Madras High Court
S.Sakkubai vs S.M.Jaya Saravanan on 29 June, 2021
AS.No.325 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 29.06.2021
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
AS.No.325 of 2013 and
MP.No.1 of 2013
S.Sakkubai ... Appellant
Vs.
S.M.Jaya Saravanan ...Respondent
PRAYER:
Appeal Suit is filed under Section 96 of CPC against the
judgment and decree of the learned Principal District Judge of
Krishnagiri dated 28.01.2013 in OS.No.79 of 2011
For Appellant : Mr.J.Hariharan
for Mr.V.Nicholas
For Respondent : Mr.S.R.Varun Karthik
for Mr.C.Jagadesh
JUDGMENT
The Appeal suit is filed against the judgment and
decree of the learned Principal District Judge of Krishnagiri dated
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AS.No.325 of 2013
28.01.2013 in OS.No.79 of 2011.
2. For the sake of convenience, the parties are referred
to as per their ranking in the trial Court.
3. The case of the plaintiff is that the defendant is the
absolute owner of the suit property. He agreed to sell the suit property
to the plaintiff by fixing rate at Rs.15,500/- per cent, totally to be paid
Rs.15,15,000/- for the total extent of one acre. Accordingly, on
05.11.2008, the agreement for sale was entered between the plaintiff
and the defendant and received a sum of Rs.2,00,000/- as advance
towards part of the sale consideration. It was also agreed by the parties
that the defendant should make arrangement to survey the suit
property and after surveying the same, to hand over the encumbrance
certificate, FMB sketch along with legal opinion. The time limit was
stipulated in the agreement for sale till 20.04.2009. Though the time
limit was fixed, time was not considered to be essence of the contract.
On 20.01.2009. the plaintiff also paid further sum of Rs.3,00,000/-
towards part of the sale consideration to the defendant, thereby the
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AS.No.325 of 2013
plaintiff was put in possession of the suit property. Thereafter, to level
the suit property, the plaintiff spent more than Rs.1,50,000/- for the suit
property. The plaintiff further averred that at the time of entering into
agreement for sale, the defendant never disclosed that a canal was
running in a portion of the suit property. As per the terms of the
agreement, the defendant did not cooperate in measuring the suit
property so as to ascertain the exact extent of one acre. And as such,
the plaintiff could not able to make balance sale consideration. At that
juncture, the defendant sent a legal notice on 17.07.2009 with false
averments, for which the plaintiff had issued reply notice on
01.08.2009. Though the plaintiff was always ready and willing to
perform his part of the contract by paying the balance sale
consideration and get sale deed executed from the defendant, the
defendant refused to execute the sale deed by receipt of balance sale
consideration. Hence, the suit for specific performance.
4. Resisting the same, the defendant filed written statement
and stated that the plaintiff and the defendant have executed
agreement for sale on 05.11.2008 and received a sum of Rs.2,00,000/-
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AS.No.325 of 2013
towards part of the sale consideration in respect of purchasing the suit
property. On 11.01.2009, further sum of Rs.3,00,000/- was paid
towards part of the balance sale consideration. The allegation of extent
of the suit property found only at 90 cents is denied. At the time of
entering into the agreement for sale, the defendant agreed to sell the
suit property within one acre and not exactly one acre as alleged in the
plaint. In fact, the rate was fixed only per cent at Rs.15,500/-.
Therefore, the plaintiff made false allegation with a view to find fault on
the part of the defendant and those allegations are baseless and
against the terms of the agreement for sale. The defendant intended to
sell the suit property for her urgent need of money to discharge debts
incurred by her. Therefore, the time fixed in the agreement for sale is
essence of the contract and there is specific clause in the agreement for
sale that if the plaintiff failed to pay balance sale consideration and get
execution of the sale deed within 20.04.2009, the plaintiff not only lost
his advance amount paid to the defendant and also not entitled to claim
right over the agreement for sale. Therefore, the defendant issued
notice on 17.07.2009 to the plaintiff, thereby called upon the plaintiff
that he lost his advance amount and also not entitled to any right over
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AS.No.325 of 2013
the agreement for sale. On receipt of the same, on 01.08.2009, the
plaintiff had sent reply notice with false and imaginary allegations. Even
after issuance of the notice, the plaintiff kept quite till 17.10.2011 and
filed suit for specific performance. Therefore, the plaintiff was not ready
and willing to perform his part of contract at any point of time and as
such prayed for dismissal of the suit.
