Madras High Court
Siva Pakkiammal vs Samsudeen Hazarat on 24 February, 2021
1 A.S.No.361 OF 2000
& CRP (NPD) NO.750 OF 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
A.S.No.361 of 2000
& CMP Nos.15740 of 2000, 1502 of 2001
and
C.R.P.(NPD) No.750 of 2002
A.S.No.361 of 2000:
1.Siva Pakkiammal
2.Sokkayeeammal
3.Vanaja ...Appellants/
Defendants 1to 3
Vs
Samsudeen Hazarat ...Respondent/Plaintiff
PRAYER: Appeal filed under Section 96 of CPC to set aside the judgment
and decree in O.S.No.65 of 1996 dated 21.06.2000 on the file of the Sub
Court, Vridhachalam.
For Appellants : Mr.N.Sankara Vadivel
for Mr.B.Soundarapandian
For Respondents : Mr.N.S.Varadhachari
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
C.R.P.(NPD) No.750 of 2002
1.Siva Pakkiammal
2.Sokkayeeammal
3.Vanaja
4.Padma
5.Shanthi
6.Amaravathi @ Abirami
(No relief sought against R4 to R6. Hence,
they are not necessary parties) ....Petitioners/
Defendants 1 to 3
vs
Samsudeen Hazarat ..Respondent/
Plaintiff
PRAYER: Civil Revision Petition filed under Section 115 C.P.C. Against
the order and decretal order dated 08.08.2000 in I.A.No.744 of 2000 in
O.S.No.65 of 1996 on the file of the Sub Court, Vridhachalam.
For Petitioner : Mr.N.Sankara Vadivel
for Mr.B.Soundarapandian
For Respondent : Mr.N.S.Varadhachari
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
COMMON JUDGMENT
Heard the learned counsel for the appellants and the learned counsel
for the respondent.
2. The appeal is directed against the judgment and decree passed by
the trial court in the suit filed for specific performance. The aggrieved
defendants 1 to 3 are before this Court as appellants.
3.The short point involved in this case is that whether the plaintiff,
who succeeded before the trial court, had proved that he was ready and
willing to perform his part of contract.
4.The brief facts of the case is that on 03.07.1989, the defendants to
the suit agreed to sell the suit schedule property to the plaintiff, who is the
respondent herein for a sum of Rs.3,97,000/- and received Rs.36,000/- as
advance on the date of agreement. As per the terms of the agreement, the
period to complete the contract was fixed as two years. The vendors agreed
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
that they will execute the sale deed of the suit property in whole or part
within the said period as per the instructions and requirement of the
purchaser. On the last date of expiry of two years period, the plaintiff had
caused notice calling upon the defendants to come and execute the sale deed
after receiving the balance sale consideration. Thereafter, the defendants 1
to 3 appears to have received part sale consideration in piecemeal as
follows:-
The second defendant had received Rs.4,000/- on 05.05.1992 and
Rs,5,000/- on 26.06.1993, the first defendant had received Rs.50,000/- on
24.05.1992 and the third defendant had received a sum of Rs.2,000 on
30.05.1992 and Rs.14,000/- on 23.08.1994.
Thus, after causing notice on 03.07.1991, it is the contention of the plaintiff
that the defendants 1 to 3 between 05.05.1992 to 23.08.1994, had received
Rs.75,000/- in total. On trusting their words, the plaintiff waited for them to
execute the sale deed. They failed to execute the sale deed and tried to
alienate the property to the third party. Therefore, he instituted the suit
before the District Munsif Court for permanent injunction which was
followed by suit for specific performance.
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
5.The first defendant filed written statement which was adopted by
the other defendants, wherein the very execution of the sale agreement and
receipt of Rs.36,000/- as advance accepted. The subsequent payments
alleged to have been received by the defendants 1 to 3 were denied,
particularly, the defendants contended that the plaintiff was not ready and
willing to perform his obligation within the time stipulated and the suit is
hopelessly barred by limitation.
