Madras High Court
Rajan vs Jose on 19 July, 2021
S.A.(MD)No.290 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A (MD)No.290 of 2011
Rajan ... Appellant
Vs.
1. Jose
2. Josephine Mary Indra ... Respondents
(R2 was impleaded vide court order
dated 04.07.2013)
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 10.08.2010 passed in
A.S.No.9 of 2008 on the file of the District Judge, Kanyakumari at
Nagercoil reversing the Judgment and Decree dated 27.11.2007
passed in O.S.No.83 of 2005 on the file of Subordinate Court,
Kuzhithurai.
For Appellant : M/s.J.Anandavalli
For Respondents : Mr.N.S.Ramakrishna Dass for R1.
Mr.J.Bharathan for Mr.T.R.Jeyapalam for R2.
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S.A.(MD)No.290 of 2011
JUDGMENT
The plaintiff in O.S.No.83 of 2005 on the file of Sub-Court,
Kuzhithurai, is the appellant in this Second Appeal. The suit was one
for specific performance. The plaintiff and the original defendant/R1
herein entered into a sale agreement dated 29.03.2004. The sale
consideration was fixed at Rs.1,87,500/-. The plaintiff paid a sum of
Rs.50,000/- as advance at the time of entering into the agreement.
2.The case of the plaintiff is that though he repeatedly
approached the defendant for concluding the sale transaction, the
defendant for some reason or the other did not come forward to do so.
The plaintiff issued notice dated 29.10.2005 (Ex.A2). The same was
received by the defendant. Before his reply dated 15.11.2005 (Ex.A5)
could reach the plaintiff, the suit was filed.
3.The defendant filed written statement controverting the plaint
averments. According to him, the plaintiff neither approached him nor
paid the balance sale consideration before the final date i.e.,
28.03.2005 stipulated in the agreement. The defendant claimed that
hoping that he would get the balance sale consideration within the
stipulated period, he entered into another transaction with one
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S.A.(MD)No.290 of 2011
Presannan and his wife Ambili (Ex.B1). On account of failure on the
part of plaintiff to make the balance payment, the other agreement
entered into by him was not only not cancelled but the advance
amount paid by him was also forfeited.
4.The trial Court framed the necessary issues. The plaintiff
examined himself as PW1 and marked Exs.A1 to A5. The defendant
examined himself as DW1 and Exs.B1 & B2 were marked. After
consideration of the evidence on record, the trial Court by judgment
dated 27.11.2007 decreed the suit as prayed for and directed the
defendant to execute sale deed conveying the suit property in favour of
the plaintiff, after the plaintiff remitted the balance sale consideration
of Rs.1,37,500/-.
5.Aggrieved by the same, plaintiff filed A.S.No.9 of 2008 before
the District Court, Kanyakumari, Nagercoil. By the impugned
judgment and decree dated 10.08.2010, the judgment passed by the
trial Court was set aside and the appeal was allowed. Challenging the
same, the plaintiff filed this Second Appeal.
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S.A.(MD)No.290 of 2011
6.The learned counsel appearing for the appellant reiterated all
the contentions set out in the memorandum of grounds. She pointed
out that the Appellate Court had wrongly concluded that time was the
essence of contract. In any event, the first appellate court had failed to
note that the plaintiff was always ready and willing to perform his part
of the contract. The plaintiff had consistently pleaded that he had
been approaching the defendant for concluding the sale transaction
and that it was the defendant who did not cooperate. This was
reiterated during his chief examination. In the cross-examination,
the plaintiff was asked if he gave any written notice prior to
29.10.2005. It can be concluded therefrom that the defendant did not
challenge the stand of the plaintiff that he made several oral demands
for concluding the sale transaction.
7.The learned counsel submitted that if really time was the
essence for the contract, the defendant would have disposed of the
property soon after the expiry of the period set out in the agreement.
But he did not do so. The suit property was sold in favour of the
second respondent herein only in the year 2011. She also pointed out
that the second respondent was not a bona-fide purchaser. He was
fully aware that the plaintiff had entered into a sale agreement with
the first defendant. During cross-examination of the first defendant, it
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S.A.(MD)No.290 of 2011
was suggested that since one Henry had offered to pay a higher
amount, the first defendant wanted to avoid the contract. The second
respondent is none other than the wife of the said Henry. This shows
that the suspicion entertained by the plaintiff was justified. The bona-
fides of the second respondent is under a serious cloud.
8.The learned counsel relied on the various decisions which find
place in the judgment of the first appellate court. She called upon this
Court to frame the substantial question of law, admit the second
appeal and dispose of the matter after putting the respondents on
notice and restore the decision of the trial Court. Per contra, the
learned counsel for the respondents submitted that the impugned
judgment does not call for any interference.
9.I considered the rival contentions and went through the
evidence on record. It is not in dispute that the plaintiff and the
defendant entered into Ex.A1 sale agreement dated 29.03.2004. The
sale consideration was fixed at Rs.1,87,500/-. A sum of Rs.50,000/-
was paid by the plaintiff as advance money and 28.03.2005 was fixed
as the final date for concluding the contract. Though the plaintiff
would claim that he was approaching the defendant even before the
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S.A.(MD)No.290 of 2011
expiry of the said period for concluding the contract, the fact remains
that only on 29.10.2005 notice was sent for the first time to the
defendant. There is no evidence to show that during this period i.e.
from 29.03.2004 till 29.10.2005, the plaintiff was ready and willing to
perform his part of the contract.
10.It is not necessary to decide the issue if time was the essence
of the contract or not. The first appellate court had given a specific
finding that it cannot be said that the plaintiff was always ready and
willing to perform his part of the contract within the date specified in
the agreement and that he failed to prove the same. I am not
persuaded to hold that this finding is perverse. As rightly submitted by
the learned counsel for the respondents, the agreement was executed
on 29.03.2004. A long period of one year was fixed for concluding the
contract. The suit notice was issued 7 months after the said period
expired. The first appellate court has rightly came to the conclusion
that the plaintiff failed prove that he was ready and willing to perform
his part as contemplated by Section 16 of the Specific Relief Act.
Unless the ingredient of readiness and willingness is established, the
court will not be justified in granting the relief of specific performance.
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S.A.(MD)No.290 of 2011
11.However, the plaintiff cannot be denied the refund of the
advance amount. The first respondent is directed to return the
advance amount of Rs.50,000/- with interest @ 6% p.a from
29.10.2005 till date of repayment. Since the validity of the agreement
is not disputed, the plaintiff will be entitled to charge on the suit
property.
12.With this direction, this Second Appeal is partly allowed. No
costs.
19.07.2021
Index : Yes / No
Internet : Yes/ No
skm
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Subordinate Judge, Kuzhithurai.
2. The District Judge, Kanyakumari, Nagercoil.
Copy to:
The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD)No.290 of 2011
G.R.SWAMINATHAN, J.
skm
S.A.(MD)No.290 of 2011
19.07.2021
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