement for sale subsisting. In fact, the conduct of the appellants/defendants in denying this payment made in the year 2002 by way of demand draft drawn in favour of appellant No.3 appears to be unfair and unreasonable. They have gone to the extent of denying the credit of Rs.50,000/- in the account of appellant 30 No.3. The defence that it was not credited to the account of appellant No.3 is not at all substantiated by producing clinching evidence to refute the contention in regard to subsequent payment of Rs.50,000/- by the respondent/plaintiff. Under the agreement for sale as per Ex.P-2, the appellants/ defendants were required to make out good and marketable title in respect of the suit schedule property by producing relevant title documents so as to enable the respondent/plaintiff to seek a legal opinion for registration of sale deed. The appellants/defendants have taken a contention at paragraphs 8 and 9 of the written statement that all the documents were made available to the respondent/plaintiff and the same were handed over long before is not at all substantiated during trial. If at all, all the documents were handed over to the respondent/plaintiff, then the parties to the agreement for sale would not have contemplated a clause in the suit agreement vide Ex.P-2 contemplating obligation on appellants/defendants to furnish 31 title documents. The averments made in paragraphs 8 and 9 runs contrary to the recitals in the suit agreement obligating the appellants/defendants to furnish title documents. The pleadings in paragraphs 8 and 9 of the written statement being contrary to the recital are inadmissible.
16. The appellants/defendants contention that payment of a sum of Rs.50,000/- on 17.04.2002 by way of demand draft in favour of appellant No.3/defendant No.3 does not find a place in the legal notice issued by the respondent/plaintiff. Relying on this omission on the part of the respondent/plaintiff in not claiming payment of Rs.50,000/- in the legal notice as per Ex.P-3, the appellants/defendants are contending before this Court that the Court below erred in holding that the payment of Rs.50,000/- in the year 2002 is also proved. We find some force in the contention raised by the appellants/defendants in regard to this material aspect but, however, on perusal of Exs.P-10 and P-11 which is the statement of account pertaining to appellant No.3/defendant 32 No.3, the controversy in regard to the subsequent payment of Rs.50,000/- stands proved and the documents relied by the respondent/plaintiff as per Exs.P-10 and P-11 would clinch the issue.
17. In a suit for specific performance of contract, the relief sought is equitable in nature. The Court is required to take into account the conduct of parties, the fairness of the deal and thereafter proceed to examine the entitlement of plaintiff in seeking relief of specific performance of contract. The agreement for sale as per Ex.P-2 does impose corresponding obligation both on the vendor and vendee. The appellants/defendants were required to furnish title documents and all other relevant documents to enable the respondent/plaintiff to secure legal opinion and thereafter enable it to come forward to secure the sale deed by paying the balance sale consideration. The agreement for sale was executed by the appellants/defendants on 22.09.2001 and admittedly, the time stipulated to complete the transaction 33 was three months but, appellants/defendants have received a further sum of Rs.50,000/- on 17.04.2002. It can be presumed that there was a further demand by appellants/defendants and the fact that respondent/plaintiff has paid further sum of Rs.50,000/- by way of demand draft after expiry of three months would clearly establish the readiness and willingness of respondent/plaintiff in performing its part of contract. The clinching evidence on record would clearly demonstrate that the respondent/plaintiff was ever ready and willing to perform its part of contract continuously from the date of contract as per Ex.P-2. The Court below has exercised its discretion judiciously and the discretion exercised is based on sound principles of law.
18. On re-appreciation of the entire evidence on record, we are of the opinion that respondent/plaintiff has proved its readiness and willingness by producing cogent and clinching evidence. The Court below has dealt with issue No.2 in detail and the finding and conclusions arrived at by the Trial Court 34 while examining issue No.2 is based on legal evidence. We do not find any illegality or infirmities in the findings recorded by the Court below while answering issue No.2. For the reasons stated supra, point No.1 formulated above is answered in the affirmative.
Re: Point No.2:
19. The agreement for sale as per Ex.P-2 was executed by the appellants/defendants on 22.09.2001. It was agreed by the parties that the transaction shall be completed within a period of three months from the date of agreement. But there is also obligation cast on the appellants/defendants to furnish title documents and other municipal documents to enable the respondent/plaintiff to seek legal opinion and thereafter come forward for registration of sale deed. Except bald allegations in the written statement that all the documents were furnished, the appellants/defendants have not produced any cogent and clinching evidence to demonstrate the same. The subsequent payment made by the respondent/plaintiff to the 35 tune of Rs.50,000/- on 17.04.2002 which is in fact after expiry of three months would clinch the issue and the same would indicate that the appellants/defendants never intended that time would be the essence of contract.
