Madras High Court
P.Jayalakshmi vs J.Gajalakshmi on 5 January, 2021
A.S.(MD)No.306 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.306 of 2008
P.Jayalakshmi : Appellant / Defendant
Vs.
1.J.Gajalakshmi
2.R.Maheswari
3.J.Venugopal
4.J.Balaji
5.J.Bhuvaneswari : Respondents/ Plaintiffs
PRAYER: Appeal is filed under Section 96 of the Code of Civil
Procedure praying to set aside the judgment and decree made in O.S.No.
251 of 2004, on 18.12.2017 passed by the learned I Additional District
Judge, Trichirapalli.
For Appellant : MrD.Saravanan
for M/s.T.Sathya Selvi
For Respondents : Mr.K.K.Senthil
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A.S.(MD)No.306 of 2008
JUDGMENT
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This Appeal is filed as against the judgment and decree passed
in O.S.No.251 of 2004, dated 18.12.2017 on the file of the I Additional
District Judge, Trichy.
2. The parties are arrayed in the Appeal Suit, as per their own
ranking before the Trial Court.
3. The brief facts leading to the filing of this Appeal Suit, is as
follows:-
(i). The defendant viz., P.Jayalakshmi borrowed a sum of
Rs.2,00,000/- (Rupees Two Lakhs only) and inducted the father of the
plaintiffs 2 to 6 into possession of the ground floor of the property
bearing Door No.6, Virupatchipuram, Woraiyur, Tiruchirappalli-3 and
permitted him to enter into the suit property. Originally, he was
permitted to enjoy the property for a period of three years or till the
repayment of Rs.2,00,000/- (Rupees Two Lakhs only). However, on
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A.S.(MD)No.306 of 2008
16.04.2003, the defendant agreed to sell the property for a total sale
consideration of Rs.6,00,000/- (Rupees Six Lakhs only) and agreed to
treat the loan to the tune of Rs.2,00,000/- (Rupees Two Lakhs) as an
advance. The defendant requested the plaintiffs to discharge an existing
mortgage of a sum of Rs.4,00,000/- (Rupees Four Lakhs only) with the
State Bank of India, Woraiyur Branch, Trichy. The agreement of sale was
entered into between them on 16.04.2003. However, on the said date, a
further sum of Rs.1,00,000/- (Rupees One Lakh only) was paid towards
the sale consideration.
(ii). After the execution of the sale agreement, the defendant
changed her attitude, since the father of the plaintiffs 2 to 6 was in
possession of the suit property. The father of the plaintiffs 2 to 6 had
spent money towards alteration and improvement of the suit property and
he was also ready and willing to perform his part of contract and issued
two legal notices to the defendant seeking specific performance. Since
the defendant refused to execute the sale deed, the suit in O.S.No.251 of
2004 was filed by the plaintiffs herein.
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A.S.(MD)No.306 of 2008
4. It is an admitted fact that the sale agreement was entered into
between the parties on 16.04.2003 and the defendant agreed to sell the
property for the total sale consideration of Rs.6,00,000/- (Rupees Six
Lakhs only) and agreed to treat the loan to the tune of Rs.2,00,000/-
(Rupees Two Lakhs) as an advance.
5. It is the contention of the defendant that the sale agreement
ought to have been completed on or before 16.09.2003 and the plaintiffs
failed to comply with the terms of the agreement and therefore, they
committed breach of contract. He would further contend that the
defendant is always ready and willing to perform her part of contract,
whereas, the plaintiffs have never shown their readiness and willingness
to perform their part of contract.
6. On the basis of the rival pleadings, the trial Court framed the
following issues:-
“(i).Whether the plaintiffs are entitled to the
relief of specific performance?
(ii).Whether the plaintiffs were always
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A.S.(MD)No.306 of 2008
ready and willing to complete the terms of the
agreement?
(iii).Whether the plaintiffs are entitled to
any other reliefs?”
7. During trial, on the side of the plaintiff, the first plaintiff was
examined as P.W.1 and Ex.A.1 to Ex.A.3 were marked. On the side of
the defendant, the defendant was examined as D.W.1 and Ex.B.1 to
Ex.B.3 were marked.
8. Based on the evidences and materials, the trial Court decreed
the suit in favour of the plaintiffs. As against which, the present Appeal
came to be filed.
9. The main contention of the learned counsel appearing for the
appellant / defendant is that the specific condition to deposit the above
said loan amount to the Bank was only within a period of five months
and thereafter, the original documents have to be taken back and sale
shall be registered in favour of the plaintiffs. But the respondents /
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A.S.(MD)No.306 of 2008
plaintiffs have not fulfilled the above said condition and no loan amount
was paid towards the Bank. He would further contend that time was an
essence of the contract and the plaintiffs have failed to perform the
completion of sale and the plaintiffs have never shown their readiness
and willingness to perform their part of contract. He would further
submit that the Trial Court has ignored the time limit fixed in the
agreement and decreed the suit in favour of the plaintiffs. Hence, he
prayed for allowing the appeal.