6.The trial court on considering the submissions made by the
respective parties framed the following issues:
“a) Whether the payments alleged to have been made by
the plaintiff to the second defendant on 5.5.1992 Rs.4,000/-
and 26.06.1993 Rs.5,000/-, to the first defendant on
24.05.1992 Rs.50,000/- and to the third defendant on
30.05.1992 Rs.2000/- and 23.08.1994 Rs.14,000/- are true?
b) Whether the payment alleged to have been made by
the defendants on 05.05.1992 and 26.06.1993 to the second
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& CRP (NPD) NO.750 OF 2002
defendant, payment on 24.05.1992 to the first defendant and
30.05.1992 to the second defendant are true and genuine?
c) Whether the plaintiff is entitled to the relief of
specific performance?”
Additional issue whether the suit is hit by limitation was framed on
09.06.2000.
7.On the side of the plaintiff, four witnesses were examined. 2
Exhibits viz., suit sale agreement and the lawyer notice were marked. On
behalf of the defendants, 4 witnesses were examined.
8.The trial Court after appreciating the evidence held in favour of the
plaintiff and decreed the suit in so far as the defendants 1 to 3 who have
received part sale consideration after the expiry of time prescribed and after
the issuance of pre suit notice. As far as the defendants 4 and 5 who are the
parties to the sale agreement dated 03.07.1999 but not received any further
sum from the plaintiff were exempted from performing the contract. Suit
decreed to the extent of 3/5 share held by defendants 1 to 3.
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
9.Learned counsel for the appellants confined his argument on the
point of readiness and willingness. It is submitted by the learned counsel
that parties have specifically agreed to complete the contract within a period
of two years. The said period expired on 02.07.1991. The plaintiff had
chosen to cause notice on the last date calling upon the defendants to
execute the sale deed and unilaterally extend the period by one month,
which was not agreed upon by the parties. Even if assuming that one month
period given to perform his obligation, if really, the plaintiff was ready and
willing with adequate money, he would have filed suit for specific
performance within a reasonable time but he had chosen to wait till
03.04.1996 and for the sake of safeguarding limitation, the receipts which
are marked as Exs.A14 to Exs.A18 were fabricated. The said receipts are
denied by the defendants 1 to 3. The plaintiff has not chosen to prove the
genuineness of the said receipts in the manner known to law. Even
assuming that the receipts are true and genuine, the suit filed after nearly
two years from the last payment again hopelessly barred by limitation and
only indicates that the plaintiff was not really ready and willing to perform
his part of contract.
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
10.In addition, the learned counsel for the appellants also pointed out
that even after passing of the decree and granting one month time for
deposit of balance sale consideration, the plaintiff could not deposit the
balance sale consideration and sought further time. When the trial court
granted extension of time, same has been challenged by the defendants
before this Court in CRP (NPD) No. 750 of 2002 and pending. The conduct
of the plaintiff throughout from the date of plaint till the date of decree
would clearly expose his inability to perform the contract, whileso, the relief
of specific performance ought not to have been granted to the plaintiff.
11.Learned counsel appearing for the plaintiff/respondent submitted
that the suit property at the time of agreement was under lease with one
Anjalaiammal. The suit property being cultivable land and was under
cultivation, it was agreed by the parties that as and when the land is fit for
sale and prospective buyers are available, the defendants/landlord will
execute the sale deed. On the said specific understanding, as found in the
recital of Ex.A1, parties entered into agreement and periodical payments
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
were made even after expiry of two years. Without protest, the defendants 1
to 3 have received the money through Ex.A14 to Ex.A18. Therefore, as
rightly held by the court below, the suit is not hit by limitation atleast
against the defendants 1 to 3 and therefore, to the extent of the shares of the
defendants 1 to 3, the decree passed by the trial court has to be confirmed.
The respondent had already deposited the balance sale consideration.
Therefore, it is needless to test readiness and willingness at this point of
time.
