Karnataka High Court
T Govindaraju vs Dr S R Mamatha on 14 May, 2025
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NC: 2025:KHC:18276
RFA No. 650 of 2008
C/W RFA.CROB No. 1 of 2009
RFA.CROB No. 8 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MAY, 2025
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 650 OF 2008 (SP)
C/W
REGULAR FIRST APPEAL CROB. NO. 1 OF 2009 (SP),
REGULAR FIRST APPEAL CROB. NO. 8 OF 2009 (SP)
IN RFA NO 650 OF 2008
BETWEEN:
DR. S R MAMATHA,
AGED ABOUT 39 YEARS,
W/O DR. P MOHAN AND ONLY
DAUGHTER AND ISSUE OF
LATE SRI S.M.RAMESH,
R/AT NO.7, 14TH CROSS, 9TH MAIN,
N.S. PALYA, BTM LAYOUT SECOND
STAGE, BANGALORE-560 070.
...APPELLANT
Digitally signed (BY SRI K.C. SUDARSHAN, ADVOCATE)
by NANDINI R
Location: HIGH
COURT OF AND:
KARNATAKA
1. T GOVINDARAJ,
AGED ABOUT 59 YEARS,
S/O SRI. T.V. CHALAMAIAH,
R/AT NO.419/1, 5TH CROSS,
AMARJYOTHINAGAR, VIJAYANAGAR,
BANGALORE-560 040.
2. SMT. S R SUJAYALAKSHMI,
AGED ABOUT 59 YEARS,
W/O LATE SRI S M RAMESH,
R/WITH DR. S.R. MAMATHA,
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RFA No. 650 of 2008
C/W RFA.CROB No. 1 of 2009
RFA.CROB No. 8 of 2009
NO.7, 14TH CROSS, 9TH MAIN,
N.S. PALYA, BTM LAYOUT SECOND
STAGE, BANGALORE-560 038.
...RESPONDENTS
(BY SRI M S VARADARAJAN & SRI SANTOSH, ADVOCATE FOR
C/R1; SRI H SOMASHEKHARAIAH, ADVOCATE FOR R2)
THIS RFA IS FILED U/S.96 R/W O XLI R 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 26.2.2008
PASSED IN O.S.NO.8293/1997 ON THE FILE OF THE XVII
ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-16), DECREEING
THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.
RFA.CROB NO 1 OF 2009
BETWEEN:
T GOVINDARAJU,
AGED ABOUT 59 YEARS,
S/O SRI T V CHALAMAIAH,
R/A NO.419/1, 5TH CROSS,
AMARAJYOTHINAGAR,
VIJAYANAGAR,
BANGALORE-560 040
...CROSS OBJECTOR
(BY SRI M S VARADARAJAN & SRI SANTHOSH, ADVOCATES)
AND:
1. DR. S R MAMATHA,
AGED ABOUT 39 YEARS,
W/O DR. P MOHAN AND
ONLY DAUGHTER & ISSUE
OF LATE SRI S M RAMESH,
R/A NO.7, 14TH CROSS, 9TH MAIN,
N S PALYA, BTM LAYOUT SECOND
STAGE, BANGALORE-560 070.
2. SMT. SRI SUJAYALAKSHMI,
AGED ABOUT 59 YEARS,
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RFA No. 650 of 2008
C/W RFA.CROB No. 1 of 2009
RFA.CROB No. 8 of 2009
W/O LATE SRI S M RAMESH,
R/WITH DR. S R MAMATHA,
NO.7, 14TH CROSS, 9TH MAIN,
N S PALYA, BTM LAYOUT SECOND
STAGE, BANGALORE-560 038.
...RESPONDENTS
(BY SRI K.C. SUDARSHAN, ADVOCATE FOR R1 & R2)
THIS RFA.CROB IS FILED (IN RFA.650/08) U/O.41 RULE
22 CPC AGAINST THE JUDGMENT AND DECREE DATED
26.2.2008 PASSED IN O.S.NO.8293/1997 ON THE FILE OF THE
XVII ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-16),
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF
CONTRACT & CROSS OBJECTOR HEREIN IS PREFERRING THIS
CROB, TO SET ASIDE THE PART OF THE JUDGEMENT AND
DECREE IN SO FAR AS IT HAS AWARDED INTEREST TO THE
DEFENDANTS AT 6% P.A ON THE BALANCE CONSIDERATION
AMOUNT AND ALSO IN SO FAR AS IT HAS REFUSED COSTS OF
THE SUIT TO THE PLAINTIFF BY ALLOWING THIS CROSS
OBJECTION.
IN RFA.CROB NO 8 OF 2009
BETWEEN:
SMT. S R SUJAYALAKSHMI,
AGED ABOUT 59 YEARS,
W/O LATE S M RAMESH,
R/AT NO 7, 14TH CROSS,
9TH MAIN, N S PALYA,
BTM LAYOUT 2ND STAGE,
BANGALORE-560 038.
... CROSS OBJECTOR
(BY SRI P H RAMALINGAM & SRI T.S VIJAYAKUMAR,
ADVOCATES)
AND:
1. T GOVINDRAJ,
AGED ABOUT 59 YEARS,
S/O SRI T V CHALAMAIAH,
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RFA No. 650 of 2008
C/W RFA.CROB No. 1 of 2009
RFA.CROB No. 8 of 2009
R/AT NO 419/1, 5TH CROSS,
AMARJYOTHINAGAR, VIJAYANAGAR,
BANGALORE-560 040.
2. DR. S R MAMATHA,
AGED ABOUT 39 YEARS,
W/O DR. P MOHAN,
D/O LATE SRI S M RAMESH,
R/AT NO 7,14TH CROSS, 9TH MAIN,
N S PALYA, BTM LAYOUT 2ND
STAGE, BANGALORE-560 070.
...RESPONDENTS
(BY SRI M.S. VARADARAJAN, ADVOCATE FOR R1;
SRI K.C. SUDARSHAN, ADVOCATE FOR R2)
THIS RFA.CROB IS FILED IN RFA NO. 650/2008 U/O XLI
R1, 22, 33 R/W S 151 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 26.2.2008, PASSED IN OS.NO. 8293/1997, ON
THE FILE OF THE XVII ADDL.CITY CIVIL JUDGE, BANGALORE,
DECREEING THE SUIT BY GRANTING THE RELIEF OF SPECIFIC
PERFORMANCE OF CONTRACT AND DIRECTING THE
DEFENDANT NO.1 (CROSS-OBJECTOR) AND DEFENDANT NO.2
THEREIN TO EXECUTE THE SALE DEED IN FAVOUR OF THE
PLAINTIFF THEREIN AND THE CROSS-OBJECTOR HEREIN
PRAYS TO SET ASIDE THE ABOVE JUDGMENT AND DECREE IN
SO FAR AS THE INTEREST OF THE CROSS-
OBJECTOR/DEFENDANT NO.1 IN THE PROPERTY.
THE APPEAL AND CROSS OBJECTIONS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
CAV JUDGMENT
Being aggrieved by the judgment and decree in
O.S.No.8293/1997 passed by learned XVII Additional City
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Civil and Sessions Judge, Bengaluru (CCH-16), the
defendant No.2 is in appeal before this Court. Aggrieved
by the said judgment, the plaintiff has filed Cross
Objection No.1/2009 and defendant No.1 has filed Cross
Objection No.8/2009.
2. For the sake of convenience, the parties would
be referred to as per their rank in O.S.No.8293/1997
before the trial Court.
3. The plaintiff - T.Govindaraj filed a suit for
specific performance of Agreement of Sale entered
between himself and defendants. The facts leading to this
appeal and Cross Objections are as below:
a) Defendant Nos.1 and 2 are wife and daughter of
one S.M.Ramesh. They along with S.M.Ramesh executed a
Sale Agreement in favour of the plaintiff on 02.12.1991
agreeing to sell the suit schedule property for a
consideration of Rs.10,76,000/-. A sum of Rs.2,01,000/-
was received by them as advance agreeing to execute the
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Sale Deed and to handover the vacant possession of the
same. The suit schedule property had fallen to the share of
S.M.Ramesh and defendant No.2 in a registered family
Partition dated 01.03.1990. The said S.M.Ramesh died on
26.02.1992 leaving behind defendant Nos.1 and 2 as his
legal heirs.
b) The suit schedule property consisted of three
tenements occupied by three tenants. As per the terms
and conditions of Agreement of Sale, the defendants were
liable to handover the vacant possession of the suit
schedule property to the plaintiff at the time of registration
of the Sale Deed. Since they could not get the tenants
evicted, a fresh Agreement was entered into between the
plaintiff and defendant Nos.1 and 2 on 30.05.1992
reiterating the terms and conditions which were
incorporated in the earlier Agreement dated 02.12.1991.
c) Thereafter, again a third renewal Sale
Agreement came into existence between the plaintiff and
defendants reiterating earlier conditions on 26.05.1995.
