Madras High Court
S. Ravichandran vs S.K.Nizamuddin(Died) on 18 April, 2022
O.S.A.No.101 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.04.2022
CORAM :
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
and
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
O.S.A.No.101 of 2018
S. Ravichandran ... Appellant/Plaintiff
Vs
1.S.K.Nizamuddin(died)
2.S.K.Sharfuddin
3.S.K.Shahabuddin
4.S.K.Shamsuddin
5.S.K.Ilamuddin
6.S.K.Alimudeen
7.Mohammed Aquil
8.L.Shabana Jabeen
9.K.A.Nazreen Banu
10.K.N.Ahmed Zaki Ameen
11.K.N.Ahmed Shaik Fahad ...Respondent/defendants
(R9 to R11 brought on record as legal heirs of the deceased 1st respondent
viz. S.K.Nizamuddin vide order dated 17.09.2021 made in CMP.Nos.11862
of 2021, CMP.No.11870 of 2021 and CMP.No.11866 of 2021 in
OSA.No.101 of 2018)
1/20
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
PRAYER : Original Side Appeal filed under Order XXXVI Rule 1 of
Original Side Rules read with Clause 15 of the letters patent Act, prayed to
set aside the Judgment and decree dated 04.12.2017 made in C.S.No.428 of
2008 on the file of this Court.
For Appellant : Mr.V.Manohar
For Respondents : Mr.G.R.M.Palaniappan
JUDGMENT
(Judgment of the Court was passed by T.V.Thamilselvi, J)
Challenging the Judgment and decree dated 04.12.2017 passed in
C.S.No.428 of 2008, the plaintiff has filed the above appeal.
2. The appellant/plaintiff filed the suit for specific performance in
respect of the agreement for sale dated 24.10.2007 against the respondents-
defendants. After contest, the suit was dismissed. Aggrieved over the
same, the plaintiff has preferred the above original side appeal.
3. For the sake of convenience, the parties are referred to as plaintiff
and defendants.
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
4. The Brief facts of the case are as follows:-
(i) According to the plaintiff, defendants 1 to 6, who are the owners
of the suit property, offered to sell the same for consideration of
Rs.30,00,000/- (Rupees Thirty Lakhs Only) to the plaintiff, who is also a
tenant, for commercial purposes, of a portion of the suit property in the
ground floor and they entered into a sale agreement on 24.10.2007. As per
the terms of the agreement, the defendants paid an advance of
Rs.5,10,101/- on the date of the agreement and a period of 3 months was
fixed for performance of the contract. The sale agreement also
contemplated delivery of vacant possession of the first floor of the premises
and also to close the entrance/ways to the adjacent building from the first
floor by the vendors.
(ii) The plaintiff would further contend that though the defendants 1
to 3, 5 and 6, who are the brothers, had agreed to get the signature of the 4th
defendant in the suit agreement or to get an authority from the 4 th defendant
for sale of the property in favour of the plaintiff, however, failed to keep up
their promise and the 1st defendant being the eldest, agreed to obtain the
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
signature of the 4th defendant, at the time of the execution of the sale deed.
Believing the words of the 1st defendant, the plaintiff did not press hard for
the 1st defendant signing the sale agreement. Since the defendants did not
come forward to comply with the terms of the contract, viz. to evict the
tenant in the first floor and to close the ways and entrances to the adjacent
building, the plaintiff had issued a notice on 19.02.2008 calling upon the
defendants to comply with the terms of the agreement by executing the sale
deed within three days.
(iii) The defendants 1 to 3, 5 and 6 sent a reply notice dated
22.02.2008, contending that the plaintiff has not come forward to pay the
balance sale consideration within the time stipulated under the agreement
dated 24.10.2007, despite the fact that they have taken steps to comply with
Clauses 5 and 6 of the agreement of sale. In the reply notice, the defendants
further stated that in view of the failure on the part of the plaintiff to
comply with the terms of the agreement, the defendants called upon the
plaintiff to receive a sum of Rs.4,00,000/- after deducting 25% from and out
of the said advance amount as per the Clause 8 of the said agreement and to
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
cancel the sale agreement within three days. A demand draft for a sum of
Rs.4,00,000/-, dated 22.02.2008 was also enclosed with the said reply
notice. The plaintiff sent a re-joinder to the said reply on 26.02.2008,
returning the demand draft. Thereafter, the plaintiff filed the suit for
specific performance of the agreement of sale dated 24.10.2007. During the
pendency of the said suit, the defendants 1 to 6 sold the suit property to the
defendants 7 and 8 on 30.05.2008 and they were also impleaded as
defendants in the suit.