10. Whereas, the learned counsel appearing for the respondents
/ plaintiffs would submit that from the date of agreement, the father of
the plaintiffs 2 to 6 was always ready and willing to perform his part of
contract. He would further submit that the respondents / plaintiffs had
shown their readiness to pay the remaining amount, which has to be paid
towards the Bank loan amount. But, the appellant / defendant had not co-
operated with the respondents / plaintiffs and not given any authorisation
to the plaintiffs to pay the remaining amount. This aspect has been
clearly considered by the trial Court. He would further submit that the
father of the plaintiffs 2 to 6 is always ready and willing to perform his
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A.S.(MD)No.306 of 2008
part of contract, but, the appellant / defendant evaded to execute the sale
deed in favour of the father of the plaintiffs 2 to 6. The father of the
plaintiffs 2 to 6 has sent two legal notices to the appellant / defendant.
He would further contend that the amount could not be paid by the
respondents / plaintiffs to the Bank only because of the appellant /
defendant failed to give an authorisation. Hence, he prayed for dismissal
of the appeal.
11. In the light of the above submissions and pleadings, the
following points arose for consideration:-
“(i). Whether the plaintiffs were
always ready and willing to perform their
part of contract?
(ii). Whether the time stipulated in
the agreement is an essence of contract to
what relief?”
12. I have perused the entire materials.
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A.S.(MD)No.306 of 2008
13. The suit has been laid for specific performance. It is an
admitted fact that the sale agreement was entered into between the parties
on 16.04.2003. It is not disputed by the appellant / defendant that the
sale agreement was entered into between them on 16.04.2003 and
advance amount was also received. The only contention of the
appellant / defendant is that the father of the plaintiffs 2 to 6 was not
ready and willing to perform his part of contract. On perusal of the sale
agreement, it is seen that one of the condition stipulated in the agreement
is that the remaining sale consideration shall be paid to the Bank to clear
the mortgage loan availed by the defendant within a period of five
months from the date of agreement and thereafter, the original documents
have to be taken back and the sale shall be registered. Such clauses have
been specifically agreed upon by the parties. Further, on perusal of the
documents, it would clearly show that the father of the plaintiffs 2 to 6
had issued two legal notices to the appellant / defendant within a period
of five months from the date of agreement, which was also
acknowledged by the defendant. The father of the plaintiffs 2 to 6 has
also shown the wherewithal to pay the remaining sale consideration and
in order to prove the same Ex.A.3 / the Bank Passbook of the father of
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A.S.(MD)No.306 of 2008
the plaintiffs 2 to 6 was produced before the trial Court. Ex.A.3 / the
Bank Passbook of the first plaintiff would clearly show that the first
plaintiff had in fact kept Rs.4,41,204.34/- (Rupees Four Lakhs Forty One
Thousand Two Hundred Four and Thirty Four only) in his account.
14. It is the contention of the respondents / plaintiffs that the
appellant / defendant did not give any authorisation to pay the said
amount to the Bank, so that, they could not pay the amount towards loan
amount. Such contention is well founded. It is the common knowledge
that without any authorisation, the Bank would not receive the amount
from any unknown persons towards loan availed by the third parties.
15. It is not the case of the appellant / defendant that even
without giving any authorisation to the plaintiffs, they have failed to pay
the amount within the time as stated in the agreement. When the
respondents / plaintiffs have shown their readiness and willingness to
perform their part of contract and their father had sent two legal notices
within a period of five months after entering into the sale agreement and
they are also ready to pay the remaining sale consideration, at this time, it
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cannot be stated that the plaintiffs were never ready and willing to
perform their part of contract. In assessing the readiness and willingness,
the Court has to find out that whether the obligation has been fulfilled by
the parties. Further, the conduct of both sides are also relevant.
16. On perusal of these documents, particularly, Ex.A.1 to
Ex.A.3, this Court is of the view that the respondents / plaintiffs have
shown their readiness and willingness from the date of the contract. It is
also not disputed by the appellant / defendant. The plaintiffs were in
possession of the property from the year 2003 as per the own pleadings
of the defendant. When the substantial part of the sale consideration is
also paid and the remaining consideration is also made ready, at this
point of time, it cannot be stated that the plaintiffs were never ready and
willing to perform their part of contract.
17. Though the time limit stated in the agreement was a period
of five months, within such period, the respondents / plaintiffs have
shown their readiness and willingness to perform their part of contract
and they are ready to pay the remaining amount within five months, at
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this time, it cannot be stated that the plaintiffs are not willing to perform
their contract. This would clearly indicate that due to the non co-
operation on the part of the appellant / defendant, the plaintiffs had not
paid the remaining amount towards the Bank as stipulated in the
agreement. In such view of the matter, this Court is of the view that the
respondents / plaintiffs have established the readiness and willingness to
perform their part of contract. The respondents / plaintiffs have
performed their part of contract, but, the appellant / defendant has failed
to co-operate and evaded to execute the sale in favour of the plaintiffs,
therefore, the plaintiffs certainly entitled to get specific performance.
Accordingly, this Court is of the view that, there is no perversity in the
judgment of the trial Court and the trial Court has appreciated the entire
facts and decreed the suit.
18. At this juncture, it is stated by the learned counsel for the
respondents / plaintiffs that when the appeal was dismissed on the earlier
occasion, an Execution Petition was also filed and sale also executes in
favour of the plaintiffs. Such submission is not disputed by the
respondents.
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19. I do not find any merits in the appeal suit and the order of
the Trial Court stands confirmed.
20. In the result, the appeal suit is dismissed. No costs.
05.01.2021
Index : Yes/No
Internet : Yes/No
tsg
To
1.The I Additional District Judge, Trichirapalli.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.306 of 2008
N.SATHISH KUMAR, J
tsg
Judgment made in
A.S.(MD)No.306 of 2008
Dated: 05.01.2021
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