5. On hearing the rival pleadings, the learned trial Judge
framed the following issues for determination of the suit :-
1/ fpua xg;ge;jg; gj;jpuk; vGjpa fhyj;jpy; tpy;y';frhd;wpjH;.
epy tiuglk;. tHf;fwp"h; fUj;J Mfpatw;iw gpujpthjp bfhLj;J
fpiuag;gj;jpuk; vGjpf;bfhLg;gjhf epge;jid tpjpf;fg;gl;ljh>
2/ fhy mtfhrk; (Time is essence) xU Kf;fpa
c &uj;jhf nghlg;gl;ljh>
3/thjp. kPjp gzj;ij bfhLj;J fpuak; bra;Jbfhs;s
vg;nghJk; jahuhf ,Ue;jjhf brhy;tJ rhpah>
4/thjp tHf;Fiuapy; nfhhpa[s;sgo kPjpg; gzj;ij brYj;jp
gpujpthjpaplkpUe;J fpuag;gj;jpuk; vGjp bgw chpatuh>
5/gpujpthjp fpuag;gj;jpuk; vGjp bfhLf;f kWf;Fk; gl;rj;jpy;
kPjpg; gzj;ij ePjpkd;wj;jpy; brYj;Jtpl;L ePjpkd;wj;jpd; K:yk;
fpuag; gj;jpuk; vGjpg; bgw chpatuh>
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AS.No.325 of 2013
6/ thjp tHf;Fiuapy; nfhhpa[s;s epue;ju cWj;Jf; fl;lis
ghpfhuk; bgw chpatuh>
7/thjp bgwf;Toa ntW ghpfhuk; vd;d>
6. In support of the plaintiff's case, P.W.1 and P.W.2 were
examined and five documents were marked as Ex.A.1 to Ex.A.5. On the
side of the defendant, D.W.1 was examined and no exhibits were
marked. On considering the oral and documentary evidences adduced
by the respective parties and the submission made by the learned
counsel, the trial Court decreed the suit and enhanced the sale
consideration by 20% and directed the defendant to execute the sale
deed. Aggrieved by the same, the present first appeal has been
preferred by the defendant.
7. The learned counsel for the defendant submitted that the
time was essence of the contract. The agreement for sale categorically
specified the time limit for execution of the sale deed on or before
20.04.2009. Admittedly, the plaintiff failed to pay the balance sale
consideration till such time as agreed by him. And as such, the plaintiff
is not entitled for specific performance. In fact, the defendant only
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AS.No.325 of 2013
caused notice, which was marked as Ex.A3 dated 17.07.2009 to the
plaintiff, thereby called upon to forfeit the advance amount since he did
not pay the balance sale consideration in time as fixed in the agreement
for sale dated 05.11.2008 and duly terminated the agreement for sale.
Further stated that the plaintiff was not entitled to any right over the
agreement for sale. On receipt of summon, the plaintiff issued reply
notice only on 01.08.2009 and even then, the plaintiff failed to file suit
immediately. The present suit was filed only after two years and three
months from the date of the notice caused by the defendant.
7.1 He further submitted that even assuming that the
defendant agreed to measure the property to find out 100 cents and
hand over the encumbrance certificate along with legal opinion, no
specific date was mentioned in the agreement for measuring the
property. There is absolutely no issue in respect of the extent of the
property since the sale consideration was fixed only per cent at
Rs.15,500/-. Therefore, what are all the extent of the property,
accordingly calculate and liable to pay the sale consideration within the
time stipulated in the agreement. Though the plaintiff stated that the
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AS.No.325 of 2013
defendant cheated the plaintiff, no iota of evidence produced by the
plaintiff to substantiate the said allegation. The plaintiff marked exhibits
A1 to A5. Those are agreement for sale, notice issued by the defendant,
reply notice issued by the plaintiff and acknowledgment. Except these
documents, no other documents to substantiate the other contention
put forth by the plaintiff. Therefore, the plaintiff failed to prove his
readiness and willingness to perform his part of contract before the
expiry of the time limit stipulated in the agreement for sale. Therefore,
the trial court ought not to have decreed the suit for specific
performance. In support of his contention, he relied upon the following
judgments:
(i) Indravathi Vs. Kamala reported in 2000 (3) MLJ 106
(ii) Padmakumari & Ors. Vs. Dasayyan & Ors.