20. There are catena of judgments rendered by this Court and the Hon'ble Apex Court and it has been held that mere fixation of time frame does not by itself evidence intention to make time the essence. The respondent/plaintiff has proved the subsequent payment of Rs.50,000/- after expiry of the time stipulated under the agreement which is three months and Exs.P-10 and P-11 substantiates the contention of the respondent/plaintiff that further payment was made. It is also trite proposition of law that there is an initial presumption against 'time being the essence of contract' in transaction involving sale of immovable property. However, this presumption can be displaced only if the intention of the parties as gathered from the stipulations contained and language employed in the agreement to sell to manifestly 36 suggest that the parties had intended to make 'time as the essence of contract'. On perusal of the recital in the agreement for sale as per Ex.P-2 and having regard to the conduct of the parties subsequent to suit agreement, would clearly establish that parties never intended to make time as the essence of contract and the period fixed in the suit agreement at the most can be inferred that parties to the suit agreement intended to complete the sale transaction at the earliest.
21. For the reasons stated supra, the point No.2 formulated above in answered in the affirmative. Re: Point No.3:
22. The appellants/defendants constitute a joint family and the schedule property is an ancestral property of appellants/defendants. On perusal of agreement for sale as per Ex.P-2, it is forthcoming that all the family members together have come forward to execute the agreement for sale 37 in favour of the respondent/plaintiff. There is a recital in the agreement for sale as per Ex.P-2 authorizing appellant No.3/defendant No.3 to collect further advance amount from the respondent/plaintiff. The same is culled out as follows:
"WHEREAS the Vendor 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 herein have no objection to pay the further advance mentioned above to Vendor No.3 M.MADHURAI SWAMY, the said payment is herewith acknowledged by all the Vendors."
23. On perusal of this recital, it is clearly evident that it is the appellant No.3/defendant No.3 who was negotiating on behalf of the entire family. The same stands strengthened from the fact that it is only appellant No.3/defendant No.3 who has stepped into the witness box to give oral evidence. The fact that further payment was made in favour of appellant No.3/defendant No.3 is also proved by the respondent/plaintiff as per Exs.P-10 and P-11. This material aspect would clinch the issue. It is the appellant No.3/defendant No.3 who fought the litigation on behalf of the family members. 38
24. The defendant No.13 died during the pendency of the suit and the same is reflected in the order sheet. The appellant/defendants never raised an objection that respondent/plaintiff cannot proceed with the suit unless the legal representatives of defendant No.13 are brought on record. Defendant No.13 did not chose to contest the proceedings. In that view of the matter, the appellants/defendants for the first time before this Court have come up with the objection by contending that since defendant No.13 died and the same was within the knowledge of respondent/plaintiff, the entire suit abates on account of death of defendant No.13.
25. The next contention raised by the appellants/defendants before this Court is that defendant Nos.7, 11 and 12 died during the pendency of the suit and the legal heirs of deceased defendants were also not brought on record. It is not the case of the appellants/defendants that the death of defendant Nos.7, 11 and 12 was reported and 39 inspite of the said fact, the respondent/plaintiff has not chosen to bring the legal heirs of the above said defendants on record. Under Order 22 Rule 10(A) of CPC, learned counsel appearing for the defendants has a duty to communicate to the Court the death of a party. The procedural law of Order 22 Rule 10(A) of CPC is not an empty formality, the preeminent object of which is to expedite the administration of justice and to see that the same would not defeat by intrusion on technical procedural lapse.
26. Admittedly, respondent/plaintiff and appellants/ defendants are not related. In this background, the appellants/defendants were required to report the death. This is not done in the present case on hand. It is also trite law that contract between the Advocate and client brought by virtue of Order 3 Rule 4(1) of CPC would continue even after the death of a party, only for the purpose mentioned in Rule 10(A) of CPC. The appellants/defendants cannot be permitted to take advantage of their own mistake and inaction in not 40 informing the Court regarding death of defendant Nos.7, 11 and 12. All the defendants belong to a joint family and all the defendants together have filed one written statement and are represented by the same counsel. There is no conflict of interest inter se between the parties. The appellants/ defendants together are resisting the claim of respondent/plaintiff on the ground that time was the essence of contract. Even otherwise, the appellants/defendants cannot hold caveat for the deceased defendants. The legal heirs of deceased defendants are not before this Court questioning the decree on the ground that it is passed against a dead person. Even otherwise, since there is no conflict of interest and there was effective representation before the Court below and before this Court, we are of the view that the death of defendant Nos.7, 11 and 12 would not in any way invalidate the decree passed by the Court below. The contention raised by the appellants/defendants is not at all sustainable. 41 Accordingly, the point No.3 formulated above is answered in the negative.
27. On re-appreciation of the entire oral and documentary evidence on record, we do not find any legal infirmities or perversity in the conclusion arrived at by the Trial Court.
Accordingly, the appeal being devoid of merits is dismissed.
Sd/-
JUDGE Sd/-
JUDGE CA