Madras High Court
Jothimaniammal vs Mohammed Rabiq on 30 March, 2022
A.S(MD)No.02 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated :30.03.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S(MD).No.02 of 2019
and C.M.P(MD)No.148 of 2019
JothimaniAmmal ... Appellant/Defendant
Vs.
Mohammed Rabiq ... Respondent/Plaintiff
Prayer :This Appeal Suit is filed under Section 96 of the Civil
Procedure Code against the judgment and decree dated 19.07.2018 made
in O.S.No.24 of 2012 on the file of the Additional District cum Fast
Track Court, Kumbakonam.
For Appellant :Mr.V.K.Vijayaraghavan
For Respondent :Mr.S.Deenadhayalan
For Mr.B.Anandan
J U D G M E N T
This Appeal Suit has been preferred challenging the judgment and
decree passed by the learnedAdditional District Judge, (FTC),
Kumbakonam, dated 19.07.2018, made in O.S.No.24 of 2012.
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A.S(MD)No.02 of 2019
2. The appellant was the defendant in the suit; the respondent/plaintiff
has filed the suit for specific performance on the basis of a sale
agreement dated 17.09.2007; as per the case of the plaintiff, the suit
property belongs to the defendant; on 17.09.2007, he entered into a sale
agreement with the defendant in respect of the suit property for a sale
consideration of Rs.19,00,000/- (Rupees nineteen lakhs only) and gave
Rs.5,00,000/- (Rupees five lakhs only) as advance; time for performance
of contract was agreed at three months; however, the time for
performance was being extended from time to time as under:
Date of extension Time
16.12.2007 3 months
15.03.2008 6 months
14.09.2008 6 months
08.07.2009 6 months
2.ii). The plaintiff is an Engineer, Architect and he is also doing business
in real estate; despite the plaintiff was ready and willing to perform his
part of contract, the defendant was protracting the time without
complying the terms of contract and hence, on 28.06.2012, the plaintiff
sent a pre-litigation notice and that was received on 29.06.2012; since
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A.S(MD)No.02 of 2019
the defendant did not come forward to execute the sale deed, the plaintiff
has filed the suit for specific performance; he also sought an alternative
relief for refund of advance amount of Rs.5,00,000/- (Rupees five lakhs
only) with interest at the rate of 12%.
3.The defendant has admitted the execution of the sale agreement and
also the periodical extension of time as mentioned above; however, for
the extension of time, the defendant is no way a reason; only because the
plaintiff was not able to pay the sale consideration, the time needed to be
extended each time; the suit has been filed after three years from the date
of expiry of the last extension of time; despite he delayed 6 years time,
he has filed the suit to purchase for Rs.19 lakhs; the defendant is a senior
citizen, who intended to sell the property just for the purpose of
purchasing a small house site for herself and to perform her daughter’s
marriage; the defendant has cooperated with the plaintiff to get the
contract completed even by letting him to take premises with the
superstructure; since the plaintiff insisted vacant site, the defendant
vacated the tenants in the shops of the building and informed the plaintiff
that the building is ready; but the plaintiff did not come forward to pay
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A.S(MD)No.02 of 2019
the balance sale consideration and get the sale deed executed in time;
hence, the suit should be dismissed.
4.On the basis of the rival submissions, the learned trial Judge has
framed the following issues:
1.17.09.2007 njjpapl;ltHf;Ffpuacld;gof;ifg; gj;jpuk; cz;ikahdjh?
mJbry;yj;jf;fjh?
2. thjptHf;fpy; nfhhpa[s;sVe;wijMw;Wfghpfhuk; thjpf;Ffpilf;ff;
Toajh?
3. thjptHf;fpy; khw;Wg; ghpfhukhfnfhhpa[s;sbjhifthjpf;Fmth;
nfhhpa[s;sgotl;oa[ld; fpilf;fj;jf;fjh?
4. thjptHf;Fr; brhj;ijfpuak;
bgwtpUg;gj;JlDk;>jahuhft[k; ,Ue;Jte;jhuh?
5. thjpf;Fvj;jifaepthuzk; fpilf;fj;jf;fJ?
