Madras High Court
J.Chandrasekar vs N.Gandhimathi on 11 October, 2022
A.S.No.337 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.10.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MRS.JUSTICE N.MALA
A.S.No.337 of 2013
and M.P.No.1 of 2013
J.Chandrasekar ...Plaintiff/
Appellant
-Vs-
1.N.Gandhimathi
2.N.Gowtham ...Defendants/
Respondents
Prayer:- Appeal Suit filed under Order XLI Rule 1 r/w Section 96 C.P.C.,
against the judgment and decree dated 30.11.2012 made in O.S.No.474 of 2011
on the file of the First Additional District Judge, Coimbatore.
For Appellant : Mr.D.Krishna Pradeep
For Respondents : No appearance
JUDGMENT
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[Judgment of the Court was made by S.S.SUNDAR, J.,]
The plaintiff in the suit in O.S.No.474 of 2011 on the file of the First
Additional District Judge, Coimbatore is the appellant in the above appeal.
2. The plaintiff filed the suit in O.S.No.474 of 2011 for specific
performance of an Agreement of Sale Deed dated 18.08.2006 and to deliver
possession of the property to the plaintiff and for other consequential reliefs.
3. It is the case of the plaintiff that he entered into an Agreement of
Sale with the husband of 1st respondent on 18.08.2006. It is contended by the
appellant that the husband of 1st respondent agreed to sell the suit property
namely an extent of 2 acres out of a larger extent of 4.64 acres in S.No.250 in
Thudialur Village, Coimbatore Taluk. The Sale Agreement dated 18.08.2006
marked as Ex.A1 in the suit reveals that the appellant entered into an Agreement
of Sale in respect of the suit property for a total sale consideration of
Rs.30,00,000/- . It is seen that the plaintiff has paid a sum of Rs.5,00,000/- as
advance on the date of the agreement and agreed to pay the balance of sale
consideration namely Rs.25,00,000/- within a period of six months from the date
of the agreement. The agreement also contain the following clause which read as
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follows:
“nkw;go 6 khj';fs; fhyf; bfLtpw;Fs; 1
,yf;fkpl;lth; mtUila brytpy; icp tPjk; fpuak;
bra;J bfhs;sj; jtwpdhy;. mjdhy; ,d;W 2
,yf;fkpl;ltUf;Fr; brYj;jpa[s;s Kd;gzj; bjhifia
,He;J tplntz;oaJ/ mj;Jld; ,e;jf; fpua xg;ge;jKk;
uj;jhfp tpLk;/”
4. Though the plaintiff agreed to pay the balance of sale consideration
amount of Rs.25,00,000/- within a period of six months from the date of the
agreement, it is admitted that the plaintiff did not pay the balance of sale
consideration within the stipulated time as agreed under Ex.A1. However, the
plaintiff pleaded that several payments were made to the husband of 1st
respondent on various dates. The endorsements which are marked as Exs.A2 to
Ex.A5 indicate that the following amounts were paid by the plaintiff to the
husband of 1st respondent and the husband of 1st respondent had agreed to extend
the time whenever he received the payments except the last payment.
Date Payment Time extended upto Ex.Nos.
---------- Rs.3.0 lakhs 30.09.2007 Ex.A2
22.12.2007 Rs.2.0 lakhs 28.12.2008 Ex.A3
22.05.2007 Rs.2.0 lakhs 31.08.2009 Ex.A4
18.04.2009 Rs.5.0 lakhs ----------- Ex.A5
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5. From the various endorsements, it is to be noted that the husband of
the 1st respondent signed below the endorsements which were marked as Exs.A2,
A3, A4 and A5. The agreement under Ex.A1 contains two other endorsements
which are not signed. However, it is seen that those endorsements were also
relied upon before the Trial Court even in the absence of signature of the
husband of the 1st respondent.