12.Relief of specific performance is based on equity. The plaintiff
should convincingly establish through evidence that throughout he was
ready and willing to perform his part of contract. From his evidence, this
Court finds that after execution of Ex.A1 dated 03.07.1989 till the last date
of expiry of the period i.e. two years, there was no action on the part of the
buyer to discharge his obligation as found in the agreement. The notice
dated 02.07.1991 marked as Ex.A8 was addressed to the defendant at
Kaithamalai Street, Pudhupet, Virudhachalam returned unserved. The
postal endorsement indicates that the notice was despatched on 02.07.1991,
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
returned with endorsement “unfound”. So, from Ex.A9 to Ex.A12, the said
notice was not served on the defendants 1, 3 to 5. Only the second
defendant, Sokkayeeammal has received the notice. Under the said
circumstances, even after causing pre suit notice, the plaintiff had not
chosen to file suit for specific performance. Only payment in piecemeal
made to the defendants 1 to 3 under Exs.A14 to 18 between 05.05.1992 to
23.08.1994. After causing notice calling upon the defendants to execute the
sale deed or he will be constrained to file suit for specific performance on
depositing the entire sale consideration in the court, the plaintiff waited for
eight months and making piecemeal payments to the defendants 1 to 3 upto
23.08.1994 and even thereafter, the suit was not filed immediately but there
was another gap of nearly two years. There is no plausible explanation for
his inaction after issuance of notice.
13.Before filing the suit for specific performance, it is also seen from
the record that the plaintiff has filed permanent injunction suit on
08.01.1996 and obtained an interim injunction against the defendants on the
premise that the possession of the property has already been vested with
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
him. When the suit for permanent injunction filed during the month of
January 1996, the cause of action to file suit for specific performance was
very much available to the plaintiff, but no leave obtained under Order 2,
Rule (2) and (3) of C.P.C. to file a separate suit for the specific
performance.
14. Be that as it may, as pointed out by the learned counsel for the
appellants, the conduct of the plaintiff never indicates that he was ready and
willing to perform his obligation at any point of time. Even after the pre
suit notice dated 02.07.1991, he had not sought for enforcement of the
contract immediately but harping on the receipts Ex.A14 to Ex.A18
obtained 7 months later to assume extension of limitation and has filed the
suit for specific performance after seven years from the date of agreement.
15.This Court, from the suit agreement dated 05.07.1989, finds that
the plaintiff has entered into an agreement with an intention to promote the
land as plots. So having entered into agreement for carrying out a
commercial venture attempt to enforcement of agreement after seven years
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& CRP (NPD) NO.750 OF 2002
of the agreement will highly prejudice the land owner and it is against
equity. Court cannot uphold plea for specific performance sought after
undue delay and without adequate funds to enforce the contract. Therefore,
I find merit in the appeal. Hence, the appeal suit is allowed. The
judgment and decree passed by the trial court are set aside.
16. Having held that the plaintiff/respondent has not established his
readiness and willingness and equity is not in his favour to enforce the
agreement, this Court is also conscious of the fact that the
plaintiff/respondent herein has already paid a sum of Rs.36,000/- to the
defendants 1 to 5 at the time of agreement. The defendants 1 to 3
subsequently under Exs.A14 to Ex.A18 had received Rs.75,000/- and made
the plaintiff to believe he is entitled to enforce the contract. Further, the
plaintiff after decree had deposited the balance sale consideration after
extension of time for deposit. In such circumstances, it will be fair enough
to direct the defendants 1 to 3/appellants to repay the money what they have
received from the plaintiff and also, the plaintiff/respondent is permitted
to withdraw the balance amount deposited by him in the suit account.
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
17. In the result, A.S.No.361 of 2000 is allowed. Consequently,
CRP (NPD) No.750 of 2002 is dismissed. No order as to costs. The
connected miscellaneous petitions are closed.
24.02.2021
Speaking/Non Speaking
Index :Yes/No
vri
To
The Sub Court,
Vridhachalam.
https://www.mhc.tn.gov.in/judis/
& CRP (NPD) NO.750 OF 2002
DR.G.JAYACHANDRAN,J.
VRI
A.S.NO.361 of 2000
and
C.R.P.(NPD) No.750 of 2002
24.02.2021
https://www.mhc.tn.gov.in/judis/