5.During the course of trial, on the side of the plaintiffs, four witness
were examined as P.W.1to PW.4 and thirteen documents were marked
as Ex.A.1 to Ex.A.13. On the side of the defendant, the defendant has
examined himself as D.W.1 and threedocumentswere marked as Ex.B.1
to Ex.B.3.
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A.S(MD)No.02 of 2019
6. At the conclusion of the trial and after considering the materials
available on record, the learned trial Judge has decreed the suit for
specific performance. Aggrieved over that, the defendant has preferred
this Appeal Suit.
7. The learned counsel for the appellant/defendant submitted thatthe suit
itself is barred by limitation in view of the latest judgment of the Hon’ble
Supreme Court held in Urvashi Aggarwal (since deceased) through lrs
and another Vs. KushagrAnsal (successor in interest of erstwhile
defendant No.1 Mrs.Suraj kumara) and others reported in 2020(2)
LW 803; the plaintiff was not at all ready and willing to perform his part
of contract and it was only at the default of the plaintiff, the defendant
needed to extend the time periodically; even a suit has been filed after
three years from the date of expiry of last extension and that would show
the lack of readiness and willingness on the part of the respondent/
plaintiff. The appellant being a senior citizen had plans about the sale
consideration she might get out of the sale of the suit property; even at
the time of execution of sale, she was 70 years old and that was taken
advantage by the plaintiff and now he wanted to get the sale deed
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A.S(MD)No.02 of 2019
executed in respect of the suit property, to which value had increased
multiple times; due to escalation of cost of living and the property value
when the sale amount agreed before six years, the appellant could not
purchase a house cite and cannot celebrate marriage of her daughter; the
conduct of the respondent/plaintiff would show that he just wanted to get
the undue enrichment by delaying the sale; the learned trial Judge has
omitted to appreciate the facts and evidence in a proper perspective and
granted the relief of specific performance; despite the balance of equity
was in favour of the appellant, the learned trial Judge omitted to consider
and granted the relief of specific performance by overlooking the default
on the part of the respondent; hence, the appeal should be allowed.
8.The learned counsel for the respondent/plaintiff submitted that even
though time for performance of contract was extended each time, it was
with the consent of the defendant and the defendant herself knows that
the respondent/plaintiff is a person of means and that he could complete
the sale transaction by giving the balance sale consideration; it is
because of the default on the side of the appellant in not making the
vacant possession ready for handing over the sale transaction, the time
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A.S(MD)No.02 of 2019
for contract was needed to be extended each time; the appellant has
preferred this appeal just in order to enrich herself taking advantage of
the present appreciation of value of the suit property; the learned trial
Judge has rightly dealt with the evidence available on record and found
the equitable relief of specific performance in favour of the plaintiff and
the judgment does not require any interference.
9. Points for consideration:
i)Whether the suit filed by the plaintiff itself is barred by
limitation?
ii)If it is proved that the suit is not barred by limitation,
whether the plaintiff had proved his readiness and
willingness to perform his part of contract?
10. The fact about the execution of sale agreement dated 17.09.2007 is
not disputed. The entitlement of the appellant to the suit property is also
not in dispute; The fact that time to perform the contract is being
extended from time to time with the consent of both parties is also
admitted. The contention of the appellant is that the time was extended
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A.S(MD)No.02 of 2019
each time because of the lack of readiness and willingness on the part of
the respondent/plaintiff and the appellant/defendant was nowhere
responsible. The learned counsel for the appellant relied on the recent
judgment of the Hon’ble Supreme Court held in Urvashi Aggarwal
(since deceased) through lrs and another Vs. KushagrAnsal
(successor in interest of erstwhile defendant No.1 Mrs.Suraj
kumara) and others reported in 2020(2) LW 803. The attention of this
Court was drawn to the following paragraph in the judgment:
10. There are essentially two points that arise for
ourconsideration in this case. The first relates to
limitation. Aspecific date i.e. 31.03.1975 was fixed for
performance ofthe Agreement, i.e. execution of the sale
deed. As perArticle 54 of the Schedule to the Limitation
Act, when adate is fixed for performance of the contract,
the period oflimitation is three years from such date. The
cause ofaction has arisen on 31.03.1975 and the suit
ought to havebeen filed within three years from that date.
Admittedly,the suit was filed only in the year 1987.