reported in 2015 (6) CTC 545
(iii) Muthukrishna Gounder Vs. Gowri and others
reported in 2014 (1) CTC 603
8. Per contra, the learned counsel for the plaintiff submitted
that the time is not essence of the contract, though specific time fixed
in the agreement for sale. On the date of agreement, the plaintiff paid a
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AS.No.325 of 2013
sum of Rs.2,00,000/- as advance towards part of sale consideration and
on 11.01.2009, further sum of Rs.3,00,000/- was paid towards part of
the sale consideration. On the said date, the possession of the suit
property was handed over and the plaintiff spent Rs.1,50,000/- for
leveling out the portion of the suit property to form house sites. The
defendant agreed to make arrangement for surveying the suit property
to determine the agreed extent of one acre. Whenever the plaintiff
requested for surveying the property, the defendant did not take any
steps for surveying the suit property. The defendant also failed to hand
over the encumbrance certificate, FMB, legal opinion within the
stipulated time as per the agreement for sale. Therefore, the time is not
essence of the contract. The plaintiff was always ready and willing to
perform his part of the contract and even then, the defendant failed to
act upon as agreed by her. In support of his contention, he relied upon
the judgment in the case of Shivaji Yallappa Patil Vs. Ranajeet
Appasheb Patil and others reported in (2018) 16 SCC 725.
9. Heard, Mr.J.Hariharan, the learned counsel for the
appellant, and Mr.S.R.Varun Karthik, the learned counsel for the
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AS.No.325 of 2013
respondent.
10. Admittedly, the plaintiff and the defendant entered into an
agreement for sale on 05.11.2008 and the plaintiff agreed to purchase
the property by fixing rate at Rs.15,500/- per cent, which was marked
as Ex.A1. The defendant received a sum of Rs.2,00,000/- as advance
towards part of the sale consideration on the date of agreement for
sale, and on 11.01.2009, further sum of Rs.3,00,000/- was paid by the
plaintiff towards part of sale consideration.
11. Now the points arising for determination in this appeal are
as follows:
(i) Whether time is essence of the contract dated
05.11.2008?
(ii) Whether the plaintiff proved his readiness and
willingness to perform his part of the contract dated
05.11.2008?
(iii) Whether the plaintiff is entitled to alternative
relief to get back the advance amount?
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AS.No.325 of 2013
12. On perusal of the agreement for sale, revealed that time
fixed for execution of sale deed till 20.04.2009. Only a sum of
Rs.5,00,000/- was paid by the plaintiff on or before 20.04.2009.
Therefore, the defendant caused legal notice on 17.07.2009, which was
marked as Ex.A3, thereby called upon the plaintiff that the defendant
cancelled agreement dated 05.11.2008 and forfeited the advance
amount paid by the plaintiff. Further stated that the plaintiff was not
entitled to seek any right based on the agreement for sale dated
05.11.2008. On receipt of the same, the plaintiff issued reply notice on
01.08.2009, which was marked as Ex.A4, thereby called upon the
defendant to comply with the demand within ten days from the date of
receipt of notice, failing which the plaintiff is entitled to seek return of
advance amount Rs.5,00,000/- with interest at the rate of 18% with
cost incurred by him for leveling the suit property at Rs.2,00,000/-.