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d) Defendant No.2 as joint owner of the suit
schedule property filed HRC Nos.849/1992, 850/1992 and
851/1992 against the tenants before the Small Causes
Court, Bengaluru, which came to be allowed on
20.04.1996. The tenants filed Revision before this Court in
HRRP Nos.1058/1996, 1059/1996 and 1035/1996. Two of
them were dismissed at the time of the admission stage
on 09.09.1996 by granting further time to the tenants to
vacate the property. The other one was dismissed on
10.12.1996 granting 30 months time to the tenant to
vacate the property. Accordingly, all the three tenants
vacated the suit schedule property on 10.09.1997 and
11.09.1997.
e) All the while, the plaintiff was actively following
the eviction proceedings and after the tenants vacated,
approached the defendants expressing his ready and
willingness to pay the balance consideration amount and
to get the Sale Deed executed. Defendant No.2 was
working at Aravind Eye Hospital, Madurai, Tamilnadu. In
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order to get more price to the property, defendant Nos.1
and 2 did not respond to the requests of the plaintiff.
Therefore, the plaintiff got issued a Legal notice dated
22.09.1997 to the defendants calling upon them to
execute the Sale Deed by receiving the balance sale
consideration amount. Defendant No.1 issued a reply
denying the request made by the plaintiff and defendant
No.2 did not receive the notice.
f) The plaintiff having no other alternative
remedy, filed the suit for Specific Performance of Contract
of Agreement of Sale dated 02.12.1991, Renewal
Agreement dated 26.05.1995, expressing his ever ready
and willingness to perform his part of the contract. On
these grounds, the plaintiff sought for a decree of specific
performance of the Agreement of Sale.
appeared before the trial Court and filed their separate
written statements. Defendant No.1 took up the
contentions as below:
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a) She admitted that she along with her husband
S.M.Ramesh and defendant No.2 entered into an
Agreement of Sale on 02.12.1991 agreeing to sell the suit
schedule property for Rs.10,76,000/-. She also admitted
that on that day, she has received Rs.1,00,000/- by way
of cheque but denied that a sum of Rs.2,00,000/- was
received on that day. She also admitted that the suit
schedule property was allotted to S.M.Ramesh and
defendant No.2 under a registered Partition Deed dated
01.03.1990. She admitted that as per the Sale Agreement,
the sale transaction was to be completed within 06 months
from the date of the Agreement.
b) She admitted that on 02.01.1992, plaintiff had
paid a sum of Rs.1,00,000/- by way of cheque. She also
admitted that defendant Nos.1 and 2 after the death of
S.M.Ramesh on 26.02.1992, entered into a further Sale
Agreement dated 30.05.1992 at the request of the
plaintiff. She also admitted that 06 months time was fixed
for completion of the sale transaction.
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c) She contends that the plaintiff did not show any
interest to pay the balance consideration amount and to
get the Sale Deed executed despite the defendants
approached the plaintiff several times. Thus, she denies
the ready and willingness of the plaintiff to pay the
balance consideration amount and get the Sale Deed
executed in his favour. Six months time fixed under the
Agreement dated 30.05.1992 expired on 30.11.1992.
d) Defendant No.1 alleged that the plaintiff had
represented to her that he was in financial problem and
had requested time for arranging the funds.
e) It is stated that on 26.05.1995, the plaintiff
approached her and requested to renew the Sale
Agreement and on 'humanitarian grounds', she signed the
Agreement granting some more time of six months to the
plaintiff to arrange funds. Even then, the plaintiff has not
come forward to pay the balance sale consideration
amount and therefore, the Agreement dated 26.05.1995
also expires on 26.11.1995 and as such, the suit filed by
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the plaintiff is liable to be dismissed. Rest of the
contentions of the plaint is denied by her.
5. Defendant No.2 in her written statement took
up similar contentions as that of defendant No.1. In
addition to the contentions taken up by defendant No.1,
she took up the contentions as below:
a) The eviction petitions filed by defendant No.2
against the tenants is for demolition, reconstruction and
her bonafide use and occupation. Therefore, the eviction
petitions are in no way connected to the plaintiff.
b) After expiry of the time stipulated in the
Renewal Sale Agreement dated 30.05.1992, she has not
executed any Agreement and she is not a party to the
alleged agreement dated 26.05.1995, as such, it is not
binding on her and therefore, plaintiff has no right to file
the present suit against defendant No.2.
c) Denying that the plaintiff was ready and willing
to perform his part of the contract and that he had
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approached defendant No.1 requesting execution of the
Sale Deed, she has reiterated the contentions taken up by
defendant No.1 and sought for dismissal of the suit. She
contended that the defendants had no intention to sell the
suit schedule property either to the plaintiff or any other
person.
6. On the basis of the above contentions, the trial
Court framed the following:
ISSUES
"1. Whether the plaintiff proves that he is ever
ready and willing to perform his part of
contract?
2. Whether the plaintiff proves that he is entitle for
specific performance of the agreement of sale?
3. Whether the defendants prove that the suit is
barred by limitation?
4. What Order or decree?"
7. The plaintiff was examined as PW.1 and Exs.P1
to 9 were marked. Defendant Nos.1 and 2 were examined
as DWs.1 and 2 and Exs.D1 to 11 were marked on their
behalf. After hearing the arguments by both the sides, the
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trial Court decreed the suit and directed the defendants to
execute the Sale Deed in respect of the suit schedule
property in favour of the plaintiff and also directed the
plaintiff to pay the balance sale consideration
Rs.8,75,000/- with interest at 6% per annum from the
date of filing of the suit.
8. Being aggrieved by the same, defendant No.2 is
in appeal and defendant No.1 and plaintiff have filed
cross-objections.
9. On appeal being admitted, the trial Court
records have been secured. The records reveal that the
plaintiff had deposited the amount as per the decree
before the trial Court and later, as per the order of this
Court dated 26.11.2008, the deposited amount was
withdrawn by him.
10. The arguments by learned counsel appearing
for the appellant and the respondents/cross-objectors
were heard.
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11. The learned counsel appearing for the
appellant/defendant No.2 in his arguments submitted that
the Agreement was dated 02.12.1991 and later, the father
of defendant No.2, S.M.Ramesh died on 26.02.1992.
Thereafter, the said Agreement came to be renewed by an
Agreement dated 30.05.1992 (Ex.P2). Under the said
Agreement, the time for performance of the contract was
extended by six months. He points out that as per Exs.P3
and P4, the HRC proceedings were initiated and they came
to an end in HRRP before the Hon'ble High Court of
Karnataka on 09.09.1996 and 10.12.1996. The possession
was obtained by defendant No.2 later in pursuance to the
order passed by this Court in the Revision Petitions. He
submits that Ex.P9-Renewal Agreement dated 26.05.1995
was executed only by defendant No.1 and the appellant
herein was not a signatory to it. Therefore, Ex.P9-Renewal
Agreement cannot be made binding to the appellant
herein.
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12. He argues that the notice issued to the
defendants by the plaintiff dated 22.09.1997 says that the
sale consideration is already paid, whereas, the actual
amount paid by the plaintiff was only to the extent of
Rs.2,01,000/- only. He also points out that in Ex.P6, reply
notice issued by defendant No.1 dated 04.10.1997, the
right of the plaintiff to enforce the contract was cancelled
and the advance amount was forfeited. Therefore, the turn
of events which have been evidenced by various
documents clearly show that the defendants had cancelled
the said agreement. He further points out that the counsel
for the plaintiff Sri N.U.Narasimhan was the counsel for
defendant No.2 in the HRC proceedings. Though the
plaintiff sought to examine the said counsel Sri
N.U.Narasimhan as PW.2, later it was chosen not to
examine him and his evidence came to be expunged.
Therefore, it is contended that it was the said Sri
N.U.Narasimhan who in fact had drafted the renewal
agreement dated 26.05.1995 (Ex.P9) and had obtained
the signature of defendant No.1. It is contended that
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defendant No.2, the appellant herein had not at all signed
the Ex.P9 and therefore, at no stretch of imagination it can
bind her. It is his argument that the DW.1 i.e. defendant
No.1 was unaware about the English as stated by her in
her affidavit and her position as a widow was misused by
the plaintiff and his counsel. Therefore, he submits that in
the absence of the appellant/defendant No.2 being a
signatory to Ex.P9, at no stretch of imagination it can bind
the appellant. It is pointed out that the approach of the
trial Court in holding that there was no such conflict of
interest between defendant Nos.1 and 2 and therefore,
Ex.P9 is binding on defendant No.2 is an erroneous
proposition. The trial Court says that defendant No.2
consented for Ex.P9 and therefore, she is estopped from
denying Ex.P9. This proposition of the trial Court is based
on surmises and conjectures and the inferences drawn are
totally incorrect.
13. He further points out that the suit was barred
by limitation. He contend that by Agreement dated
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30.05.1992, the time for performance of the contract was
extended by only six months and therefore, the suit
having been filed in the year 1997 is not within time. He
points out that Exs.P1 and P2 show unequivocally that the
time was essence of the contract. When defendant Nos.1
and 2 consciously extended the time by six months under
Ex.P2, it was for the plaintiff to perform his part of the
contract by paying the balance amount of the sale
consideration and come forward to get the Sale Deed
executed. It is pointed out that the suit is filed by the
plaintiff in the year 1997 under the premise that the
possession of the property was obtained in pursuance to
the disposal of the House Rent Revision Petitions before
the Hon'ble High Court is erroneous.
