Madras High Court
Hamarunnisa vs M.K.Vijayalakshmi on 13 October, 2022
A.S(MD)No.132 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.10.2022
CORAM :
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH
A.S(MD)No.132 of 2012
and
M.P(MD)No.1 of 2012
Hamarunnisa ... Appellant / Plaintiff
-Vs-
M.K.Vijayalakshmi .. Respondent / Defendant
PRAYER: Appeal is filed under Section 96 of the Civil Procedure Code,
against the judgement and decree dated 29.02.2012 made in O.S.No.188
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A.S(MD)No.132 of 2012
of 2008, on the file of the learned Additional District and Sessions
Judge(Fast Track Court No.2), Tiruchirappalli.
For Appellant : Ms.J.Maria Roseline
For Respondent : Mr.N.Subramani
JUDGMENT
J.NISHA BANU,J.
and
N.ANAND VENKATESH, J.
The plaintiff in the suit has filed this appeal against the
Judgment and Decree of the learned Additional District and Sessions
Judge (FTC No.2), Thiruchirappali made in O.S.No.188 of 2008, dated
29.02.2012, dismissing the suit filed seeking for the relief of specific
performance or for granting the alternative relief of refund of the
advance amount.
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A.S(MD)No.132 of 2012
2. The case of the plaintiff is that she entered into an
agreement of sale with the defendant on 11.04.2008 whereby the
defendant agreed to sell the suit property for a total sale consideration of
Rs.36,20,000/-. The further case of the plaintiff is that an initial advance
of Rs.10,00,000/- was paid on the date of the agreement and
subsequently, a further sum of Rs.2,00,000/- was paid on 11.07.2008.
The balance sale consideration was agreed to be paid at the time of
execution of sale deed. The plaintiff took a stand that she was always
ready and willing to pay the balance sale consideration of Rs.24,20,000/-
and the defendant was evading the receipt of the same. Hence, the
plaintiff issued a telegraphic notice dated 13.10.2008 to the defendant,
calling upon the defendant to execute the sale deed in her favour. The
defendant sent a reply notice dated 25.10.2008, but however took a
stand that the plaintiff was not having the financial wherewithal to pay
the balance amount and this was also informed to the defendant and
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A.S(MD)No.132 of 2012
hence, the agreement itself stood cancelled orally. The defendant was
also taking steps to alienate the property to third parties. In view of the
same, the suit came to be filed seeking for the relief of specific
performance or for granting the alternative relief of refund of the
advance amount with interest.
3. The defendant filed a written statement and took a stand
that the sale agreement was entered into with the plaintiff and a sum of
Rs.12,00,000/- was also received by the defendant. The defendant also
informed the plaintiff that they are selling the property only to clear the
loan that was borrowed from Thiruchirappalli District Co-operative Bank
Ltd. The defendant also took a stand that time was the essence of the
contract and six months time was fixed in the agreement and the plaintiff
was not able to arrange for the payment of the balance sale consideration
within the time stipulated in the agreement. Ultimately, the plaintiff
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A.S(MD)No.132 of 2012
informed the defendant that she did not have sufficient funds to pay the
balance sale consideration and accordingly, the agreement was cancelled
orally. Accordingly, the defendant sought for the dismissal of the suit.
4. The Court below, on considering the pleadings, framed
the following issues:
“1/ jhth brhj;ij bghWj;J
11/04/2008k; njjpa fpiua xg;ge;jj;jpd;go
thjpf;F gpujpthjp vGjpf; bfhLf;f
nfhUk; Vw;wij Mw;Wif ghpfhuk;
thjpf;F fpilf;fj;jf;fjh>
2/thjpf;F gpujpthjpaplkpUe;J
bjhif U:/12.00.000/- fpilf;fj;jf;fjh>
3/,ju ghpfhuk; vd;d>””
5. This Court carefully considered the submissions made by
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A.S(MD)No.132 of 2012
Ms.J.Maria Roseline, learned counsel for the appellant and
Mr.N.Subramani, learned counsel for the respondent and also the oral
and documentary evidence available on record. This Court also carefully
went through the Judgment passed by the Court below.
