Sri. M. Muniswamy vs M/S Gms Construction Pvt Ltd
2021 Latest Caselaw 155 Kant

                             1


      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
                                2


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)
                                3


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.

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

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

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

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

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

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

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

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

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?

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

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

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

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

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.

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

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

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

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

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.

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.

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

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:

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

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

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.

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

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

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

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

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

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

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

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

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

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.

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

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

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.

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