14. He further contends that the ready and
willingness of the plaintiff to perform his part of the
contract was not established. He submits that the first
Agreement came into existence on 02.12.1991 and the
second Agreement was executed by defendant Nos.1 and
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2 on 30.05.1992 after the death of the father of the
appellant on 26.02.1992. Thereafter, there is no Iota of
evidence to show that the plaintiff was ready and willing to
perform his part of the contract until a legal notice was
issued by him as per Ex.P5 on 22.09.1997. Therefore, the
conduct of the plaintiff clearly establishes that he failed to
show his ready and willingness in performing his part of
the contract. Therefore, he contends that the conclusions
of the trial Court that the suit is within time and the
plaintiff had proved the ready and willingness is totally
perverse and needs interference by this Court.
15. Learned counsel appearing for the appellant
places reliance on the judgment in the case of
HUTCHEGOWDA Vs. H.M.BASAVIAH1 to contend that
the suit is barred by time. He also relied on the judgment
in the case of MAN KAUR Vs. HARTAR SINGH
SANGHA2 regarding ready and willingness. He also relied
AIR 1954 MYSURU 29
(2010) 10 SCC 512
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on the judgment in the case of K.KARUPPURAJ Vs.
M.GANESAN3.
16. Learned counsel appearing for defendant No.1,
who is a cross-objector in RFA.Crob.No.8/2009 submit that
the cross-examination of PW.1 show that there was
misuse of the status of the widowhood of defendant No.1.
He submit that Ex.P9 was got signed by the plaintiff under
the misrepresentation to defendant No.1 during the
absence of her daughter. He also points out that the
learned advocate who was appearing for the plaintiff,
Sri N.U.Narasimhan was the person who drafted Ex.P9 and
defendant No.1 believed the lawyer and therefore, she
signed it. When she was unable to read English, it was
necessary for the plaintiff to prove Ex.P9 in accordance
with law. He points out that the cross-examination of PW.1
show that Ex.P9 came into existence under the suspicious
circumstances. Regarding Ex.P9, he submits that
defendant No.1 has established that the said agreement
(2021) 10 SCC 777
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came into existence under suspicious circumstances and
the pleadings show that it is something near to fraud that
was played but however concede that the contention of
the fraud and misrepresentation was not specifically
mentioned in the pleadings and the evidence.
17. He further contends that Exs.P1 and P2
unequivocally mention that the time for performance of
the contract was six months; the eviction of the tenants
cannot be the cause of action; eviction of the tenants was
not the criteria for performance of the contract of
agreement of sale. Therefore, he submits that the tenure
of Exs.P1 and P2 show that the time fixed for performance
being six months, it could not have been construed to be
the time subsequent to the eviction of the tenants from
the suit property.
18. Per contra, Sri M.S.Varadarajan, learned
counsel appearing for the plaintiff/Cross-Objector in
RFA.Crob.No.1/2009 contends that at the time of Exs.P1
and P2, one Sri.Venkataramanappa was the Advocate for
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the plaintiff. Only when the HRC proceedings were initiated
against the tenants, learned counsel Sri N.U.Narasimhan
came into picture. Thereafter, the parties felt a need for
Ex.P9 and therefore, Sri N.U.Narasimhan being the
Advocate was consulted and he had drafted Ex.P9. The
said advocate died in the year 2006. Therefore, the
conduct of learned counsel Sri N.U.Narasimhan cannot be
in any way read as adverse to the interest of the plaintiff.
It may be true that Ex.P9 was drafted by
Sri N.U.Narasimhan but then he was representing
defendant No.2 in the HRC proceedings. The said counsel
Sri N.U.Narasimhan had drafted Ex.P9 and had presented
the same to the parties, which was signed by the plaintiff
and defendant No.1. Then he submits that the written
statement of defendant No.1 show that she admits Ex.P9
but says that it was signed on 'humanitarian grounds'.
Since it was a renewal of an earlier Agreement of Sale, the
question of humanitarian ground do not come into picture
and prevail in the matter. Defendant No.2, however denies
Ex.P9. But both the defendants do not allege fraud,
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mysterious circumstances and misrepresentation in their
pleadings and therefore, Ex.P9 cannot be brushed aside.
19. Then he submits that the time stipulated in
Exs.P1, P2 and P9 was six months from the date of
Agreement or six months from the date of evicting the
tenants. In this regard, he relies on the clauses in Ex.P1
and submits that the time for performance was six months
from the date of eviction of the tenants. It is vehemently
contended that unless the defendants could handover the
vacant possession of the suit schedule property to the
plaintiff, the execution of the Sale Deed could not have
been enforced by the plaintiff.
20. He further points out that though DW.1 say that
she does not know English but she has signed Exs.P1 and
P2 also in English. There is no suggestion in the cross-
examination of the plaintiff by the learned counsel for
defendant No.1 regarding fraud or misrepresentation. In
other words, defendant No.1 categorically admits Ex.P9.
On the other hand, defendant No.1 admits that the
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eviction of the tenants is a time fixed for execution of the
Sale Deed. Therefore, when a harmonious construction of
the clauses in the Agreement is made, it shows that the
time fixed was to be read as six months after the eviction
of the tenants. He contends that the parties have
understood that the time fixed for execution of the Sale
Deed is within six months from the date of eviction and
that is why the Exs.P2 and P9 were executed by defendant
No.1.
21. He contends that defendant No.2 - Dr. S.R.
Mamatha was a student at Medical College at Hubli during
her post graduation. Later, she changed her residence to
Madurai, while working at Arvind Eye Hospital. During her
absence, defendant No.1 signed Ex.P9. The cross-
examination of defendant No.1 shows that she had
showed Ex.P9 to defendant No.2. Even then, defendant
No.2 kept silent and she did not question to the plaintiff
about Ex.P9. Defendant No.2 should have resisted Ex.P9,
when she says that she did not intend to sell the suit
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schedule property after the six months of execution of the
Ex.P2. The silence of defendant No.2 should be read as an
estoppel preventing her to contend that she was unaware
of Ex.P9. On the contrary, the affidavit evidence of
defendant No.2 shows that the plaintiff was keenly
watching the eviction proceedings of the tenants. This
shows that the plaintiff was diligent in seeing that the
tenants are evicted. There was no conflicting interest
between defendant Nos.1 and 2. Defendant No.2 had
come to know about Ex.P9, she had read it and therefore,
Defendant No.2 had given implied consent to Ex.P9 by not
denying it despite she coming to know about it. Defendant
No.2 at no point of time had repudiated the Ex.P9 after
knowing that Defendant No.1 had signed it.
22. He points to Clause Nos.4 and 6 of the
Agreement at Ex.P1 and contends that there was no delay
or laxity on the part of the plaintiff after the tenants were
evicted from the suit schedule property in making his
claim for specific performance and therefore, he
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immediately issued a legal notice and the notice having
been replied as per Ex.P6 denying the liability to execute
the Sale Deed, he was constrained to file the suit.
Therefore, in the conspectus of the things, he submits that
the silence of defendant No.2 after coming to know about
Ex.P9 and the admission of the DW.1 about Exs.P1, P2 and
P9 clearly establish that the time was not the essence of
the contract but eviction of the tenants from the suit
schedule property was the criteria to go ahead with the
execution of the Sale Deed. Therefore, he contends that at
no stretch of imagination the suit can be held to be barred
by limitation and that the plaintiff has established that he
was always ready and willing to perform his part of the
contract.
23. Learned counsel for plaintiff/Cross objector
relied on the judgment in the cases of ALAGAMMAL AND
OTHERS Vs. GANESAN AND ANOTHER4, L.
KRISHNOJI RAO Vs. AGARBATHI WORKERS HOUSE
(2024) 3 SCC 232
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BUILDING CO-OPERATIVE SOCIETY LTD5,
BASAVARAJ Vs. PADMAVATHI AND ANOTHER6,
P.RAMASUBBAMMA VS. V.VIJAYALAKSHMI AND
OTHERS7.
24. In his reply, the learned counsel appearing for
the appellant/defendant No.2 submits that DW.1 has
stated that there was no conflict with defendant No.2 in
the context of the HRC proceedings. He points out that
DW.1 was owner to the extent of 25% and defendant No.2
was owner to the extent of 75% of the suit schedule
property. When majority shareholder has not subscribed to
Ex.P9, it is not binding on the parties. In this regard, he
relies on the judgment in the case of HUTCHEGOWDA
(referred supra) to contend that Article 113 of the
Limitation Act contemplates two kinds of cases and in the
first one, the time for performance is fixed in a contract
itself and in the other, it is not so fixed. Though the word
date is used in the Article, it should not be taken that the
2011 SCC ONLINE KAR 3914
(2023) 4 SCC 239
AIR 2022 SC 1793
- 27 -
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particular date should specifically be stated in the
Agreement. In fact, even if the time of performance
cannot be ascertained at the time of the Agreement itself
but can be ascertained at the time of performance, it may
be said to be a case where the dates are fixed for
performance of the contract. Based on this, he submits
that the time for performance of the contract is six months
and there being no mandatory clause in the Agreement
that the tenants are to be evicted before execution of the
Sale Deed, the suit is barred by time.