After two years from the date of reply notice, the present suit was laid
on 17.10.2011. Even till filing of the suit, the plaintiff did not take any
steps to perform his part of the contract. When the agreement for sale
dated 05.11.2008 stipulated specific time for execution of the sale deed,
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AS.No.325 of 2013
the time is essence of the contract dated 05.11.2008. In this regard, the
learned counsel for the appellant relied upon the judgment in the case
of Muthukrishna Gounder Vs. Gowri and others reported in 2014
(1) CTC 603, wherein it is held as follows:
17.So far as the issue, whether time is the essence of
the contract or not is concerned, in Ex.A1 Agreement, it has
been stated that the sale should be completed on or before
20.03.2003. There is nothing on record to show that the
plaintiff had taken steps to get the Sale Deed executed before
20.03.2003. The only document available, asking the
defendants to execute the Sale Deed, is Ex.A2 legal notice
issued on 17.07.2003. Therefore, in the absence of any
evidence to show that the plaintiff had demanded execution of
the Sale Deed before 20.03.2003 and when a specific date has
been mentioned in Ex.A1 Agreement for the completion of the
sale, though the general proposition in the case of sale of
immovable property, there is no presumption as to time being
the essence of contract, in the case on hand, when a specific
date has been mentioned for the completion of the sale, I am
of the view that the general proposition of law is not applicable
to the facts and circumstances of the present case. The Court
may infer that Agreement is to be performed in a reasonable
time if the conditions are evident from the express terms of
the contract. It has been specifically stated in Ex.A1
Agreement that the sale should be completed on or before
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AS.No.325 of 2013
20.03.2003. In these circumstances, I find no error in the
finding of the lower Appellate Court that time is the essence of
the contract.
13. As stated supra, the plaintiff failed to perform his part of
the contract in time. Therefore, in the absence of any evidence to show
that the plaintiff had demanded execution of sale deed before
20.04.2009 and when specific date has been mentioned in Ex.A1,
agreement for sale, the agreement for sale is to be performed in time.
14. Insofar as the readiness and willingness are concerned,
except two payments paid towards part of the sale consideration on
05.11.2008 and 11.01.2009, admittedly the plaintiff did not pay any
amount towards sale consideration. The plaintiff also failed to prove
that he was ready and willing to perform his part of the contract till
20.04.2009 and even till filing of the present suit, i.e. on 17.10.2011. In
fact, the defendant caused legal notice on 17.07.2009 Ex.A3 and only
thereafter the plaintiff caused reply notice on 01.08.2009. Even after
reply notice, till filing of the suit, the plaintiff did not take any steps to
perform his part of the contract. In this regard, the learned counsel for
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the appellant relied upon the judgment in the case of Indravathi Vs.
Kamala reported in 2000 (3) MLJ 106, wherein it is held as follows:
31. Even in Ex.A-2, dated 23.1.1980 the respondent
has not stated as to why the third instalment of Rs.20,000 was
neither paid nor offered. There is a reference to return of
Rs.10,000 but as regards the further advance, the notice
stated as follows:
"My clients state that till date you have not come
forward to receive the further advance as per the agreement."
15. He also relied upon the judgment in the case of
Padmakumari & Ors. Vs. Dasayyan & Ors. reported in 2015 (6)
CTC 545, wherein it is held as follows:
21. The second important legal contention raised by
defendant Nos. 12 to 15 is that the pleadings of the plaintiff is
not in conformity with Order 6 Rule 3 CPC, clause 3 of Form No.
47 in Appendix 'A', extracted hereinabove. By a careful reading
of paragraph 6 of the plaint makes it very clear that the
averment as provided under clause 3 is not in stricto sensu
complied with by the plaintiff. The same is evidenced from the
averments made at paragraph 6 of the plaint which reads thus:
"6. The plaintiff is ready and willing to perform his part of
the contract by paying the balance of sale consideration of Rs.
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AS.No.325 of 2013
63,000/- and take the sale deed in accordance with the
provisions of the agreement deed dated 19.04.1992."
22. Upon a careful reading of the abovesaid paragraph
we have to hold that the plaintiff has not complied with the legal
requirement which is mandatory as provided under Section
16 (c) of the Specific Relief Act. Section 16(c) fell for
consideration and has been interpreted by this Court in a
number of cases, referred to supra, upon which reliance has
rightly been placed and the said decisions are applicable to the
fact situation in support of defendant Nos. 12 to 15 and,
therefore, we have to hold that the concurrent finding of fact
recorded by the High Court on Issue No. 1 is erroneous in law
and is liable to be set aside.