(v) In the written statement filed by the defendants 1,2,3,5 and 6,
they have admitted the execution of the sale agreement and receipt of
advance amount of a sum of Rs.5,10,101/-. According to the defendants,
time is the essence of the contract as per the agreement dated 24.10.2007.
Further they have contended that the plaintiff is not entitled for the relief of
specific performance, as he has not come forward to pay the balance sale
consideration within the stipulated time and they denied the allegation that
they promised to get the signature of the fourth defendant, who is living
abroad. Further, they claimed that the plaintiff was not ready and willing to
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
perform his part of the contract within the stipulated time. Hence, they
rescinded the contract by way of reply notice stating that the plaintiff is not
entitled to the relief of specific performance.
(vi) Though the defendants 7 and 8 have filed separate written
statement, being the subsequent purchasers and the defence raised by them
is similar to that of defendants 1 to 3,5 and 6, they are not entitled to put up
any other defence.
5. Considering the submissions made by the learned counsel on
either side, the learned Single Judge found that the plaintiff has not
established his readiness and willingness to pay the balance sale
consideration and get the sale deed executed in his favour and dismissed
the suit.
6. Aggrieved over the same, the plaintiff-appellant has preferred
this Original Side Appeal.
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
7.1 Mr.V.Manohar, learned counsel appearing for the
appellant/plaintiff submitted that though the 4th respondent/4th defendant
has not signed in the sale agreement, the respondents 1 to 3, 5 and 6/
defendants 1 to 3, 5 and 6 being co-owners of the property had consented
with the appellant/plaintiff for the sale of the property and hence, it has no
impact on the performance of the terms of the contract for the reason that
the 4th defendant is represented by other co-owners of the property.
Further the learned counsel submitted that the respondents have not taken
any steps to fulfil their part of the agreement with regard to the eviction of
the tenant as well as the closure of the entrance leading to the first floor,
thereby, committing breach of terms. The learned counsel also submitted
that the appellant was always ready and willing to perform his part of the
contract.
7.2 The learned counsel further submitted that as per the terms of
the contract, defendants 1 to 3,5 and 6 have not complied with Clauses 4
and 6, viz, to vacate the tenant in the first floor and to close the ways and
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
entrance to the adjacent building. Hence, a notice dated 19.02.2008 was
issued calling upon the defendants to comply with the terms of the
agreement and also to execute the sale deed within three days from the
receipt of that notice. But, instead of complying with the said terms, the
defendants sent a reply notice dated 22.02.2008 enclosing the Demand
Draft for a sum of Rs.4,00,000/- after deducting 25% out of advance amount
of Rs.5,00,000/- by rescinding the contract stating that the appellant-
plaintiff was not ready to perform him part of the contract within the
stipulated period of three months.
7.3 The learned counsel appearing for the appellant, in support of
his contentions, has relied upon the following judgments:-
(i) 2020 (3) SCC 280: (SC) [C.S.Venkatesh v. A.S.C. Murthy],
wherein the Hon'ble Supreme Court held as follows:-
“ ........... 17. In N.P. Thirugnanam (Dead) by LRs. v. Dr.
R. Jagan Mohan Rao and Others1, it was held that
continuous readiness and willingness on the part of the
plaintiff is a condition precedent to grant of the relief of
specific performance. This circumstance is material and
relevant and is required to be considered by the court
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
while granting or refusing to grant the relief. If the
plaintiff fails to either aver or prove the same, he must
fail. To adjudge whether the plaintiff is ready and
willing to perform his part of the contract, the court
must take into consideration the conduct of the plaintiff
prior to and subsequent to the filing of the suit along
with other attending circumstances. The amount of
consideration which he has to pay to the defendant must
necessarily be proved to be available.
18. In Pushparani S. Sundaram and Others v. Pauline
Manomani James (deceased) and Others2, this Court
has held that inference of readiness and willingness
could be drawn from the conduct of the plaintiff and the
totality of circumstances in a particular case. It was held
thus:
“5..... So far these being a plea that they
were ready and willing to perform their part
of the contract is there in the pleading, we
have no hesitation to conclude, that this by
itself is not sufficient to hold that the
appellants were ready and willing in terms
of Section 16(c) of the Specific Relief Act.
This requires not only such plea but also
proof of the same. Now examining the first
of the two circumstances, how could mere
filing of this suit, after exemption was
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
granted be a circumstance about
willingness or readiness of the plaintiff.
This at the most could be the desire of the
plaintiff to have this property. It may be for
such a desire this suit was filed raising such
a plea. But Section 16(c) of the said Act
makes it clear that mere plea is not
sufficient, it has to be proved.” 1995 (5)
SCC 115 2002 (9) SCC 582
19. Similar view has been taken by this Court
in Manjunath Anandappa URF Shivappa
Hanasi v. Tammanasa and Others [2003(10)
SCC 390 ] and Pukhraj D. Jain and Others v. G.