25. The learned counsel for the appellant also
places reliance on the judgment regarding ready and
willingness in the case of MAN KAUR (referred supra), re
where it was held that :
"...the assumption that readiness and willingness
on the part of the plaintiff is something which need
not be proved, if the plaintiff is able to establish that
the defendant refused to execute the sale deed and
thereby, committed breach is not correct. Take a case
where there is a contract for sale for a consideration
of Rs.10,00,000/- and the earnest money of
- 28 -
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Rs.1,00,000/- was paid and the vendor wrongly
refuses to execute the sale deed unless the purchaser
is ready to pay Rs.15,00,000/-. In such a case, there
is a clear breach of the contract by the defendant but
in that case, the plaintiff did not have the balance of
Rs.9,00,000/- and the money required for stamp duty
and registration or the capacity to arrange and pay
such money when the contract had to be performed,
the plaintiff will not be entitled to specific performance
even if he proves breach by the defendant."
26. He also relies on the judgment in the case of
K.KARUPPURAJ (referred supra), where in paragraph
No.12 and 14 held as below:
"12. It is required to be noted that as per the
case of the original plaintiff, the defendant was
required to evict the tenants and hand over the
physical and vacant possession at the time of
execution of the sale deed on payment of full sale
consideration. Even in the suit notice issued by the
plaintiff, the plaintiff called upon the defendant to
evict the tenants and thereafter execute the sale
deed on payment of full consideration from the
plaintiff. Even when we consider the pleadings and
the averments in the plaint, it appears that the
plaintiff was never willing to get the sale deed
executed with tenants and/or as it is. It was the
- 29 -
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insistence on the part of the plaintiff to deliver the
vacant possession after evicting the tenants.
Therefore, on the basis of the pleadings in the plaint
and on appreciation of evidence, the learned trial
court held the issue of willingness against the
plaintiff. However, before the High Court, the plaintiff
filed an affidavit stating that he is now ready and
willing to get the sale deed executed with respect to
the property with tenants and unfortunately, the
High Court relying upon the affidavit in the first
appeal considered that as now the plaintiff is ready
and willing to purchase the property with tenants
and get the sale deed executed with respect to the
property in question with tenants, the High Court has
allowed the appeal and decreed the suit for specific
performance.
xxxxx
14. The learned trial court held the issue of
willingness against the plaintiff by giving cogent
reasons and appreciation of evidence and
considering the pleadings and averments in the
plaint. We have also gone through the averments
and the pleadings in the plaint and on considering
the same, we are of the opinion that the learned trial
court was justified in holding the issue of willingness
against the plaintiff. The plaintiff was never ready
and willing to purchase the property and/or get the
sale deed executed of the property with tenants. It
- 30 -
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was for the first time before the High Court in the
affidavit filed before the High Court and subsequently
when the learned trial court held the issue of
willingness against the plaintiff, the plaintiff came
out with a case that he is ready and willing to
purchase the property with tenants. For the purpose
of passing the decree for specific performance, the
plaintiff has to prove both the readiness and
willingness. Therefore, once it is found on
appreciation of evidence that there was no
willingness on the part of the plaintiff, the plaintiff is
not entitled to the decree for specific performance.
Therefore, in the present case, the learned trial court
was justified in refusing to pass the decree for
specific performance."
27. Obviously, in the above case, in the first
instance, there was no discernible evidence on ready and
willingness and the procedure adopted by the High Court
in accepting the affidavit was erroneous. The plaintiff had
come forward to purchase the property along with the
tenants. Thus the facts can be distinguished very well.
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28. Learned counsel Sri M.S.Varadarajan has placed
reliance on the judgment in the case of ALAGAMMAL
(referred supra), wherein paragraph No.36 reads under:
"36. The relevant paragraphs from K.S.
Vidyanadam v. Vairavan, [(1997) 3 SCC 1] read as
under:
'10. It has been consistently held by the courts in
India, following certain early English decisions, that in
the case of agreement of sale relating to immovable
property, time is not of the essence of the contract
unless specifically provided to that effect. The period
of limitation prescribed by the Limitation Act for filing
a suit is three years. From these two circumstances, it
does not follow that any and every suit for specific
performance of the agreement (which does not
provide specifically that time is of the essence of the
contract) should be decreed provided it is filed within
the period of limitation notwithstanding the time-limits
stipulated in the agreement for doing one or the other
thing by one or the other party. That would amount to
saying that the time-limits prescribed by the parties in
the agreement have no significance or value and that
they mean nothing. Would it be reasonable to say that
because time is not made the essence of the contract,
the time-limit(s) specified in the agreement have no
- 32 -
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relevance and can be ignored with impunity? It would
also mean denying the discretion vested in the court
by both Sections 10 and 20. As held by a Constitution
Bench of this Court inChand Rani v. Kamal
Rani [Chand Rani v. Kamal Rani, (1993) 1 SCC 519] :
(SCC p. 528, para 25)
'25. ... it is clear that in the case of sale of
immovable property there is no presumption as
to time being the essence of the contract. Even
if it is not of the essence of the contract, the
Court may infer that it is to be performed in a
reasonable time if the conditions are (evident?):
(1) from the express terms of the contract;
(2) from the nature of the property; and
(3) from the surrounding circumstances, for
example,
the object of making the contract.'
In other words, the court should look at all the
relevant circumstances including the time-limit(s)
specified in the agreement and determine whether its
discretion to grant specific performance should be
exercised. Now in the case of urban properties in
India, it is well-known that their prices have been
going up sharply over the last few decades --
particularly after 1973 [ It is a well-known fact that
the steep rise in the price of oil following the 1973
- 33 -
NC: 2025:KHC:18276
Arab-Israeli war set in inflationary trends all over the
world. Particularly affected were countries like who
import bulk of their requirement of oil.] . In this case,
the suit property is the house property situated in
Madurai, which is one of the major cities of Tamil
Nadu. The suit agreement was in December 1978 and
the six months' period specified therein for completing
the sale expired with 15-6-1979. The suit notice was
issued by the plaintiff only on 11-7-1981 i.e. more
than two years after the expiry of six months' period.
The question is what was the plaintiff doing in this
interval of more than two years? The plaintiff says that
he has been calling upon Defendants 1 to 3 to get the
tenant vacated and execute the sale deed and that the
defendants were postponing the same representing
that the tenant is not vacating the building. The
defendants have denied this story. According to them,
the plaintiff never moved in the matter and never
called upon them to execute the sale deed. The trial
court has accepted the defendants' story whereas the
High Court has accepted [Vairavan v. K.S.
Vidyanandam, 1995 SCC OnLine Mad 105] the
plaintiff's story. Let us first consider whose story is
more probable and acceptable. For this purpose, we
may first turn to the terms of the agreement. In the
agreement of sale, there is no reference to the
existence of any tenant in the building. What it says is
that within the period of six months, the plaintiff
- 34 -
NC: 2025:KHC:18276
should purchase the stamp papers and pay the
balance consideration whereupon the defendants will
execute the sale deed and that prior to the
registration of the sale deed, the defendants shall
vacate and deliver possession of the suit house to the
plaintiff. There is not a single letter or notice from the
plaintiff to the defendants calling upon them to get the
tenant vacated and get the sale deed executed until
he issued the suit notice on 11-7-1981. It is not the
plaintiff's case that within six months', he purchased
the stamp papers and offered to pay the balance
consideration. The defendants' case is that the tenant
is their own relation, that he is ready to vacate at any
point of time and that the very fact that the plaintiff
has in his suit notice offered to purchase the house
with the tenant itself shows that the story put forward
by him is false. The tenant has been examined by the
defendant as DW 2. He stated that soon after the
agreement, he was searching for a house but could
not secure one. Meanwhile (i.e. on the expiry of six
months from the date of agreement), he stated, the
defendants told him that since the plaintiff has
abandoned the agreement, he need not vacate. It is
equally an admitted fact that between 15-12-1978
and 11-7-1981, the plaintiff has purchased two other
properties. The defendants' consistent refrain has
been that the prices of house properties in Madurai
have been rising fast, that within the said interval of
- 35 -
NC: 2025:KHC:18276
2½ years, the prices went up three times and that
only because of the said circumstance has the plaintiff
(who had earlier abandoned any idea of going forward
with the purchase of the suit property) turned round
and demanded specific performance. Having regard to
the above circumstances and the oral evidence of the
parties, we are inclined to accept the case put forward
by Defendants 1 to 3. We reject the story put forward
by the plaintiff that during the said period of 2½
years, he has been repeatedly asking the defendants
to get the tenant vacated and execute the sale deed
and that they were asking for time on the ground that
tenant was not vacating. The above finding means
that from 15-12-1978 till 11-7-1981 i.e. for a period
of more than 2½ years, the plaintiff was sitting quiet
without taking any steps to perform his part of the
contract under the agreement though the agreement
specified a period of six months within which he was
expected to purchase stamp papers, tender the
balance amount and call upon the defendants to
execute the sale deed and deliver possession of the
property. We are inclined to accept the defendants'
case that the values of the house property in Madurai
town were rising fast and this must have induced the
plaintiff to wake up after 2½ years and demand
specific performance.