6. Based on the endorsements made by the husband of 1st respondent
accepting further amounts from the plaintiff, it is contended by the plaintiff in the
plaint that the parties never intended time as the essence of the contract as the
husband of 1st respondent himself extended the time on various occasions and
finally extended the time up to 31.08.2009. However, it is admitted that the time
was not extended beyond 31.08.2009. It is also contended by the plaintiff that he
was always ready and willing to perform his part of contract and further stated in
the plaint that the plaintiff demanded the husband of 1st respondent on several
occasions to perform his part of contract to execute the Sale Deed in his favour.
It is stated in the plaint that the husband of 1st respondent did not come forward
to execute the Sale Deed on account of delay by the survey officials to demarcate
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the land. It is admitted by the plaintiff that the husband of 1st respondent died on
25.04.2010. Thereafter, the plaintiff sent a telegram on 12.04.2011 to the
defendants asking them to perform their part of contract. Thereafter, a legal
notice was issued to the defendants on 21.05.2011 calling up on the
defendants/respondents to execute the Sale Deed in favour of the
plaintiff/appellant. The defendants sent a reply to the legal notice issued by the
plaintiff denying the agreement as one intended to be a sale transaction.
Thereafter, the plaintiff filed the present suit on 13.07.2011.
7. The suit was contested by the defendants on many grounds. It is
contended by the defendants that husband of 1st respondent had no intention to
sell the suit property to anyone and further stated that the husband of 1st
respondent had borrowed a sum of Rs.4,00,000/- from the plaintiff. The
defendants also denied the various payments that are alleged to have been paid
by the plaintiff as indicated in the endorsements made in the suit agreement under
Exs.A2 to Ex.A5.
8. The respondents also specifically denied the readiness and
willingness of the appellant without prejudice to their contention that the question
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of readiness does not arise in the light of denial of execution of the agreement
with an intention to sell. The Trial Court after framing necessary issues found
that the Sale Agreement under Ex.A1 is proved and it is a genuine sale
transaction by which the husband of 1st respondent agreed to sell the suit property
for a total sale consideration of Rs.30,00,000/-. Having found that the agreement
is true and that the amounts as per the endorsements were paid by the appellant
to the husband of 1st respondent, the Trial Court considered the question of
readiness and willingness. Having regard to the conduct of the appellant, that he
did not pay the balance before the extended time, i.e.31.08.2009, the Trial Court
found that the appellant has failed to prove his readiness and willingness to pay
the balance sale consideration before the death of the husband of 1st respondent
which was on 25.04.2010. The appellant filed the suit only on 13.07.2011, nearly
22 months after the expiry of time extended as per endorsement under Ex.A4.
Taking note of the fact that the appellant did not pay the balance amount as
stipulated in the Agreement of Sale even after several extensions of time, the
Trial Court relying upon the judgment of the Hon'ble Supreme Court in the case
of Saradamani Kandasamy Vs. Rajalakshmi reported in (2011) 6 CTC 460
held that the appellant is not entitled to the equitable relief of specific
performance as he has not established his readiness and willingness and that the
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unexplained delay is fatal to seek specific performance. Having regard to the
admitted facts and the conduct of the appellant, the Trial Court granted the
alternative relief by directing the respondents to refund the advance amount of
Rs.17,00,000/- with interest at the rate of 9 % per annum. Aggrieved by the
judgment and decree of the Trial Court the above appeal is preferred by the
plaintiff.
9. The learned counsel appearing for the appellant during the course of
argument submitted that time is not an essence of the Agreement of Sale Deed
dated 18.08.2006 as the husband of 1st respondent extended time periodically
upon receipt of further amount as per the endorsements found under Exs.A2 –
A5. He further submitted that the appellant has filed the suit within the period of
limitation and therefore, the Trial Court is not right in dismissing the suit for
specific performance merely because the suit was filed long after the final
extension of time. The learned counsel further pointed out that the Trial Court
having found that the Agreement of Sale dated 18.08.2006 is genuine and the
husband of 1st respondent received various payments as per endorsements
Exs.A2 to A5, ought to have granted a decree for specific performance. In the
light of specific findings rendered by the Trial Court, it is contended by the
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learned counsel that the approach of the Trial Court to deny specific performance
on the basis of judgment of the Hon'ble Supreme Court in the case of
Saradamani Kandappan Vs. S.Rajalakshmi and others reported in 2011 (4)
CTC 640 is not proper.