Gopalakrishna [2004(7) SCC 251].
(ii) AIR 2021 Supreme Court 5581 [Sughar Singh v. Hari Singh
(Dead) Through LRS and Others] wherein the Hon'ble Supreme Court
held as follows: -
“ .... 5.1. At the outset it is required to be noted that
the appellant herein – original plaintiff instituted the
suit for specific performance of the agreement to sell
dated 10.10.1976. The learned Trial Court as well as the
learned First Appellate Court decreed the suit in favour
of the plaintiff. Both, the learned Trial Court as well as
the learned First Appellate Court held all the issues in
favour of the plaintiff including the issue that the
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
plaintiff was always ready and willing to perform his
part of contract. However, the High Court in exercise of
powers under Section 100 of the CPC has reversed the
concurrent findings recorded by both the Courts below
on readiness and willingness, mainly / solely on the
ground that there are no specific averments in the plaint
which are required as per section 16(c) of the Act. The
High Court has also allowed the appeal and
consequently dismissed the suit for specific performance
on the ground that the relief of specific performance is
the discretionary relief under Section 20 of the Act and
that even though the execution of the agreement to sell is
proved and even the plaintiff was found to be always
ready and willing to perform his part of the obligation
under the agreement to sell, the decree of specific
performance is not automatic and such grant of decree
is dependent upon the principles of justice, equity and
good conscience.
...............
7. Even otherwise it is required to be noted that
as such there were concurrent findings of fact recorded
by the learned Trial Court as well as the learned First
Appellate Court on readiness and willingness on the
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
part of the plaintiff, which were on appreciation of
evidence on record. Therefore, in exercise of powers
under Section 100 of the CPC the High Court ought not
to have interfered with such findings of fact unless such
findings are found to be perverse. Having gone through
the findings recorded by the learned Trial Court as well
as the learned First Appellate Court on readiness and
willingness on the part of the plaintiff, we are of the
opinion that findings recorded cannot be said to be
perverse and/or contrary to the evidence on record. On
the contrary High Court has ignored the necessary
aspects on readiness and willingness which are stated
herein above including the conduct on the part of the
parties. ............”
8. Countering the submissions made by the learned counsel for
the appellant, Mr.G.R.M. Palaniappan, learned counsel appearing for the
respondents/defendants submitted that within the stipulated period of
three months, the appellant-plaintiff had not expressed his readiness and
willingness to perform his part of the contract by tendering the balance sale
consideration. Instead, he issued notice calling upon the respondents-
defendants to perform their part of the contract. Hence, as per Clause 8 of
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
the agreement, the respondents had returned the amount, by rescinding the
contract.
9. On a careful consideration of the materials available on record
and the submissions made by the learned counsel on either side, it could
be seen that the appellant-plaintiff had issued a lawyer's notice dated
19.02.2008 i.e. after 90 days of the period mentioned in the agreement
calling upon the defendants to comply with the terms of the agreement and
to execute the sale deed within three days. The plaintiff, who was
examined as P.W.1 admitted that he had deposited the amount only in the
month of January 2008 i.e., after expiry of 90 days, as stipulated in the sale
agreement. Since the appellant-plaintiff was not ready and willing to
perform his part of the contract, the sale could not be completed and this
fact was appreciated by the learned Single Judge and rightly concluded that
the appellant-plaintiff was not ready and willing to perform his part of the
contract and mere possession of amount in the account is not sufficient to
prove that he was ready and willing to pay the balance sale consideration. It
is pertinent to note that the amount deposited in the appellant-plaintiff's
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
account after three months was withdrawn by him subsequently. Taking
note of the said fact, the learned Single Judge rightly observed that the
appellant-plaintiff has not established his readiness and willingness to pay
the balance of sale consideration and get the sale deed executed in his
favour.
10. Another contention put forth by the learned counsel appearing
for the appellant that the respondents-defendants failed to comply with
Clauses 4 and 6 of the agreement with regard to the eviction of the tenant
as well as the closure of the entrance leading to the first floor, the learned
counsel appearing for the respondents-defendants submitted that already
the first floor was lying vacant and there was no need to evict the tenant.
Even during the cross examination of D.W.1, he had categorically admitted
that the tenant in the first floor had vacated the premises even prior to the
execution of Ex.P1 agreement of sale and the suggestion made to the said
witness was also answered in the affirmative. Clause 4 of the agreement
reads as follows:-
“4. Vendors agreed to vacate and hand over
vacant possession of the first floor to the
purchaser before registering the sale deed.”