- 36 -
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11. Shri Sivasubramaniam cited the decision of the
Madras High Court in S.V. Sankaralinga
Nadar v. P.T.S. Ratnaswamy Nadar [S.V. Sankaralinga
Nadar v. P.T.S. Ratnaswamy Nadar, 1951 SCC OnLine
Mad 217 : AIR 1952 Mad 389] holding that mere rise
in prices is no ground for denying the specific
performance. With great respect, we are unable to
agree if the said decision is understood as saying that
the said factor is not at all to be taken into account
while exercising the discretion vested in the court by
law. We cannot be oblivious to the reality -- and the
reality is constant and continuous rise in the values of
urban properties -- fuelled by large-scale migration of
people from rural areas to urban centres and by
inflation. Take this very case. The plaintiff had agreed
to pay the balance consideration, purchase the stamp
papers and ask for the execution of sale deed and
delivery of possession within six months. He did
nothing of the sort. The agreement expressly provides
that if the plaintiff fails in performing his part of the
contract, the defendants are entitled to forfeit the
earnest money of Rs 5000 and that if the defendants
fail to perform their part of the contract, they are
liable to pay double the said amount. Except paying
the small amount of Rs 5000 (as against the total
consideration of Rs 60,000) the plaintiff did nothing
until he issued the suit notice 2½ years after the
agreement. Indeed, we are inclined to think that the
- 37 -
NC: 2025:KHC:18276
rigour of the rule evolved by courts that time is not of
the essence of the contract in the case of immovable
properties -- evolved in times when prices and values
were stable and inflation was unknown -- requires to
be relaxed, if not modified, particularly in the case of
urban immovable properties. It is high time, we do so.
The learned counsel for the plaintiff says that when
the parties entered into the contract, they knew that
prices are rising; hence, he says, rise in prices cannot
be a ground for denying specific performance. May be,
the parties knew of the said circumstance but they
have also specified six months as the period within
which the transaction should be completed. The said
time-limit may not amount to making time the
essence of the contract but it must yet have some
meaning. Not for nothing could such time-limit would
have been prescribed. Can it be stated as a rule of law
or rule of prudence that where time is not made the
essence of the contract, all stipulations of time
provided in the contract have no significance or
meaning or that they are as good as non-existent? All
this only means that while exercising its discretion,
the court should also bear in mind that when the
parties prescribe certain time-limit(s) for taking steps
by one or the other party, it must have some
significance and that the said time-limit(s) cannot be
ignored altogether on the ground that time has not
- 38 -
NC: 2025:KHC:18276
been made the essence of the contract (relating to
immovable properties).
***
13. In the case before us, it is not mere delay. It is
a case of total inaction on the part of the plaintiff for
2½ years in clear violation of the terms of agreement
which required him to pay the balance, purchase the
stamp papers and then ask for execution of sale deed
within six months. Further, the delay is coupled with
substantial rise in prices -- according to the
defendants, three times -- between the date of
agreement and the date of suit notice. The delay has
brought about a situation where it would be
inequitable to give the relief of specific performance to
the plaintiff.'
(emphasis supplied)"
29. He also placed reliance on the judgment in the
case of L. KRISHNOJI RAO (referred supra), wherein
relevant paragraphs read as under:
"35. Before we appreciate this contention of the
plaintiff, it is necessary to take note of the law on the
point. Article 54 of the Limitation Act, 1963 which
provides for limitation for specific performance of the
contract reads as under:--
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NC: 2025:KHC:18276
THE SCHEDULE PERIOD OF LIMITATION
Description Period of Time from which period
of suit limitation begins to run
54. For 3 years The date fixed for the
specific performance, or, if no
performan such date is fixed, when
ce of a the plaintiff has notice
contract. that performance is
refused.
36. The plea of limitation is a mixed question of law
and fact. The question as to whether a suit for specific
performance of contract will be barred by limitation or
not would not only depend upon the nature of the
agreement but also on the conduct of the parties and
also as to how they understood the terms and
conditions of the agreement.
37. The law on the point is well settled. The Apex
Court in the case of Panchanan Dhara v. Monmatha
Nath Maity (dead) through L.Rs. [(2006) 5 SCC 340]
held as under:--
"20.......A plea of limitation is a mixed
question of law and fact. The question as to
whether a suit for specific performance of
contract will be barred by limitation or not would
not only depend upon the nature of the
agreement but also on the conduct of the
parties and also as to how they understood the
- 40 -
NC: 2025:KHC:18276
terms and conditions of the agreement. It is not
in dispute that the suit for specific performance
of contract would be governed by Article 54 of
the Limitation Act, 1963. While determining the
applicability of the first or the second part of the
said provision, the Court will firstly see as to
whether any time was fixed for performance of
the agreement of sale and if it was so fixed,
whether the suit was filed beyond the prescribed
period unless any case of extension of time for
performance was pleaded and established.
When, however, no time is fixed for
performance of contract, the Court may
determine the date on which the plaintiff had
notice of refusal on the part of the defendant to
perform the contract and in that event the suit
is required to be filed within a period of three
years therefrom."
38. The Apex Court in the case of Gunwantbhai
Mulchand Shah v. Anton Elis Farel, (2006) 3 SCC 634
held as under:--
"8 ....... It was rightly noticed that the suit
was governed by Article 54 of the Limitation Act,
1963. Then, the enquiry should have been, first,
whether any time was fixed for performance in
the agreement for sale, and it was so fixed, to
hold that a suit filed beyond three years of the
- 41 -
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date was barred by limitation unless any case of
extension was pleaded and established. But in a
case where no time for performance was fixed,
the Court had to find the date on which the
plaintiff had notice that the performance was
refused and on finding that date, to see whether
the suit was filed within three years thereof. We
have explained the position in the recent
decision in R.K. Parvatharaj Gupta v. K.C.
Jayadeva Reddy [(2006) 2 SCC 428].....".
41. Chitty on Contract Vol. 1, 23rd Edn.,
paragraphs 694-95 points out that a term would be
implied if it is necessary in the business sense, to give
efficacy to the contract.
15. The next and the last contention that the
suit brought by the appellant was barred by
limitation is wholly devoid of substance. Under
Art. 113 of the Limitation Act, 1963, the
limitation prescribed for a suit for specific
performance is a period of three years which
runs from the date when the cause of action
accrues. In the facts and circumstances of the
case, the respondents were required to have a
conveyance executed immediately upon the
conferment of occupancy rights on the abolition
and the permission granted by the revenue
authorities to him to convert the suit land into
- 42 -
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village site. As already stated, the permission to
convert the disputed land into village site having
been obtained on August 26, 1958 insofar as a
part of the land admeasuring 1,000 square
yards and on September 10, 1959 as regards
the remaining portion, it could not be said that
the respondents' suit filed on September 6,
1960 was barred by limitation."
44. The law on the point is fairly well settled. The
suit for specific performance of contract would be
governed by Article 54 of the Limitation Act, 1963. For
specific performance of contract three years period
has been prescribed for filing a suit. But this three
years period has to be counted in the mode in the last
column, which is in two parts. The first part indicates
that, in case any date has been fixed for performance
of contract, in that event three years will be counted
from that date. But when there is no date fixed, the
second part will be applicable, which in substance is
that the period of three years would commence to run
when notice of performance is refused. The third
column shows that wherever a time is fixed for the
specific performance the first part of it would apply
and in other cases the second part. While determining
the applicability of the first or the second part of the
said provision, the Court will first see as to whether
any time was fixed for performance of the agreement
- 43 -
NC: 2025:KHC:18276
of sale and if it was so fixed, whether the suit was filed
beyond the prescribed period unless any case of
extension of time for performance was pleaded and
established. When, however, no time is fixed for
performance of contract, the Court may determine the
date on which the plaintiff had notice of refusal on the
part of the defendant to perform the contract and in
that event the suit is required to be filed within a
period of three years therefrom. The principle
underlying this article is that when the date is fixed
under the first part of column 3, limitation begins to
run forthwith as the date is certain, but where no such
time is fixed and where the party against whom the
limitation runs is not in a position to know of the
occurrence, of the contingency contemplated by the
contract, time begins to run only when he has notice
of the refusal of the performance. The expression
"date" used in Article 54 of the Schedule to the Act
definitely is suggestive of a specified date in the
calendar. "Date fixed for performance" does not mean
a precise date by calendar alone, but the same is
comprehensive enough to include a date which can be
ascertained with reference to an event certain to
happen. The phrase "the date fixed for the
performance" must be not only an identifiable date but
also a date which the parties intended should be the
date when the contract should be performed the
expression "date fixed" under this article means and
- 44 -
NC: 2025:KHC:18276
connotes the date expressly agreed to by the parties
in the covenant itself. Of course, where the time under
the contract is extended either expressly in writing or
by consent, then the new date substituted would be
the date fixed. Therefore, the date fixed for the
performance must be construed to mean not only the
date which can be identified, but also be a date which
the parties intended to be the date when the contract
should be performed. No doubt in the phrase "The
date fixed for performance" occurring in the first
clause is not merely referable to the "calendar date"
but also to any "other date in the calender" referable
to an event that may happen in future with certainty.
