Madras High Court

Kamaladevi vs I.S.Kumar Muthuram .. 1St on 15 June, 2022

                                                                                 S.A.(MD) No.38 of 2011



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 15.06.2022

                                         CORAM : JUSTICE N.SESHASAYEE

                                                  S.A.(MD) No.38 of 2011

                     M.Paulraj (Died)

                     1.Kamaladevi
                     2.Suganya
                     3.Prasad                                 .. Appellants/Respondents 3-5/
                                                                 Lrs of the Plaintiff

                                                           -vs-


                     1. I.S.Kumar Muthuram                    .. 1st Respondent/ Appellant/
                                                                 1st Defendant

                     2. Kalivaradan                           .. 2nd Respondent/2nd Respondent/
                                                                 2nd Defendant

                     Prayer:- Second Appeal filed under Section 100 of Civil Procedure Code to
                     set aside the judgment and decree dated 27.11.2008 passed in A.S.No.100 of
                     2008 on the file of the Principal District Judge, Tiruchirappalli, reversing
                     the judgment and decree dated 07.01.2008 passed in O.S.No.640 of 1995 on
                     the file of the I Additional Sub-ordinate Judge, Tiruchirappalli.

                                  For Appellant      :        Mr.J.Anandhavalli

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                                                                                     S.A.(MD) No.38 of 2011



                                   For Respondents      :         Mr.P.Thiyagarajan for R1
                                                                  Mr.K.Govindarajan for R2


                                                            JUDGMENT

The legal heirs of the plaintiff in a suit for specific performance in O.S.No.

640 of 1995 on the file of the I Additional Sub-Court, Thiruchirappali, are

the appellants herein. The suit was decreed by the trial Court, but the same

was reversed by the First Appellate Court in A.S.No.100 of 2008.

2. For narrative convenience, the parties are referred to by their rank before

the trial Court.

3. The brief facts are as follows:

(a) The suit property belonged to the defendants, who admittedly

entered into Ext.A.1-unregistered sale agreement, dated

13.05.1994 for purchase with the plaintiff. The total sale

consideration is fixed at Rs.2,39,062/-. The plaintiff had paid

Rs.100/- as advance under the document and a week later, he

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paid Rs.20,000/- as additional advance. The time for

performance was fixed at three months. The suit property is in

the possession of tenants and the term in the sale agreement

stipulated that the vendor (defendants) delivered the vacant

possession on the date of registration of the sale deed.

(b) Be that as it may, the plaintiff came to know that the first

defendant/vendor was afoot to sell the suit property to strangers

and hence, he laid O.S.No.1733 of 1994 for bare injunction to

restrain the first defendant from alienating the property. Initially,

the trial Court granted an order of injunction and later, vacated

it. Subsequently, the first defendant had sold the property to the

second defendant. Promptly, the plaintiff laid the present suit in

O.S.No.640 of 1995 for specific performance.

taken up two defences; (i) that the plaintiff is not ready and

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willing to perform his part of the contract, and (ii) the time is

essence of the contract.

(d) The plaintiff also laid another suit in O.S.No.1253 of 2003

against the first defendant herein and one Ramasami for bare

injunction.

4.1. Both the aforesaid suits jointly tried. Before the trial Court, the plaintiff

examined himself as P.W.1 and the first defendant examined himself as

D.W.1. For the plaintiff, he had filed Ext.A.1 to Ext. A6, of which, Ext.A1

is the sale agreement. It is also seen from the judgment of the trial Court

that the Court has admitted certain reports of the Commissioner filed in

some other suit in O.S.No.1733 of 1994 and marked them as Ext.C1 and

Ext.C2, but without examining the Commissioner.

4.2. Both the suits were disposed of by a common judgment of the I

Additional Subordinate Court, Tiruchirappalli, dated 07.01.2008. In

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particular, the trial court decreed the suit for specific performance. The first

defendant to the suit preferred a first appeal in A.S.100/2008 before the

Principal District Court, Tiruchirapalli and here the plaintiff faced a reversal

in fortune when the first appellate court allowed the appeal and dismissed

the suit. It may be stated that during the pendency of the first appeal, the

plaintiff died and his legal representatives defended the appeal.

5.1. The line of reasoning of the first appellate court is that the suit for

specific performance was hit by Order II Rule 2 CPC as it was preceded by

a suit for bare injunction on a cause of action founded on the very same

Ext.A-1 agreement; and that the plaintiff had not established his readiness

and willingness to perform his part of the contract.

5.2. Now, aggrieved by the decree of the first appellate court, the legal

representatives of the plaintiff had preferred this appeal. It is reminded that

the appeal arises only out of O.S.640/1995 laid for specific performance,

and this court is not concerned with the other suit in O.S. No.1253 of 2003

that came to be tried along with it.

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6. This appeal is admitted for considering the following substantial

questions of law:

(a) Whether the lower Appellate Court was right in holding that the suit for specific performance is barred under Order 2 Rule 2 C.P.C without any pleading by the defendant?

(b) Whether the lower Appellate Court was right in holding that the time is essence of the contract under Ex.A.1 when that was not the agreement between the parties?

(c) Whether the lower Appellate Court was right in holding that the appellant has not proved his readiness and willingness to perform his part of the contract overlooking the evidence produced by the appellant?

7. The learned Senior Counsel appearing for the appellants made the

following submissions:

● The finding of the First Appellate Court that the suit is hit by Order 2

Rule 2 C.P.C., is not right approach to the issue. The First Appellate

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Court overlooked Ext.A6, an order passed in I.A.906 of 1994 in O.S.

No.1733 of 1994, which application was filed by the plaintiff for

interim injunction against alienation of the property, wherein the trial

Court had observed that if at all the plaintiff need to have remedy, he

should file a suit for specific performance.

● So far as the findings on perceived lack of readiness and willingness

on the part of the plaintiff to perform his part of the contract

concerned, the Appellate Court overlooked Ext.A.5, bank passbook of

the plaintiff. It is true that the passbook does not show that the

plaintiff had requisite funds as on the date of agreement, but then

Ext.A.5 also shows that subsequently the plaintiff had enough funds

in the account. After all the purchaser of a property need not jingle

coins before the Court, and his ability or capacity to mobilise the

funds itself can be reckoned for evaluating his readiness and

willingness to perform his part of the contract.

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8. The learned counsel for the first respondent relied on the authority of the

Hon'ble Supreme Court in Shenbagam and others vs. K.K.Rathinavel

[2022 (2) Supreme 415] and laid considerable emphasis on paragraph No.36

thereof, which reads:

36. True enough, generally speaking, time is not of the essence in an agreement for the sale of immovable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the Courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract.....”

9. The scenario presented in this case is no different from one involved in

the suit in Shenbagam case. Hence, this Court does not want to interfere

with the findings of the First Appellate Court. Substantial question of law

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No.2 is answered against the defendant. So far as the substantial question of

law No.1 is concerned, the suit in O.S.No.1733 of 1994 itself was tried

along with the present suit for specific performance, and rendering a finding

on this question may not be necessary. Turning to the question of the third

substantial question of law, there may be merits in the submissions of the

learned counsel for the appellant that a purchaser under the sale agreement

need not jingle the coins, but, even if the plaintiff is presumed to be ready