Madras High Court
S.A.Sunderrajan vs Subbha Somu on 13 June, 2022
A.S.No.25 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.06.2022
CORAM :
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S(MD)No.25 of 2018
and
CMP(MD)No.1245 of 2018
S.A.Sunderrajan ... Appellant/Defendant
vs.
Subbha Somu ... Respondent/Plaintiff
Appeal Suit filed under Section 96 of the Code of Civil
Procedure, to set aside the judgment and decree dated 01.04.2016
made in O.S.No.139 of 2014 on the file of the Principal District
Judge, Trichy.
For Appellant : Mr.Raguvaran Gopalan
For Respondent : Mr.P.Saravana Kumar
Page 1 of 16
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A.S.No.25 of 2018
JUDGMENT
The defendant in O.S.No.139 of 2014 on the file of the
Principal District Judge, Trichy, is the appellant and the plaintiff in
the suit is the respondent. The respondent as a plaintiff filed the
above suit for specific performance with the alternative relief of
repayment of the advance amount. After full-fledged trial, the suit
was decreed for specific performance. Challenging the said
judgment and decree passed by the trial Court, the defendant has
filed the present appeal before this Court.
For convenience, the parties are referred to as per their
litigative status in the suit.
2. Brief facts stated in the plaint are as follows:-
The suit property belongs to the defendant. The defendant
entered into an agreement of sale with the plaintiff in respect of the
suit property on 06.02.2012, agreeing to sell his property to the
plaintiff for a sum of Rs.22,00,000/-. On the date of agreement, the
defendant received an advance amount of Rs.5,00,000/- from the
plaintiff and agreed to receive the balance sale consideration of
Rs.17,00,000/- and to execute the sale deed in favour of the plaintiff
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A.S.No.25 of 2018
within 70 days from the date of agreement. However, the defendant
failed to perform his part as per the agreement. Hence, the plaintiff
sent a letter dated 07.04.2012 to the defendant asking him to
conclude the sale, but the defendant sent a reply dated 16.08.2012
with false allegations and unilaterally cancelled the sale agreement.
Again, the plaintiff sent another letter dated 03.09.2012 and despite
receipt of the same, the defendant did not respond. Despite the
plaintiff called the defendant to receive the balance sale
consideration and to execute the sale deed, the defendant was
evading to execute the sale deed. Hence the suit.
3. Brief averments stated in the written statement are as
follows:-
The plaintiff is not entitled to the suit claim as a matter of right
since the relief of specific performance is an equitable remedy. The
execution of sale agreement and the receipt of the advance amount
of Rs.5,00,000/- from the plaintiff are admitted. The time
mentioned as 70 days in the agreement is the essence of contract.
Since the plaintiff had no sufficient money, he was not ready and
willing to perform his part of contract within the stipulated period of
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A.S.No.25 of 2018
70 days, as such, he cannot claim the relief of specific performance.
In the suit property, the defendant's brother Durairaj is residing with
his family. Even at the time of entering into the sale agreement, the
defendant explained the possession of Durairaj in the property to the
plaintiff. The defendant is aged 74 years. Taking advantage of his
age and his helpless situation, the plaintiff managed to get the sale
agreement for Rs.22,00,000/- while the market value of the
property is Rs.35,00,000/-. The plaintiff practiced undue influence
and hence, the defendant rescinded the sale agreement by letter
dated 16.08.2012 followed by reply notice dated 10.05.2014.
Hence, the suit is liable to be dismissed.
4. Based on the pleadings, the trial Court framed the
following issues:-
1) Whether the time is the essence of the contract in between
the plaintiff and the defendant?
2) Whether the plaintiff was ready and willing to conclude the
sale?
3) Whether the plaintiff is entitled to the relief of specific
performance?
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A.S.No.25 of 2018
4) Whether the plaintiff is entitled to the alternative relief of
return of the advance amount?
5) If so, whether the plaintiff is entitled to 18% interest over
the suit claim?
6) To what relief the plaintiff is entitled?
5. In order to substantiate the case of the
respondent/plaintiff, two witnesses were examined as PW1 and PW2
and 8 documents were marked as Exs.A1 to A8. On the side of the
appellant/defendant, two witnesses were examined as DW1 and
DW2 and 5 documents were marked as Exs.B1 to B5.
6. After trial, hearing the arguments advanced on either
side, the trial Court decreed the suit. Challenging the same, the
aggrieved party, namely, the defendant has filed the present appeal.