As to whether the words "date fixed" in the first part
of column 3, mean the date by, calendar or whether
they are comprehensive enough to include a date
which can be ascertained with reference to an event
certain to happen, the principle applicable is the
doctrine of id certum est quod certum reddi potest. It
means certainty need not be ascertained at the time;
for if, in the fluxion of time, a day will arrive which will
make it certain, that is sufficient. The requirement of
Article 54 is not that the actual day should necessarily
be ascertained upon the face of the deed, but that the
basis of the calculation which was to make it certain
should be found therein. "Date fixed" means thus
either the date fixed expressly or a date that can be
fixed with reference to a future event which is certain
- 45 -
NC: 2025:KHC:18276
to happen. When date is fixed it means that there is a
definite date fixed for doing a particular act."
30. He also placed reliance on the judgment in the
case of P.RAMASUBBAMMA (referred supra), wherein
paragraph No.19 reads as under:
"19. However, in the facts and circumstances of the
case narrated hereinabove and when the learned trial
court specifically gave the findings that Defendant 1--
vendor specifically admitted the execution of
agreement to sell dated 12-4-2005 in favour of the
plaintiff by accepting a substantial advance
consideration and that Defendant 2 was in the
knowledge of the agreement to sell and despite the
same, he sold the same in favour of Defendants 3 and
4, who are his sisters-in-law and that too the sale
deeds found to be nominal sale deeds, the learned
trial court as such rightly decreed the suit for specific
performance and also rightly declared that sale deeds
dated 3-5-2010 executed by original Defendant 2 in
favour of Defendants 3 and 4 are not binding upon the
plaintiff and Defendant 1. The High Court has
committed a grave error in reversing the judgment
and decree passed by the learned trial court by
ignoring the vital facts of the case which are either
admitted or proved in the instant case."
- 46 -
NC: 2025:KHC:18276
31. After hearing the arguments and in the light of
the above position of law, the points that arise for
consideration in this appeal and cross-objections are as
below:
(i) Whether the time was essence of the contract?
(ii) Whether the suit is barred by time?
(iii) Whether the plaintiff was always ready and willing to
perform his part of the contract?
(iv) Whether the judicial discretion exercised by the trial
Court and awarding 6% interest over the balance
sale consideration is proper?
Reg. Point Nos.1 and 2:
32. The question whether the suit is barred by time
is interlinked to Exs.P1, P2 and P9. The plaintiff contends
that the Agreement at Ex.P1 dated 02.12.1991 was signed
by defendant No.1 as GPA Holder of her husband-
S.M.Ramesh and also by defendant No.2 - S.R.Mamatha.
This aspect is not in dispute. Thereafter, the said
S.M.Ramesh died on 26.02.1992 is also not in dispute. The
fact that the plaintiff and defendant Nos.1 and 2 entered
- 47 -
NC: 2025:KHC:18276
into another Agreement of Sale dated 30.05.1992 is also
not in dispute. Defendant No.2 in her capacity as a joint
owner of the suit schedule property filed HRC
Nos.842/1992, 851/1992 and 850/1992 on 01.04.1992 is
also not in dispute. Defendant No.1 admits that she
executed a further agreement on 26.05.1995 and claims
that it was on humanitarian grounds. However, defendant
No.2 contend that she being not a signatory to the
Agreement at Ex.P9 dated 26.05.1995, contend that the
time fixed for performance of the contract was six months
from the admitted Agreement dated 30.05.1992 (Ex.P2)
and therefore, the suit filed in the year 1997 is barred by
limitation.
33. The perusal of Ex.P1 shows that in Clause 3, 4,
5 and 6 it read as below:
"3. ಉ ೆ ಕ ಯದ ಬಲಗನು ಕ ಮ ಾದ ಕ ಯಪತ ೋಂ ಾವ
ವಸದಂದು "ಾ#ಾಟ%ಾರ'%ೆ (ಾವ) "ಾಡಲು ಖ'ೕ ಾರರು
ಒ-. ೊಂ/ರು0ಾ1#ೆ.
4. ಕ ಮ ಾದ ಕ ಯಪತ ೋಂ ಾವ ಬ%ೆ3 ಇಂ 5ಂದ 6 (ಆರು) )ಂಗಳ8
ಾ9 ೆ 5ಗ:ಪ/ಸ;ಾ<ದು=, ಸದ' ಾ9 ೆಯ>? ಖ'ೕ ಾರರು ಕ ಯದ
- 48 -
NC: 2025:KHC:18276
@ಾA ಬಲಗನು "ಾ#ಾಟ%ಾರ'%ೆ (ಾವ) "ಾ/, ತಮ Bೆಸ'%ಾಗ>ೕ,
0ಾವC ಇDೆE ಪಡುವವರು Bೆಸ'%ಾಗ>ೕ, ತಮF ಖGH5ಂದ ಕ ಯಪತ
ೋಂ ಾ9I ೊಳJಲು ಒ-. ೊಂ/ರು0ಾ1#ೆ.
5. Lೕ;ೆ ) Iದಂ0ೆ 5ಗ:ತ ಾ9 ೆಯ>? ಖ'ೕ ಾರರು ಕ ಯದ @ಾA
ಬಲಗು ತಮ%ೆ ಸಂ ಾಯ "ಾ/ದ ಕೂಡ;ೇ ಸದ' ಖ'ೕ ಾರರ
Bೆಸ'%ಾಗ>ೕ, ಅವರು ಸೂGತಬಹು ಾದ ಅವರ ಾP5-ಪ )5:
ವ%ೈ#ೆಯವರ Bೆಸ'%ಾಗ>ೕ ಕ ಯಪತ ೋಂ ಾ9I ೊಡಲು
"ಾ#ಾಟ%ಾರರು ಬದS#ಾ<ರು0ಾ1#ೆ.
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ಕ ಯಪತ ೋಂ ಾವ %ೆ ಮುಂGತ ಾ< Xಾ>ೕ "ಾ/I, Xಾ>Yಾದ ಸ)1ನ
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34. The above clauses show that the Sale Deed has
to be executed within a period of six months, during which
time, the plaintiff has to pay the balance sale
consideration amount. Clause No.6 categorically states
that the suit schedule property is occupied by the tenants
and the tenants have to be evicted by the defendants prior
to execution of the Sale Deed and handover the vacant
possession to the plaintiff. Obviously, under Ex.P1, the
time fixed for payment of the balance sale consideration
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and handing over the vacant possession after evicting the
tenants came to an end on 02.06.1992.
35. Thereafter, the husband of defendant No.1,
S.M.Ramesh died on 26.02.1992. In other words, one of
the signatory to the Agreement died prior to the time fixed
under Ex.P1. Thereafter, on 30.05.1992, the defendants
executed a fresh Agreement of Sale as per Ex.P2. In
Ex.P2, there is a reference for the time fixed for execution
of the Sale Deed i.e., 02.06.1992 and the death of
S.M.Ramesh. Therefore, in view of the changed
circumstances, the defendants being not in a position to
comply the terms of the Agreement under Ex.P1, a further
period of six months was agreed to complete the
transactions. It is specifically mentioned in Ex.P2 that the
plaintiff was ready and willing to perform his part of the
contract and that all the terms and conditions enumerated
in the Agreement dated 02.12.1991 are intact.
36. Thereafter, under Ex.P9 dated 26.05.1995,
which is titled as renewal of the Sale Agreement, though
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the names of defendant Nos.1 and 2 are mentioned as
sellers, it was only defendant No.1 who signed it.
Defendant No.2 has not signed the document. In this
document also, the receipt of Rs.1,00,000/- under the
Agreement at Ex.P1 and thereafter, payment of an
additional sum of Rs.1,00,000/- on 02.01.1992 by
defendant No.1 are reiterated. There is a reference to
Ex.P1 as well as Ex.P2. It is stated that since defendant
No.2 had appeared for the examination at Hubli, she is not
in a position to come for execution of the Sale Deed and
therefore, both the parties agreed to renew the agreement
fixing the date for execution of Sale Deed to be six months
from 26.05.1995.
37. It is pertinent to note that as per endorsement
to Ex.P1, defendant No.1 had acknowledged the receipt of
Rs.1,00,000/- on 02.01.1992. Though this endorsement is
disputed by defendant No.2, defendant No.1 admits the
same in her testimony as DW.1. It is pertinent to note that
the date of payment of Rs.2,01,000/- was not on the date
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of Ex.P1 but it was payment of Rs.1,00,000/- each on two
different dates and a sum of Rs.1,001/- on 28.10.1991 to
defendant No.2 (As per Ex.P8).
38. From the perusal of the above transactions
between the parties, it is clear that the defendants had
agreed to extend the time fixed for execution of the Sale
Deed under Ex.P2. The Ex.P1 contained a clause that prior
to the Sale Deed the tenants have to be evicted.
Obviously, the Sale Deed could not have been executed
even if the plaintiff had paid the entire sale consideration
amount to the defendants in view of the said clause in the
agreement. Secondly, when there is extension of time by
defendant Nos.1 and 2 for six months on account of death
of S.M.Ramesh, the parties understood that unless the
name of defendants is mutated in the property records,
the Sale Deed could not have been executed. In other
words, the extension of time to fulfill the contract
depended upon the eviction of the tenants and the
defendants capable of executing it.