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
11. On a reading of the Clause 4, it is clear that before registering
the sale deed, the defendants agreed to hand over the vacant possession of
first floor. Therefore, vendors/defendants are actually in the possession of
the first floor, and the same is not in the occupation of the tenant. Hence,
the objection raised by the appellant-plaintiff that the respondents-
defendants have not taken any steps to vacate the tenant is not acceptable
one and the same is rightly appreciated by the learned Single Judge which
needs no interference.
12. As per Clause 4 and 6 of the agreement, the vendors agreed to
close the entrance/ways to adjacent building from the suit schedule building.
Thus, before registering the sale deed, all these conditions are required to be
fulfilled by the respondents-defendants. But, as discussed above, within the
stipulated time, the appellant-plaintiff has not expressed his readiness and
willingness to perform his part of the agreement by tendering the balance
sale price, hence by invoking Clause 8 of the agreement the defendants
returned the balance amount by rescinding the contract through their reply
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
notice (Ex.P.4). Clause 8 of the agreement reads as follows:-
“8. Both the parties are entitled to the remedies
available under the specific relief act, for specific
performance of the terms of this agreement of the sale
deed. If the vendors failed to perform this agreement of
sale, the vendors shall return the advance of Rs.5 lakhs,
plus25% of the said advance of Rs.5 Lakhs together to
the purchaser and if the purchaser failed to perform this
agreement of sale in the stipulated time, the vendor shall
return the advance of Rs.5 lakhs, after deducting 25% of
the said advance to the purchaser.”
13. The effect of Clause 8 is that if the vendors failed to perform
their part of the contract they will have to return the advance plus 25% of
the advance amount and in default on the part of the purchaser/plaintiff, he
would be entitled to refund of amount less 25%. Accordingly, the
respondents-defendants returned a sum of Rs.4,00,000/- after deducting
25% of the advance amount of Rs.5,00,000/-. . Therefore, the objection
raised that clauses 4 and 6 have not been complied with by the
respondents- defendants as per the terms of the agreement, is not
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
acceptable. Considering all these facts, the learned Single Judge rightly
rejected the relief of specific performance in favour of the plaintiff.
14. Though the learned counsel for the appellant submitted that the
4th respondent/4th defendant had agreed for the sale, there is nothing on
record to show that there was any such agreement or assurance made by the
4th respondent/4th defendant. A perusal of the agreement reveals that the
4th defendant had not signed the agreement. This fact was also admitted by
both the parties. Hence the learned Single Judge rightly concluded that the
agreement could not be enforced against the co-sharers, who were not
signatory of the agreement and it shall not amount to breach of terms.
Hence, the learned Single Judge rightly concluded that the agreement could
not be enforced against the co-sharers, who were not signatory of the
agreement. Hence, the objection raised by the appellant/plaintiff that the
agreement signed by other co-sharers would bind the absentee co-
sharer/fourth defendant, is liable to be rejected.
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
15. The contention of the appellant that in order to evade his
claim, the respondents 1 to 6/defendants 1 to 6 sold the property to
respondents 7 and 8/ defendants 7 and 8 during the pendency of the suit,
cannot be agreed for the reason that the respondents 7 and 8/ defendants 7
and 8 being pendente lite purchasers, their impleading shall not alter the
position. Since the appellant-plaintiff failed to proof his case by adducing
oral and documentary evidences, the learned Single Judge had rightly
dismissed the suit for specific performance. Further, the subsequent sale
made by the other defendants shall not bind the plaintiff in any manner
whatsoever for the reason that they are not signatories to Ex.P1 sale
agreement.
16. Though there is no dispute with regard to the ratio laid down in
the Judgments of the Hon'ble Supreme court relied upon by the learned
counsel appearing for the appellants, since the facts and circumstances of
the case differs from the case on hand, the said Judgments are not
applicable to the present case.
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
17. The appellant-plaintiff, who approached the Court for the relief
of specific performance neither proved that he was ready and willing to
perform his part of the contract, nor proved that he complied with all the
terms of the agreement on his part. The learned Single Judge rightly
concluded that the plaintiff is not entitled for the relief of specific
performance. We do not find any round to interfere with the judgment and
decree passed by the learned Single Judge. Accordingly, the Original Side
Appeal is dismissed. No costs.
[M.D., J.] [T.V.T.S., J.]
18.04.2022
pbl/Rj
https://www.mhc.tn.gov.in/judis
O.S.A.No.101 of 2018
M.DURAISWAMY, J.
and
T.V.THAMILSELVI, J
pbl
O.S.A.No.101 of 2018
18.04.2022
https://www.mhc.tn.gov.in/judis