7. The learned counsel for the appellant/defendant would
submit that though 70 days of time was stipulated in the sale
agreement to execute the sale deed, the plaintiff was never ready
and willing to perform his part of contract within the said stipulated
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A.S.No.25 of 2018
time. Though the plaintiff sent a letter Ex.A2, the defendant gave a
reply in Ex.A3 cancelling the sale agreement. Thereafter, the
plaintiff sent legal notices under Exs.A4 and A5 to the defendant
long after the period of cancellation of sale agreement and the suit
was also filed after 2½ years from the date of sale agreement i.e.,
just prior to the expiry of the period of limitation for filing the suit,
which clearly shows that though the time is the essence of the
contract, the plaintiff had not paid the balance sale consideration in
time and come forward to get the sale deed executed. Further, even
after the cancellation, the plaintiff never shown his readiness and
willingness.
8. The learned counsel would further state that after the
decree, though the plaintiff deposited the balance sale consideration
in the Court, while the defendant filed the cheque application, the
plaintiff objected to the same. However, in the cheque application,
the Court directed both the parties to be present before the Sub
Registrar concerned and to complete the sale. Though the
defendant was present before the Sub Registrar concerned, the
plaintiff never turned up and even he challenged the said order
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passed by the trial Court, which clearly shows that there is an
absence of readiness and willingness on the part of the plaintiff.
Even though the plaintiff has financial capacity to pay the money, he
failed to perform his part of contract to get sale deed executed. It is
a settled principle of law that in a suit for specific performance, the
relief is discretionary relief and the plaintiff has to show his
bonafideness and he has to prove that he was always ready and
willing to perform his part of the contract. If the readiness and
willingness is absent, he is not entitled to get the discretionary relief
of specific performance. In this regard, he has relied on a decision
of the Hon'ble Supreme Court reported in (2013) 15 SCC 27,
I.S.Sikandar (dead) by LRs vs. K.Subramani and others.
9. Adding further, the learned counsel for the appellant
would submit that though the defendant cancelled the sale
agreement-Ex.A1 by way of Ex.A3 notice, the plaintiff had not
challenged the cancellation and therefore, he is not entitled to get a
decree in the suit. Unfortunately, the trial Court failed to appreciate
the evidence and also failed to look into the fact that the defendant
was always ready and willing to perform his part of contract,
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whereas, the plaintiff had not shown his readiness and willingness to
get the sale deed executed within the stipulated time. Even though
the agreement has not stated specifically time is the essence of the
contract, but however, since the defendant was in need of money,
the time of 70 days had been stipulated in the sale agreement itself
and since there is a time stipulated specifically, a forfeiture clause
had not been given, as such, time is the essence of the contract and
the plaintiff ought to have performed his part of contract within the
stipulated time in the agreement by paying the balance sale
consideration, whereas, he has filed the suit just prior to the expiry
of the period of limitation and even after the deposit of the balance
sale consideration in the Court pursuant to the decree, he did not
allow the defendant to realise that money which clearly shows that
the readiness and willingness have not been proved by the plaintiff
in a manner known to law. The trial Court failed to look into all the
legal as well as factual aspects and failed to appreciate the oral and
documentary evidence and erroneously decreed the suit. Therefore,
the judgment and decree passed by the trial Court is liable to be set
aside and this appeal has to be allowed.
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10. The learned counsel for the respondent/plaintiff would
submit that the plaintiff was always ready and willing to perform his
part of the contract. Even prior to expiry of 70 days time, the
plaintiff sent a notice to the defendant to perform his part and since
because the defendant's brother was in possession of the property,
the defendant sought time to execute the sale deed and the plaintiff
had not immediately filed the suit. Even though the plaintiff sent a
notice to the defendant within the stipulated time, since the
defendant was not ready to execute the sale deed and to hand over
the possession, after sending notice after notice, the plaintiff filed
the above suit and soon after the decree, the plaintiff immediately
deposited the balance sale consideration as directed by the trial
Court. The plaintiff also appeared before the Sub Registrar
concerned as directed by the trial Court on 15.12.2016. Since the
defendant was not ready to execute the sale deed and hand over the
possession, he did not present in the Sub Registrar's Office
concerned. Thus, the fault is only on the part of the defendant. In
order to escape from his liability, the defendant has falsely stated
that the plaintiff was not ready and willing to perform his part of the
contract.
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11. He would further state that normally, the time is not the
essence of the contract regarding the immovable property is
concerned and the delay is only on the part of the defendant. The
trial Court rightly appreciated the entire evidence and dismissed the
suit. The defendant has no merit in his case. Further, the alleged
unilateral cancellation of the sale agreement by the defendant is not
binding on the plaintiff, since the plaintiff even within the stipulated
time, sent a notice to execute the sale deed, but the defendant had
not come forward to execute the sale deed in favour of the plaintiff
and he has not approached this Court with clean hands and
therefore, the appeal is liable to be dismissed.