23. The last contention urged is whether defendant Nos.
12 to 15 (the appellants herein) are protected under Section
19(b) of the Specific Relief Act as they being the bona fide
purchasers. Learned counsel for defendant Nos. 12 to 15 has
rightly invited our attention that the non-compliance of the
contract regarding payment of balance consideration to
defendant Nos. 1 to 11 on the part of the plaintiff within nine
months is an undisputed fact and further the agreement of sale
is not registered, as is evidenced from the encumbrance
certificate obtained by defendant Nos. 12 to 15 before they
entered into an agreement (Exhibit B-1). Both the Courts below
have erroneously recorded an erroneous finding on the non
existent fact holding that the agreement of sale in favour of the
plaintiff is a registered document which, in fact, is not true. The
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AS.No.325 of 2013
same is evidenced from the encumbrance certificate. More so,
defendant Nos. 12 to 15 before entering into the agreement
with defendant Nos. 1 to 11 have made proper verification from
the competent authority to purchase the part of the suit
schedule property and got the agreement of sale (Exhibit B-1)
executed in their favour, from defendant Nos. 1 to 11 and
thereafter, they got the sale deed registered by paying sale
consideration amount. As could be seen from the agreement of
sale and registered sale deed, which is marked as Exhibit B-3, it
is very clear that defendant Nos. 12 to 15 have paid the sale
consideration amount of the property, therefore, the reliance
placed upon Section 19(b) of the Specific Relief Act as they
being the bona fide purchasers, the specific performance of
contract cannot be enforced against the transferees. Defendant
Nos. 12 to 15 being the transferee as they have purchased the
suit schedule property for value and have paid the money in
good faith and without notice of the original contract.
The Hon'ble Supreme Court of India and this Court held that when the
plaintiff failed to prove his readiness and willingness to perform his part
of the contract, the plaintiff is not entitled for decree of specific
performance. Therefore, the above judgments are squarely applicable
to the case on hand.
16. The defendant caused notice on 17.07.2009 informing
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about the cancellation of the agreement for sale, whereas the plaintiff
filed suit only on 17.10.2011, which itself would show that the plaintiff
has no funds to pay the balance sale consideration and he was not
ready and willing to perform his part of the contract. That apart, except
averments made in the plaint, the plaintiff failed to prove the
development made in the suit property subsequent to the agreement.
Therefore, the plaintiff is not entitled for relief of specific performance.
17. Insofar as the alternative relief is concerned, the plaintiff
did not pray for alternative relief to return back the advance amount.
The defendant categorically admitted that the plaintiff paid a sum of
Rs.2,00,000/- on the date of the agreement i.e. 05.11.2008 as advance
towards part of sale consideration and on 11.01.2009, further sum of
Rs.3,00,000/- was paid towards part of the sale consideration. In fact,
in Ex.A3, legal notice caused by the defendant, the defendant
categorically admitted the receipt of the above said payments.
Therefore, the plaintiff is entitled for alternative relief to get back the
advance amount with accrued interest though the plaintiff did not ask
for alternative remedy to return the advance amount.
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18. In view of the above discussion, this first appeal is allowed
and the judgment and decree passed by the learned Principal District
Judge of Krishnagiri dated 28.01.2013 in OS.No.79 of 2011 is set
aside. However, the plaintiff is entitled to get back his advance amount
with interest. Accordingly, the defendant is directed to return the
advance amount of Rs.5,00,000/- (Rupees Five Lakhs only) with interest
at the rate of 6% per annum from the date of the agreement for sale to
the plaintiff, within a period of eight weeks from the date of receipt of
copy of this order. Consequently, connected miscellaneous petition is
closed. No order as to costs.
29.06.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lok
To
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AS.No.325 of 2013
The Principal District Judge,
Krishnagiri
G.K.ILANTHIRAIYAN, J.
lok
AS.No.325 of 2013
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AS.No.325 of 2013
29.06.2021
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