However, thesubmission of the Plaintiffs is that the date
fixed forperformance of the Agreement stood extended by
theconduct of the parties. It was submitted that even
after31.03.1975, the Defendants were pursuing the
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A.S(MD)No.02 of 2019
applicationfiled for permission before the L&DO with the
cooperationof the Plaintiffs. The further submission of the
Plaintiffs isthat without the permission of the L&DO, the
sale deedcould not have been executed on 31.03.1975.
Therefore,the Plaintiffs submit that the date fixed by the
agreementfor the execution of the sale deed stood
extended. It issettled law that the vendee cannot claim that
the cause ofaction for filing the suit has not arisen on the
date fixed inthe contract on the ground that certain
conditions in thecontract have not been complied with.
11. On a detailed consideration of the evidence time is found to be
extended by the conduct of the parties. Despite it is held that when a date
was fixed for performance of contract the period of three years under
part II of Article 54 of the Schedule of the Limitation Act should be
calculated from the said date irrespective of the fact that whether the
time was extended later. In the case in hand, the date of agreement was
on 17.09.2007 and time to perform the contract was agreed at three
months. So, as per the terms, cause of action would arise from
17.12.2007. Admittedly, the suit has been filed in the year 2012. The
learned counsel for the respondent submitted that the time for limitation
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A.S(MD)No.02 of 2019
should be taken from the date of expiry till the date of last extension and
not from 17.12.2007. But however, in the above judgment of the Hon’ble
Supreme Court it is held otherwise.
12. Even in the another judgment of the Hon’ble Supreme Court in
Saradamani Kandappan Vs. S.Rajalakshmi and othersreported in
2011(4) CTC 640, it is held that the suit for specific performance need
not be decreed merely because it is filed within the limitation by ignoring
the time limit stipulated in the agreement. In fact in the above said
judgment, the earlier citation made in K.S.Vidyanadam and others Vs.
Vairavan reported in 1997 (1) CTC 628 has been reiterated as under:
28. Till the issue is considered in an appropriate case, we can
only reiterate what has been suggested in K.S. Vidyanadam
and others v. Vairavan, 1997 (1) CTC 628 (SC):
o Courts, while exercising discretion in suits for specific
performance, should bear in mind that when the parties
prescribe a time/period, for taking certain steps or for
completion of the transaction, that must have some
significance and therefore time/period prescribed cannot be
ignored.
o Courts will apply greater scrutiny and strictness when
considering whether the purchaser was `ready and willing' to
perform his part of the contract.
o Every suit for specific performance need not be decreed
merely because it is filed within the period of limitation by
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A.S(MD)No.02 of 2019
ignoring the time-limits stipulated in the agreement. Courts
will also `frown' upon suits which are not filed immediately
after the breach/refusal. The fact that limitation is three years
does not mean a purchaser can wait for 1 or 2 years to file a
suit and obtain specific performance. The three year period is
intended to assist purchasers in special cases, as for example,
where the major part of the consideration has been paid to the
vendor and possession has been delivered in part
performance, where equity shifts in favour of the purchaser.
13.But however, in the case in hand, time is not essence of contract.
Even by the act of the parties, it is seen that time is extended periodically
even though the parties mutually blame other for extension. Even
according to the respondent/plaintiff, if his vendor was not ready to
perform her part of contract, he gets his cause of action even from the
first expiry of three months as agreed in the sale agreement. The
periodical extension of time would not bar the plaintiff to file the suit for
specific performance within 3years time from the date of cause of action
which arises for the first time. Since cause of action has already been
arisen for the respondent/plaintiff on 17.12.2007 itself, the
respondent/plaintiff is expected to file the suit for specific performance
within three years i.e on or before 16.12.2010 irrespective of the fact that
the time was extended periodically from time to time. The
respondent/plaintiff had chosen to issue his first legal notice only on
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A.S(MD)No.02 of 2019
28.06.2012. In fact, at the time of issuing the first legal notice itself, his
period of limitation would get expired.
14.Even if the respondent/plaintiff has taken advantage of the fact that
the time is not essence of the contract and hence his limitation would
start from the date of last expiry of the extension and his suit is well
within the time, it has to be seen whether the respondent/plaintiff was
ready and willing to perform his part of contract.