12. Heard both sides and perused the records.
13. Admittedly, the defendant is the vendor and the plaintiff
is the purchaser. It is not in dispute that the defendant executed a
sale agreement in favour of the plaintiff on 06.02.2012 regarding the
schedule mentioned property for a sale consideration of Rs.22 lakhs
and on the date of sale agreement, the plaintiff has also paid Rs.5
Lakhs as an advance amount to the defendant. As regards the issue
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as to whether the time is the essence of the contract in between the
plaintiff and the defendant and the alleged unilateral cancellation of
sale agreement, the learned counsel for the defendant would submit
that though the agreement has not stated specifically time is the
essence of the contract, but however, the defendant is an aged
person and he was in need of money. Therefore, the time of 70
days had been stipulated in the sale agreement. The plaintiff sent
Ex.A2-Notice to execute the sale deed, to the defendant, within 70
days time mentioned in the sale agreement. According to the
defendant, he replied through Ex.A3-Notice cancelling the sale
agreement stating that since his brother Durairaj is in possession of
the property, it is not possible to execute the sale deed within 70
days. Along with the reply notice, the defendant had not returned
back the advance amount paid by the plaintiff and also not stated
any thing about the foreclosure either in the agreement or in the
notice or in the cancellation communication. Therefore, the
defendant has not proved that time is the essence of the contract
and he has cancelled Ex.A1-sale agreement dated 06.02.2012 in a
manner known to law.
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14. The next issue to be decided is whether the plaintiff was
ready and willing to perform his part of the contract. The learned
counsel for the plaintiff submits that though the plaintiff sent Ex.A2-
Notice within 70 days to execute the sale deed and he has also sent
the subsequent communication, the defendant failed to show his
readiness and willingness to perform his part of contract. According
to the defendant, though the plaintiff sent a notice, he never paid
the balance consideration and get the sale deed executed and
therefore, he has not proved his willingness. However, the learned
counsel for the plaintiff would submit that the plaintiff was always
ready and willing to perform his part of contract and since because
the possession of the property was with the brother of the
defendant, there was a negotiation with him regarding vacating and
handing over the possession to the defendant and that is the reason
why there was a delay on the part of the defendant. Even
otherwise, when the plaintiff soon after the decree, immediately
deposited the balance sale consideration into the Court and also
appeared before the Sub Registrar's office as per the direction of the
trial Court, the defendant did not present in the Sub Registrar's
office, since because the defendant could not get back the
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possession of the property from his brother or tenant. Though the
defendant stated that his brother was in possession, but however, he
has not proved that he already vacated the schedule property and
therefore, possession of the suit property was not with the
defendant.
15. The plaintiff has proved his readiness and willingness.
Reading of the materials and the exchange of notices and also the
oral and documentary evidence shows that the plaintiff entered into
a sale agreement with the defendant and paid Rs.5 lakhs as advance
and he has to pay the balance sale consideration of Rs.17 lakhs
within 70 days to get the sale deed executed in his favour, but he
has also sent the notice Ex.P2 within 70 days, for which, the
appellant has sent a response only regarding unilaterlal cancellation
that has not been done in the manner known to law and even the
subsequent exchange of notice also clearly shows that the plaintiff
was always ready and willing to perform his part of contract. Soon
after passing of the decree, the plaintiff deposited the money and he
also appeared before the Sub Registrar's office. Though the
defendant has denied the presence of the plaintiff before the Sub
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Registrar's office, the plaintiff has shown his appearance before the
Sub Registrar and also to show the bonafideness, he deposited the
entire balance sale consideration pursuant to the decree. The
defendant is not in a position to show that the possession of the
property covered in the sale agreement is with him and he is ready
to hand over possession. Therefore, in the absence of the same, this
Court is of the opinion that the respondent/plaintiff was ready and
willing to perform his part of the contract. The plaintiff has also
proved his case that he was ready and willing to perform his part of
contract and the trial Court also rightly appreciated the evidence and
granted a decree in favour of the plaintiff. Since the cancellation of
sale agreement is not in the manner known to law, the judgment
relied on by the learned counsel for the appellant is not applicable to
the present case.
16. The appellate Court being a fact finding Court, it has to
re-appreciate the entire pleadings, oral and documentary evidence.
On a careful perusal of the entire pleadings, oral and documentary
evidence and also the judgment of the trial Court, this Court does
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not find any perversity or good reason to interfere with the judgment
of the trial Court. Since the respondent/plaintiff already filed E.P.,
he can proceed with the E.P, in case, the appellant/defendant has
not executed the decree as contemplated under the decree passed
by the trial Court.
17. Accordingly, the Appeal Suit is dismissed with costs.
Consequently, connected miscellaneous petition is closed.
13.06.2022
bala
Index : Yes / No
Internet : Yes
To
The Principal District Judge,
Trichy.
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A.S.No.25 of 2018
P.VELMURUGAN, J.
bala
JUDGMENT MADE IN
A.S(MD)No.25 of 2018
DATED : 13.06.2022
https://www.mhc.tn.gov.in/judis