10. The learned counsel appearing for the appellants also submitted that
the appellant has produced the documents under Exs.A10, A11 and A20 to A22
before the Trial Court to show that the appellant had the financial capacity to
mobilize funds by sale of properties belonging to him. Pointing out that the
appellant has sent a telegram and legal notice promptly and thereafter filed the
suit immediately after the receipt of the reply notice, the counsel contended that
the findings of the Trial Court are unsustainable.
11. From the pleadings, findings of the Trial Court and the grounds
raised by the appellant the points that arise for consideration are as follows:-
(a) Whether the appellant has proved his readiness
and willingness to perform his part of contract in terms of
Agreement of Sale dated 18.08.2006?
(b) Whether the appellant is entitled to the equitable
relief of specific performance in the present case?
(c) Whether time is the essence of the agreement?
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12. From the pleadings, admitted facts and evidence, the Trial Court has
found that time is the essence of contract. Further it is also found that the plaintiff
is not ready and willing to perform his part of the contract as per the agreement
and that the plaintiff is not entitled to the equitable relief of specific performance.
It is true that the appellant has established the fact that the husband of 1 st
respondent entered into an Agreement of Sale under Ex.A1 to sell the suit
property for a total sale consideration of Rs.30,00,000/- and the appellant has
paid a sum of Rs.17,00,000/- out of the total sale consideration as per the
endorsements under Exs.A2 to A5. However, it is seen that as per the case of the
appellant relying upon the endorsements, the time was extended only up to
31.08.2009 as per Ex.A4 endorsement. Even while receiving the payment of
Rs.5,00,000/- under Ex.A5 on 18.04.2009 time was not extended further.
However, the appellant did not pay any money after 18.04.2009. In other words,
the appellant has miserably failed to prove his readiness and willingness by
making any further payment after 18.04.2009. As per Ex.A1 dated 18.08.2006,
only six months time was given for payment of balance. Though time was
extended up to 31.08.2009, the fact that there was no further extension even
while making further payment as per Ex.A5 indicates that time was made as an
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essence of the contract.
13. It is also admitted by the appellant that the telegram under Ex.A7
was issued to the respondents only on 12.04.2011. Though extension of time to
make payments was granted by the husband of 1st respondent till 31.08.2009, the
plaintiff did not come forward to make payment under the pretext that husband of
1st respondent did not arrange to demarcate the land which was agreed to be sold
under the Agreement of Sale in favour of the appellant under Ex.A1. This Court
is unable to believe that the husband of 1st respondent was unable to demarcate
the land with the assistance of the survey officials for more than three years.
From the facts admitted and from the records it can be seen that the appellant has
not produced any document or evidence which is reliable and independent to
show that he approached the husband of 1st respondent any time before his death
to demarcate the land. Therefore, taking advantage of the various extensions
given by the husband of 1st respondent, the appellant wanted to delay
performance to the maximum extent possible to the detriment of the respondents.
It appears that the appellant did not have sufficient money to keep his promise as
per Ex.A1.
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14. Though it is contended by the appellant's counsel that Exs.A10 and
A11 would show the financial capacity of the appellant, the Trial Court
considered the documents and found that the appellant did not have the funds at
the relevant point of time to perform his part of the contract in terms of the
Agreement of Sale under Ex.A1. However, the appellant has produced before the
Trial Court a few documents of Title Deeds showing that he had the capacity to
make payment. It is to be noted that appellant has not produced further record to
show that he made any attempt to sell those properties to mobilize funds so as to
perform his part of contract as agreed under Ex.A1. In the absence of any
evidences, the Trial Court is right in holding that the appellant has not proved his
readiness and willingness. This Court and the Hon'ble Supreme Court has made a
clear distinction between readiness and willingness. In this case, though the
appellant has paid various amounts which were accepted by the husband of 1st
respondent, there is no indication that the husband of 1st respondent extended
time beyond 31.08.2009. Therefore by the conduct of the husband of 1st
respondent it was made explicit to the appellant that time for performance is
made as essence of contract by not extending time beyond 31.08.2009. In the
said circumstances, this Court is of the view that the appellant has miserably
failed to prove his readiness and willingness in terms of Section 16 (c) of the
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Specific Relief Act, 1963 which is prerequisite for grant of relief of specific
performance. In the factual context, it is useful to refer to the judgment of the
Hon'ble Supreme Court in the case of I.S.Sikandar (D) by L.Rs. Vs.