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39. The third aspect to be noted is that under
Clauses 11 and 12 of the Agreement under Ex.P1, the
penalties for breach of contract by either of parties are
mentioned. If the defendants failed to execute the Sale
Deed, the option is given to the plaintiff to cancel the
Agreement and in such event, the defendants have to pay
twice the amount of the advance amount to the plaintiff. If
the plaintiff fails to get the Sale Deed executed by paying
the balance sale consideration despite the defendants had
complied with the Agreement, then the defendants were at
liberty to forfeit the advance amount. These clauses show
that if the plaintiff had failed to perform his part of the
contact despite the defendants were ready, option was
with the defendants to cancel the Agreement. Nowhere the
defendants intimated the plaintiff that on account of failure
on the part of the plaintiff, they are canceling the
agreement. Therefore, this Court comes to the conclusion
that the parties knew that though there is a time of six
months fixed for performance of the contract, it was not to
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be treated as essence of the contract. Therefore, it cannot
be said that the parties agreed that the time was essence
of the contract. Consequently, point No.1 is answered in
the 'Negative'.
40. The next aspect to be considered is about the
limitation. This aspect would not hold the Court for long.
Learned counsel for defendant No.2 contends that when
the plaintiff is relying on Ex.P9 of the year 1995 for the
purpose of limitation, defendant No.2 being not a party to
it, the suit deserves to be dismissed against defendant
No.2. It is not in dispute that defendant No.2 is not a party
to Ex.P9. However, she was within the knowledge of
Ex.P9. The cross-examination of DW.2 dated 12.04.2007
reads as below:
"I came to Bangalore after one month of from the
date of execution of Ex.P.9. My mother informed me
through telephone when I was at Hubli about the
Ex.p.9. The Xerox copy of the Ex.P.9 was shown to me
by my mother. My mother does not know the English
language. I myself read over the contents to her on
that day. I did not cause any notice to the plaintiff for
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not agreeing the agreement of sale. It is true the
witness to Ex.P.9 H.L. Ravindra is my maternal uncle.
It is true that he is also present before the court
today. It is true the signature of Ravindra also stands
in Ex. P.2. It is true the Ex.P.8 receipt also bears the
signature of Ravindra."
41. Thus, it is evident that DW.2/appellant herein
was well within the knowledge of Ex.P9 and the witness to
Exs.P1, P2 and P8 was also a witness to Ex.P9. No effort is
made on behalf of the defendants to examine the said
witness to show that defendant No.2 did not agree or
consent for extension of time under Ex.P9. The testimony
of DW.1, who is none else than the mother of defendant
No.2 show that she had informed about Ex.P9 to
defendant No.2 soon after its execution. Therefore, it is
evident that defendant No.2 did not choose to distance
herself away from the Ex.P9.
42. Be that as it may, admittedly, the tenants in
the suit schedule properties were got evicted in January,
1997 as per the defendants and in the month of
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September, 1997 as per the plaintiff. In either cases, if
clause No.6 of the agreement at Ex.P1 is invoked, the
performance of the contract could have been done only
after the tenants were evicted and vacant possession was
available with the defendants. This Court having held that
time was not the essence of the contract, the limitation
begins to run from the date when the right to sue accrues
to the plaintiff. Obviously, such right to sue accrued to the
plaintiff when the defendants refused and when tenants
vacated the suit schedule property.
43. It is an admitted fact by the DW.2 that the
plaintiff was vigilantly pursuing and observing the eviction
proceedings against the tenants. Paragraph No.12 of the
examination-in-chief of DW.2 show that the plaintiff was
keenly watching the eviction proceedings and she was
expecting soon after the tenants were evicted in January,
1997 the plaintiff would come and give the remaining
amount as per the agreement and get the sale deed
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executed. This shows that the plaintiff was keen in pursing
the eviction proceedings.
44. For the aforesaid reasons, defendant No.2
cannot be absolved from contending that she being not a
party to Ex.P9, the suit is barred by time. Even otherwise,
the right to sue begins when the plaintiff approached the
defendants after the tenants were evicted from the
property and they refused to execute the sale deed. The
suit having been filed in the year 1997 and it being an
admitted fact that the tenants were evicted in January,
1997, at no stretch of imagination, it can be held that the
suit is barred by time. Consequently, the point No.2 is
answered in the 'Negative'.
Reg. Point No.3:
45. It is settled principle of law that a party seeking
specific performance of contract of agreement of sale not
only needs to plead but also to prove his ready and
willingness to perform his part of the contract. As held in
the case of BASAVARAJ (referred supra), it is not
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necessary that the plaintiff has to prove his readiness by
producing the bank passbook or by depositing the balance
amount. It is the conduct which matters to infer the
readiness and willingness.
46. In order to consider whether the plaintiff was
ready and willing to perform his part of the contract, it is
necessary to look into the evidence on record. It is
pertinent to note that the plaintiff on one hand and
defendant Nos.1 and 2 on the other hand entered into an
Agreement in the year 1991 and 1992. Thereafter,
defendant No.1 entered into a Renewal Agreement in the
year 1995. Defendant No.1 had received a sum of
Rs.1,00,000/- in the year 1992 and defendant No.2 had
received a sum of Rs.1,001/- under Ex.P8. The suit
schedule property was occupied by three tenants and they
were to be evicted by the defendants.
47. As noted supra, the DW.2 say that the plaintiff
was keenly watching and following the eviction
proceedings. This statement of DW.2, who is the appellant
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herein get ample impetus from various other facts. The
role of the counsel-N.U.Narasimhan has been the bone of
contention between the parties.
48. It is relevant to note that learned counsel
Sri N.U.Narasimhan was a counsel of the defendant No.2
in HRC proceedings initiated by her against the tenants.
He was also the counsel who drafted the Ex.P9 dated
26.05.1995. Thereafter,learned counsel Sri Narasimhan
filed the present suit on behalf of the plaintiff. During
pendency of the suit, he passed away. The records reveal
that he had filed an affidavit on behalf of the plaintiff as a
witness but later such evidence was expunged.
(DW.1) does not make any allegation of fraud or allegation
against learned counsel Sri N.U.Narasimhan. However,
defendant No.2 (DW.2) makes allegations against the
learned counsel Sri N.U.Narasimhan that he had colluded
with the plaintiff. The testimony of DW.2 shows that the
entire proceedings against the tenants for eviction was
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conducted by the learned counsel Sri N.U.Narasimhan. He
also represented defendant No.2 before the High Court in
HRRP proceedings and got an eviction order. DW.2 states
that through learned counsel Sri N.U.Narasimhan she paid
certain amounts to the tenants and all the documents
were kept by him. Therefore, she allege that he obtained
the signature of her mother defendant No.1 without her
knowledge. This testimony of DW.2 appears to be an
afterthought. The reason being that the parties had agreed
that the tenants have to be evicted before execution of the
Sale Deed. The eviction proceedings were filed by
defendant No.2 and it was keenly observed and followed
by the plaintiff. It appears that all the instructions to
conduct eviction proceedings was given by the plaintiff.
The circumstances of the family of the defendants as may
be found in the affidavit evidence of DW.2 would show
that her father Sri S.M.Ramesh had obtained the suit
schedule property in a partition, with three tenants in the
property. He was suffering from heart ailment and had
suffered paralysis and as such, he could not fight the
litigation. He has appointed defendant No.1 as his
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attorney. In such capacity, defendant No.1 entered into
the suit agreement. Defendant No.2 was studying
medicine in Bengaluru Medical College and later, she went
to Hubli to do her master's degree. Thereafter, she joined
a Hospital at Madurai. Therefore, it appears that learned
counsel Sri N.U.Narasimhan conducted the eviction
proceedings at the instructions of the plaintiff. This
inference is obvious from the circumstances of the case.
50. The allegations against the learned counsel
Sri N.U.Narasimhan are not by defendant No.1 but by
defendant No.2. Defendant No.1 says that on
'humanitarian grounds' she signed Ex.P9. It is not known
what the humanitarian grounds were. There was no room
for humanitarian ground unless the defendant No.1 has
received any assistance from the plaintiff.
51. The above circumstances would show that the
plaintiff not only saw to it that the agreement was
extended after the death of S.M.Ramesh but he keenly
followed the eviction proceedings. Soon after the eviction,
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he had approached the defendants and there being a
refusal, was constrained to file the suit. This conduct of
the plaintiff from the date of the agreement would show
that he was diligent, was waiting for the eviction of the
tenants. Soon after the eviction of the tenants, he has
filed the present suit. It is pertinent to note that the
revision petitions in HRRP Nos.1035/1996, 1058/1996 and
1059/1996 which are at Exs.P3 and P4 were disposed of
by a Co-ordinate Bench of this Court on 09.09.1996 and
10.12.1996. Obviously, the tenants were given time to
vacate the premises till 09.06.1999 subject to certain
conditions. The legal notice was issued on 22.09.1997.
Obviously, it cannot be said that there is inordinate delay.
The conduct of the plaintiff from the year 1991 till the year
1997 is that of a diligent person and definitely comes
within the meaning of his ready and willingness. The
circumstances faintly indicate that after the agreements,
plaintiff took the lead in the eviction of the tenants
through learned counsel Sri N.U.Narasimhan. Immediately
after taking possession, the plaintiff issued the notice and
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has filed the suit. Therefore, there is no reason to hold
that the plaintiff was not ready and willingness to perform
the contract. The conduct of the plaintiff shows that he
was always ready and willing to fulfill his part of the
agreement. In the result, the point No.3 is answered in the
'Affirmative'.