15. The appellant has specifically stated that on 01.11.2007 itselfshehas
vacated all the shops in the premises and informed the plaintiff about her
readiness. However, the learned trial judge has reiterated Ex.B.2 the
contents of her letter dated 09.12.2007 written to the
respondent/plaintiff. In the said letter, she has stated that she wanted to
remind him of the expiry of the initial time of contract and requested the
respondent/ plaintiff to pay the balance sale consideration and get the
sale deed executed. The same was not denied by the appellant/defendant
also. The letter is available at Ex.B.2 and for which the
respondent/plaintiff has sent a reply dated 15.12.2007 and the said letter
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A.S(MD)No.02 of 2019
would show that he gets cause of action,she was even willing to reduce
the cost of demolishing from the sale consideration and hand over
possession once the sale is executed.
16. If really the plaintiff was willing to execute the contract, himself
being the Engineer and real estate business man, he could have
demolished the building with the consent of the defendant and take
possession without telling lame excuses. The delay in approaching the
court for legal remedy would only show the lack of willingness on the
part of the respondent/plaintiff and he wantonly delayed the execution.
The learned trial Judge has made an observation that the respondent/
plaintiff did not give any troubles to the defendant ingetting the sale
deed executed unless the respondent/plaintiff pays the balance sale
consideration, the appellant/defendant cannot be expected to execute the
sale deed. The trial Judge has omitted to appreciate the conduct of the
plaintiff that he did not come forward to pay the balance sale
consideration. Even while evaluating the equity, the learned trial Judge
did not appreciate the conduct of parties properly. The very intention of
the appellant/defendant to sell the suit property is to get a small house
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A.S(MD)No.02 of 2019
site for herself and to perform her daughter’s marriage. In view of six
years delay and thereafter pendency of the legal proceedings for several
years, such practical difficulties of the appellant could not be made out.
The respondent/plaintiff, being a person of technically sound in
buildings and real estate business, could have all the facilities within
himself to get the building demolished and started his construction. Even
he was very particular that the appellant/defendant alone should
demolish the building, he could have got done by way of taking legal
action within three years from the first cause of action arose in his
favour.
17.Even though the periodical extensions have been made by both the
parties, the appellant/defendant was helpless and she could have only
extended the time on a belief that at some point of time, the
respondent/plaintiff would pay the balance sale consideration and got the
delay over. It is understandable that the appellant being an old lady,
could not take the points of finding out some other way and she would
have acted to the terms of the respondent/plaintiff by believing him that
he would make the delay at any cost. But the conduct of the respondent/
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A.S(MD)No.02 of 2019
plaintiff would show that he would stretch the time by paying just Rs.
5,00,000/-(Rupees five lakhs only) as advance and allowing the value of
the property escalate. Though the respondent/plaintiff might be
financially sound to pay the balance sale consideration, later willingness
on the part of the respondent/plaintiff is patent from his conduct and that
was miserably failed to be noticed by the learned trial Judge. This is an
appropriate case where ends of justice would be met out if the learned
trial Judge had granted relief of refund of advance money instead of
decreeing the suit for specific performance since the respondent/plaintiff
did not prove satisfactorily that equity is in his favour. I feel that the
appeal should be allowed and the judgment and decree of the learned
trial Judge needs some modification to the extent of granting alternative
relief of advance amount. Thus point Nos. 1 and 2 are answered.
18.In the result, this appeal is allowed and the judgment and decree of
the learned Additional District cum Fast Track Court, Kumbakonam. in
O.S.No. 24 of 2012 dated 19.07.2018 is modified to the effect that the
suit is decreed in respect of the alternate relief of the advance amount of
Rs.5,00,000/- (Rupees five lakhs only) along with interest at the rate of
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A.S(MD)No.02 of 2019
9% per annum from the date of agreement till the presentation of the
plaint and from the date of decree till the date of realization interest at
the rate of 6% per annum. No costs. Consequently, connected
miscellaneous petition is closed.
30.03.2022
Index : Yes/No
Internet : Yes/No
CM
To
1.The Additional District cum Fast Track Court, Kumbakonam.
2.The Section Office,VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S(MD)No.02 of 2019
R.N.MANJULA, J.
CM
A.S(MD).No.02 of 2019
and C.M.P(MD)No.148 of 2019
30.03.2022
https://www.mhc.tn.gov.in/judis