K.Subramani and Ors. reported in (2013) 15 SCC 27 wherein it is held as
follows:
Even if we assume that the Agreement of Sale dated
25.12.1983 is subsisting, we have to answer point No. 2 in favour
of Defendant No. 5 for the following reasons:
It would be very much relevant for us to extract
Clause 6 of the Agreement of Sale which reads thus:
The time fixed for execution and completion of
the sale transaction is five months from the date of the
agreement of sale. The first parties have agreed to get
the necessary permission for registration from the
competent authorities such as the Urban Land Ceiling
authorities and Income Tax Authority within the said
period of five months at the cost and expenses of the
Second Party. The Second Party has agreed to pay the
necessary layout and conversion charges of the suit
property to the concerned authorities. The first party
have further agreed with the second party that if in case
the necessary permission from the aforesaid authorities
is delayed and as a consequence thereof the payment of
layout charges is delayed, the time for due performance
of the agreement shall stand extended for a further
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period of 2 months from the date of grant of such
permission.
This position of law is well settled by this Court in the
Constitution Bench judgment in Smt. Chand Rani (dead) by
L.Rs. v. Smt. Kamal Rani (dead) by L.Rs.
MANU/SC/0285/1993 : (1993) 1 SCC 519; wherein this
Court has held that it is well settled principle of law, that in a
case of sale of immovable property, time is not the essence of
the contract. However, If the parties agreed to a specified
time in the agreement to perform their part of the contract,
then time is the essence of the contract and parties shall
adhere to the same.
To emphasize the fact that time is the essence of the
contract before the High Court, the counsel for the 5 th
Defendant has placed reliance upon the judgment of this
Court in Chand Rani's case (supra), the relevant portions of
which are extracted below:
19. It is a well-accepted principle that in the case
of sale of immovable property, time is never regarded as
the essence of the contract. In fact, there is a
presumption against time being the essence of the
contract. This principle is not in any way different from
that obtainable in England. Under the law of equity
which governs the rights of the parties in the case of
specific performance of contract to sell real estate, law
looks not at the letter but at the substance of the
agreement. It has to be ascertained whether under the
terms of the contract the parties named a specific time
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within which completion was to take place, really and in
substance it was intended that it should be completed
within a reasonable time. An intention to make time the
essence of the contract must be expressed in unequivocal
language.
20. ...Section 55 of the Contract Act which deals
with the consequences of failure to perform an executory
contract at or before the stipulated time provides by the
first paragraph:
When a party to a contract promises to do
a certain thing at or before a specified time, or
certain things at or before specified times, and
fails to do any such thing at or before the
specified time, the contract, or so much of it as
has not been performed, becomes voidable at the
option of the promisee if the intention of the
parties was that time should be of the essence of
the contract.
It is not merely because of specification of time at
or before which the thing to be done under the contract
is promised to be done and default in compliance
therewith, that the other party may avoid the contract.
Such an option arises only if it is intended by the parties
that time is of the essence of the contract. Intention to
make time of the essence, if expressed in writing, must
be in language which is unmistakable: it may also be
inferred from the nature of the property agreed to be
sold, conduct of the parties and the surrounding
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circumstances at or before the contract. Specific
performance of a contract will ordinarily be granted,
notwithstanding default in carrying out the contract
within the specified period, if having regard to the
express stipulations of the parties, nature of the
property and the surrounding circumstances, it is not
inequitable to grant the relief. If the contract relates to
sale of immovable property, it would normally be
presumed that time was not of the essence of the
contract. Mere incorporation in the written agreement
of a clause imposing penalty in case of default does not
by itself evidence an intention to make time of the
essence. In Jamshed Khodaram Irani v. Burjorji
Dhunjibhai the Judicial Committee of the Privy Council
observed that the principle underlying Section 55 of the
Contract Act did not differ from those which obtained
under the law of England as regards contracts for sale
of land.