Reg. Point No.4:
52. The last question that needs to be considered is
about the judicial discretion exercised by the trial Court.
The trial Court directed the plaintiff to deposit the balance
sale consideration amount along with interest at 6% per
annum, this aspect is objected by the plaintiff in
RFA.Crob.No.1/2009.
53. Learned counsel for the appellant and
defendant No.1 contend that much water has flown after
the agreement and therefore, the sale consideration
amount being meager as per the present value, the
discretionary relief of specific performance cannot be
granted.
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54. The exercise of the discretion has been laid
down in catena of decisions by the Apex Court:
a) In SATYA JAIN VS. ANIS AHMED RUSHDIE8, the
Apex Court observed as below:
"39. The long efflux of time (over 40 years) that
has occurred and the galloping value of real estate in
the meantime are the twin inhibiting factors in this
regard. The same, however, have to be balanced
with the fact that the plaintiffs are in no way
responsible for the delay that has occurred and their
keen participation in the proceedings till date show
the live interest on the part of the plaintiffs to have
the agreement enforced in law.
40. The discretion to direct specific performance
of an agreement and that too after elapse of a long
period of time, undoubtedly, has to be exercised on
sound, reasonable, rational and acceptable
principles. The parameters for the exercise of
discretion vested by Section 20 of the Specific Relief
Act, 1963 cannot be entrapped within any precise
expression of language and the contours thereof will
always depend on the facts and circumstances of
each case. The ultimate guiding test would be the
principles of fairness and reasonableness as may be
dictated by the peculiar facts of any given case,
which features the experienced judicial mind can
perceive without any real difficulty. It must however
be emphasised that efflux of time and escalation of
price of property, by itself, cannot be a valid ground
to deny the relief of specific performance. Such a
view has been consistently adopted by this Court. By
way of illustration opinions rendered in P.S.
(2013) 8 SCC 131
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Ranakrishna Reddy v. M.K. Bhagyalakshmi [(2007)
10 SCC 231] and more recently in Narinderjit
Singh v. North Star Estate Promoters Ltd. [(2012) 5
SCC 712] may be usefully recapitulated.
41. The twin inhibiting factors identified above if
are to be read as a bar to the grant of a decree of
specific performance would amount to penalising the
plaintiffs for no fault on their part; to deny them the
real fruits of a protracted litigation wherein the
issues arising are being answered in their favour.
From another perspective it may also indicate the
inadequacies of the law to deal with the long delays
that, at times, occur while rendering the final verdict
in a given case. The aforesaid two features, at best,
may justify award of additional compensation to the
vendor by grant of a price higher than what had
been stipulated in the agreement which price, in a
given case, may even be the market price as on date
of the order of the final court.
b) In SHENBAGAM AND OTHERS VS KK
RATHINAVEL9 the Apex Court observed as below:
"36. Even assuming that the respondent was
willing to perform his obligations under the contract,
we must decide whether it would be appropriate to
direct the specific performance of the contract in this
case. In Zarina Siddiqui v. A. Ramalingam a two-
judge Bench of this Court while dealing with a suit
for specific performance of a contract regarding the
sale of immovable property observed that the
remedy for specific performance is an equitable
remedy and Section 20 of the Specific Relief Act
confers a discretion on the Court. The Court held:
"24. It is well settled that remedy for
specific performance is an equitable remedy.
2022 SCC OnLine SC 71
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The court while granting decree of specific
performance exercises its discretionary
jurisdiction. Section 20 of the Specific Relief
Act specifically provides that the Court's
discretion to grant decree of specific
performance is discretionary but not
arbitrary. Discretion must be exercised in
accordance with sound and reasonable
judicial principles."
xxxxx
40. In KS Vidyanadam v. Vairavan, an agreement
to sell immovable property was entered into between
the plaintiff-buyer and the defendant-seller for a
consideration of Rs. 60,000, where earnest money of
Rs. 5,000 had been paid in advance. The agreement
stipulated that the plaintiff had to purchase stamp
papers and pay the balance amount within six
months and call upon the defendants to execute the
sale deed. The plaintiff filed a suit for specific
performance after a lapse of two and a half years
seeking performance of the contract. The Court held:
"10. It has been consistently held by the
courts in India, following certain early English
decisions, that in the case of agreement of
sale relating to immovable property, time is
not of the essence of the contract unless
specifically provided to that effect. The period
of limitation prescribed by the Limitation Act
for filing a suit is three years. From these two
circumstances, it does not follow that any and
every suit for specific performance of the
agreement (which does not provide
specifically that time is of the essence of the
contract) should be decreed provided it is
filed within the period of limitation
notwithstanding the time-limits stipulated in
the agreement for doing one or the other
thing by one or the other party. That would
amount to saying that the time-limits
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prescribed by the parties in the agreement
have no significance or value and that they
mean nothing.
[...]
In this case, the suit property is the house
property situated in Madurai, which is one of
the major cities of Tamil Nadu. The suit
agreement was in December 1978 and the six
months' period specified therein for
completing the sale expired with 15-6-1979.
The suit notice was issued by the plaintiff
only on 11-7-1981, i.e., more than two years
after the expiry of six months' period. The
question is what was the plaintiff doing in this
interval of more than two years? [...] There is
not a single letter or notice from the plaintiff
to the defendants calling upon them to get
the tenant vacated and get the sale deed
executed until he issued the suit notice on
11-7-1981. It is not the plaintiff's case that
within six months', he purchased the stamp
papers and offered to pay the balance
consideration.
[...]
13. In the case before us, it is not mere
delay. It is a case of total inaction on the part
of the plaintiff for 2½ years in clear violation
of the terms of agreement which required
him to pay the balance, purchase the stamp
papers and then ask for execution of sale
deed within six months. Further, the delay is
coupled with substantial rise in prices --
according to the defendants, three times --
between the date of agreement and the date
of suit notice. The delay has brought about a
situation where it would be inequitable to
give the relief of specific performance to the
plaintiff."
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55. In the case on hand, the conduct of the
defendants is worth to be noted. The defendants agreed to
sell the suit schedule property as they were in the need of
money. The circumstances of the situation of the family
that could be gathered from the testimony of DW.1 is
considered supra. The eviction proceedings were pursued
by defendants No.2 while she was studying at Hubli and
working at Madurai. The plaintiff was keen and vigilant in
conducting the eviction proceedings. Defendant No.1
agrees to extend the time for performance but later,
defendant No.2 makes a u-turn. Obviously, there is no
breach of the contract by the plaintiff. The defendant
Nos.1 and 2, after they obtained the possession of the
property, appears to have become greedy and denied to
execute the Sale Deed. The keen participation and
diligence of the plaintiff having been admitted by
defendant No.2 in her examination in chief, no fault can be
found with the conduct of the plaintiff. On the other hand,
the defendants have not brought anything which would tilt
the balance of convenience and equity in their favour by
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making any ground for discretionary relief. The conduct of
the defendants is not satisfactory.
56. The escalation of the price is one of the aspects
to be considered. The Agreement of Sale was entered into
in the year 1991, the suit was filed in the year 1997 and
the appeal filed in the year 2008. It is being decided in the
year 2025. Much water has flown in three and a half
decades and market prices have gone up. Though the
explanation to Section 20(2) of Specific Relief Act lays
down that the increase in the market value is not a ground
to deny the specific performance, judicial pronouncements
as depicted above, show a slight deviation to achieve
equitable justice. In the case on hand, the parties had
agreed to execute the Sale Deed soon after the payment
of the balance sale consideration and eviction of the
tenants. But the defendants denied executing the Sale
Deed when the plaintiff approached them after eviction of
the tenants. The circumstances indicate that the
defendants entered into an agreement when their family
was in distress. But their conduct of denying the
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agreement and alleging collusion of their counsel with the
plaintiff is unacceptable. Such allegations are not even
attempted to be proved. Therefore, in the light of these
circumstances, this Court is of the view that fastening of
interest at 6% per annum on the balance sale
consideration amount to be paid by the plaintiff is proper.
Under these circumstances, the plaintiff is entitled for the
relief of specific performance of the contract of agreement
of sale.
57. It is pertinent to note that the trial Court in
paragraph No.12 has considered the comparative hardship
of the parties and has come to a conscious conclusion that
the plaintiff is entitled for the relief of specific
performance. The reasons assigned by the trial Court need
not be interfered. The Apex Court in the case of
SANTOSH HAZARI VS. PURUSHOTTAM TIWARI10
holds that the Appellate Court cannot substitute its own
reasons unless the reasons assigned by the trial Court is
found to be perverse. Therefore, concurring with the view
2001(3) SCC 179
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of the trial Court, the point No.4 is answered in the
'Affirmative'.
58. For the aforesaid reasons, the appeal as well as
the cross objections are bereft of any merits. Hence, the
following:
ORDER
The appeal in RFA.No.650/2008 as well as
the Cross Objection No.1/2009 and Cross
Objection No.8/2009 are dismissed.
The judgment and decree passed by the trial
Court in O.S.No.8293/1997 on 26.2.2008 is
confirmed.
All pending applications stand disposed of.
Sd/-
(C M JOSHI)
JUDGE
NR/-