22. In Hind Construction Contractors case
quoting Halsbury's Laws of England, this Court
observed at pages 1154-55 as under: (SCC pp. 76- 77,
paras 7 & 8)
In the latest 4 th edn. of Halsbury's Laws of
England in regard to building and engineering contracts
the statement of law is to be found in Vol. 4, para 1179,
which runs thus:
1179. Where time is of the essence of the
contract. -- The expression time is of the essence
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means that a breach of the condition as to the
time for performance will entitle the innocent
party to consider the breach as a repudiation of
the contract. Exceptionally, the completion of the
work by a specified date may be a condition
precedent to the contractor's right to claim
payment. The parties may expressly provide that
time is of the essence of the contract and where
there is power to determine the contract on a
failure to complete by the specified date, the
stipulation as to time will be fundamental. Other
provisions of the contract may, on the
construction of the contract, exclude an inference
that the completion of the works by a particular
date is fundamental; time is not of the essence
where a sum is payable for each week that the
work remains incomplete after the date fixed, nor
where the parties contemplate a postponement of
completion.
Where time has not been made of the
essence of the contract or, by reason of waiver,
the time fixed has ceased to be applicable, the
employer may by notice fix a reasonable time for
the completion of the work and dismiss the
contractor on a failure to complete by the date so
fixed.
It will be clear from the aforesaid statement of
law that even where the parties have expressly provided
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that time of the essence of the contract such a
stipulation will have to be read along with other
provisions of the contract and such other provisions
may, on construction of the contract, exclude the
inference that the completion of the work by a particular
date was intended to be fundamental; for instance, if the
contract were to include clauses providing for extension
of time in certain contingencies or for payment of fine or
penalty for every day or week the work undertaken
remains unfinished on the expiry of the time provided in
the contract such clauses would be construed as
rendering ineffective the express provision relating to
the time being of the essence of contract.
19. The legal principle laid down by this Court in the above
case squarely applies to the facts of this case for the following
reasons. In the instant case, undisputedly, the Plaintiff did not get
Agreement of Sale executed by paying the remaining consideration
amount to the Defendant Nos. 1-4 within the stipulated period of 7
months as agreed upon by him under Clause 6 of the agreement by
asking the Defendant Nos. 1-4 to get the necessary permission
from ULCA and Income Tax Department after paying the layout
charges to the concerned authorities for getting the sale deed
executed in his favour. The Plaintiff has not complied with the
condition within the original stipulated period of five months and
extended period of two months and even if the delay occurs in
getting permission from the authorities, that period was over by
July, 1984. It is an undisputed fact that the date of the institution of
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the original suit was nearly 11 months after expiry of the limitation
period stipulated in the agreement to get the sale deed executed in
favour of the Plaintiff.
20. Both the trial court as well as the appellate court have
not examined this important aspect of the case though the parties
have agreed to perform their part of contract within seven months
from the date of execution of the agreement as stipulated in Clause
6. We have considered this aspect of the case on the basis of the
period of 7 months stipulated in the Agreement of Sale and the
same is answered in favour of the Defendants.”
15. In the case of Saradamani Kandasamy Vs. Rajalakshmi reported
in (2011) 6 CTC 460 the Hon'ble Supreme Court has held follows:-
“27. A correct perspective relating to the question whether
time is not of the essence of the contract in contracts relating to
immovable property, is given by this Court in K.S. Vidyanadam and
Ors. v. Vairavan MANU/SC/0404/1997 : (1997) 3 SCC 1 (by Jeevan
Reddy J. who incidentally was a member of the Constitution Bench in
Chand Rani). This Court observed:
It has been consistently held by the courts in India,
following certain early English decisions, that in the case of
agreement of sale relating to immovable property, time is
not of the essence of the contract unless specifically provided
to that effect.
In the case of urban properties in India, it is well-
known that their prices have been going up sharply over the
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last few decades particularly after 1973. ....We cannot be
oblivious to the reality and the reality is constant and
continuous rise in the values of urban properties - fuelled by
large scale migration of people from rural areas to urban
centres and by inflation.
Indeed, we are inclined to think that the rigor of the
rule evolved by courts that time is not of the essence of the
contract in the case of immovable properties - evolved in
times when prices and values were stable and inflation was
unknown - requires to be relaxed, if not modified,
particularly in the case of urban immovable properties. It is
high time, we do so.
(Emphasis supplied)
Therefore there is an urgent need to revisit the principle that
time is not of the essence in contracts relating to immovable
properties and also explain the current position of law with regard to
contracts relating to immovable property made after 1975, in view of
the changed circumstances arising from inflation and steep increase
in prices. We do not propose to undertake that exercise in this case,
nor referring the matter to larger bench as we have held on facts in
this case that time is the essence of the contract, even with reference
to the principles in Chand Rani and other cases. Be that as it may.
28. Till the issue is considered in an appropriate case, we can
only reiterate what has been suggested in K.S. Vidyanadam (supra):
(i) 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
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for completion of the transaction, that must have some
significance and therefore time/period prescribed cannot be
ignored.
(ii) Courts will apply greater scrutiny and strictness
when considering whether the purchaser was 'ready and
willing' to perform his part of the contract.
(iii) Every suit for specific performance need not be
decreed merely because it is filed within the period of
limitation by 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.”
16. The question of readiness and willingness in the present case also
has to be considered in the light of judgment of the Hon'ble Supreme Court in the
case of K.S.Vidyanathan & Others Vs. Vairavan reported in 1997 (1) CTC 628
(SC) wherein the Hon'ble Supreme Court in a similar case has held as follows:-
“11. Sri Sivasubramanium cited the decision of the Madras
High Court in Section V. Sankaraninga Nadar v. P.T.S. Ratnaswamy
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Nadar A.I.R. 1952 Mad. 389 holding that mere rise in prices is no
ground for denying the specific performance. With great respect, we
are unable to agree if the said decision is understood as saying that
the said factor is not at all to be taken into account while exercising
the discretion vested in the court by law. We cannot be oblivious to
the reality - and the reality is constant and continuous rise in the
values of urban properties - fuelled by larger-scale migration of
people from rural areas to urban centers and by inflation.
Take this very case. The plaintiff had agreed to pay the
balance consideration, purchase the stamp papers and ask for the
execution of sale deed and delivery of possession within six months.
He did nothing of the sort. The agreement expressly provides that if
the plaintiff fails in performing his part of the contract, the
defendants are entitled to forfeit the earnest money of Rs. 5,000/- and
that if the defendants fail to perform their part of the contract, they
are liable to pay double the said amount. Except paying the small
amount of Rs. 5,000/- [as against the total consideration of Rs.
60,000/-] the plaintiff did nothing until he issued the suit notice 2 1/2
years after the agreement. Indeed, we are inclined to think that the
rigor of the rule evolved by courts that time is not of the essence of
the contract in the case of immovable properties - evolved in times
when prices and values were stable and inflation was unknown -
requires to be relaxed, if not modified, particularly in the case of
urban immovable properties. It is high time, we do so.
Learned Counsel for the plaintiff says that when the parties
entered into the contract, they knew that prices are rising; hence, he
says, rise in prices cannot be a ground for denying specific
performance. May be, the parties knew of the said circumstance but
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they have also specified six months as the period within which the
transaction should be completed. The said time-limit may no amount
to making time the essence of the contract but it must yet have some
meaning. Not for nothing could such time-limit would have been
prescribed. Can it be stated as a rule of law or rule of prudence that
where time is not made the essence of the contract, all stipulations of
time provided in the contract have no significance or meaning or that
they are as good as nonexistent? All this only means that while
exercising its discretion, the court should also bear in mind that
when the parties prescribes certain time-limits for taking steps by one
or the other party, it must have some significance and that the said
time-limits cannot be ignored altogether on the ground that time has
not been made the essence of the contract [relating to immovable
properties].
12. Sri Sivasubramanium relied upon the decision of this
Court in Satyanarayana v. Yellogi Rao MANU/SC/0310/1964 :
[1965]2SCR221 , wherein it has been held:
As Article 113 of the Limitation Act prescribes a
period of 3 years from the dated fixed thereunder for
specific performance of a contract, it follows that mere
delay without more extending up to the said period cannot
possibly be a reason for a court to exercise its discretion
against giving a relief of specific performance. Nor can the
scope of the discretion, after excluding the cases mentioned
in Section 22 of the Specific Relief Act, be confined to
waiver, abandonment or estoppel. If one of these three
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circumstances is established, no question of discretion
arises, for either there will be no subsisting right or there
will be a bar against the assertion. So, there must be some
discretionary field unoccupied by the three cases, otherwise
the substantive section becomes otiose. It is really difficult to
define that field. Diverse situation may arise which may
induce a court not to exercise the discretion in favour of the
plaintiff. It may better be left undefined except to state what
the section says, namely, discretion of the court is not
arbitrary,, but sound and reasonably guided by judicial
principles and capably of correction by a court of appeal.
[Emphasis supplied]
Subba Rao, J., speaking for the Bench, pointed out the
distinction between Indian Law and the English Law on the subject
and stated the conclusion in the following words: "While in England,
mere delay or laches may be a ground for refusing to give a relief of
specific performance, in India mere delay without such conduct on
the part of the plaintiff as would cause prejudice to the defendant
does not empower a court to refuse such a relief.... It is not possible
or desirable to lay down the circumstances under which a court can
exercise its discretion against the plaintiff. But they must be such that
the representation by or the conduct or neglect of the plaintiff is
directly responsible in inducing the defendants to change his position
to his prejudice or such as to bring about a situation when it would
be inequitable to give him such a relief."
13. In the case before us, it is not mere delay. It is a case of
total inaction on the part of the plaintiff for 2 112 years in clear
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violation of the term of agreement which required him to pay the
balance, purchase the stamp papers and then ask for execution of
sale deed within six months. Further, the delay is coupled with
substantial rise in prices - according to the defendants, three times -
between the date of agreement and the date of suit notice. The delay
has brought about a situation where it would be inequitable to give
the relief of specific performance to the plaintiff.”
17. After entering into an Agreement of Sale on 18.08.2006 to pay the
balance of Rs.25 lakhs within six months (before 17.02.2007) the defendants
sought for extension which was given to him on three occasions up to
31.08.2009. Even after getting nearly 2 ½ years further time, the appellant did
not pay the balance amount of Rs.13,00,000/- before filing suit on 13.07.2011.
The appellant has not even established his readiness till he filed the suit. Even
after the death of husband of 1st respondent he did not come forward to make
payment as per the terms. The suit property is an extent of 2 acres in a semi
urban area. Between 2006 and 2011, there was a steep increase in price
throughout the State. This Court can take judicial notice. The findings of the Trial
Court on all the issues are unassailable. The Trial Court having regard to
admitted facts and evidence refused to grant the equitable relief of specific
performance giving cogent reasons. However granted alternative relief as prayed
for.
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18. In the light of the facts admitted and considered by the Trial Court
and this Court we are unable to grant any relief to the appellant in the above
appeal.
19. In the result, this Court finds no merits and hence, this appeal is
dismissed with cost confirming the judgment and decree dated 30.11.2012 made
in O.S.No.474 of 2011 by the First Additional District Judge, Coimbatore.
Consequently, connected miscellaneous petition is closed.
[SSSRJ] [NMJ]
11.10.2022
cda
Index : Yes/No
Speaking/Non Speaking order
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S.S.SUNDAR, J.,
AND
N.MALA, J.,
cda
To
1.The First Additional District Judge, Coimbatore.
2.The Section Officer, VR Records,
High Court, Chennai.
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