6. The following points for consideration arises in this
Appeal Suit:
a) Whether time was the essence of the contract and the
plaintiff failed to show her readiness and willingness
within the time stipulated in the agreement ?
b) Whether the plaintiff was able to establish her
financial wherewithal to pay the balance sale
consideration of Rs.24,20,000/- to show her
readiness to perform her part of the contract ? and
c) Whether the Judgment and Decree passed by the
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A.S(MD)No.132 of 2012
Court below requires the interference of this Court ?
7. This Court carefully went through the sale agreement
dated 11.04.2008 marked as Ex.A1. It is clear from the agreement that
the total sale consideration was fixed at Rs.36,20,000/- and the plaintiff
had paid a sum of Rs.10,00,00/- as advance on the date of the agreement.
The agreement had fixed six months for the completion of the contract
and the plaintiff was expected to pay the balance sale consideration
within this time and the defendant was expected to execute the sale deed
in favour of the plaintiff.
8. The plaintiff paid a further advance amount of
Rs.2,00,000/- on 11.07.2008 and thereby, a total amount of Rs.
12,00,000/- was paid by the plaintiff to the defendant.
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A.S(MD)No.132 of 2012
9. The plaintiff was expected to pay the entire balance sale
consideration within a period of six months which was the time fixed
under the agreement and this amount should have been paid on before
10.10.2008.
10. The plaintiff issued a notice by means of a telegram on
14.10.2008, which was marked as Ex.A4 and she also issued paper
advertisement about the agreement which was marked as Ex.A5 and
Ex.A6.
11. The reply notice dated 25.10.2008 issued by the
defendant and which was marked as Ex.A8 made it very clear that the
plaintiff did not have sufficient money to pay the balance sale
consideration of Rs.24,20,000/- and hence, the defendant took a specific
stand that the plaintiff did not establish the readiness to pay the balance
sale consideration within the time stipulated in the agreement.
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A.S(MD)No.132 of 2012
12. The plaintiff, on receipt of this notice, proceeded to file
the suit seeking for the relief of specific performance. Since the
defendant had taken the very specific stand that the plaintiff did not have
the financial wherewithal to pay the balance sale consideration, the
plaintiff even at the time of filing the suit, should have shown her
readiness by depositing the amount before the Court or should have
established the availability of sufficient funds atleast in the course of
evidence. The plaintiff was not able to establish the same, except taking a
stand that she is ready and willing to perform her part of the contract.
This burden on the plaintiff further enhanced after the defendant took a
stand at paragraph No.6 of the written statement that the plaintiff did not
have sufficient funds to pay the balance sale consideration and it was
informed to the defendant pursuant to which, the agreement was
cancelled. This stand taken by the defendant in the written statement was
not rebutted by the plaintiff even in the course of evidence. The plaintiff,
who approaches the Court seeking for the relief of specific performance
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A.S(MD)No.132 of 2012
is mandated under Section 16(c) of the Specific Relief Act to establish
readiness and willingness to perform her part of the contract. The
readiness pertains to the financial wherewithal of the plaintiff and the
willingness denotes the mental state to perform her part of the contract.
The relief of specific performance being a discretionary relief, cannot be
granted if the plaintiff fails to establish readiness and willingness.
13. In the instant case, except for the ipsi dixit of the
plaintiff, there is absolutely no evidence to show that the plaintiff had the
financial wherewithal to pay the balance sale consideration of Rs.
24,20,000/-. The defendant was in need of the amount, since the property
was mortgaged with a co-operative bank and she wanted to settle the
loan and redeem the property. Hence, if the plaintiff was really serious
about performing her part of the contract, she should have atleast
deposited the balance sale consideration at the time of filing the suit.
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A.S(MD)No.132 of 2012
This was not done by the plaintiff and the Court below had taken into
consideration this important factor and rightly rejected the claim made by
the plaintiff and granted the alternative relief of refund of advance
amount with interest.
14. In view of the above, this Court holds that the
plaintiff/appellant was not ready and willing to perform her part of the
contract within the time stipulated in the agreement and even thereafter
and hence, is not entitled for the equitable relief of specific performance.
There is absolutely no ground to interfere with the Judgment and Decree
passed by the Court below dismissing the suit. All the points for
consideration formulated by this Court stands answered accordingly.
15. In the result, this appeal suit stands dismissed.
Considering the facts and circumstances of the case, there shall be no
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A.S(MD)No.132 of 2012
order as to costs. Consequently, connected miscellaneous petition is
closed.
[J.N.B, J.] & [N.A.V., J.]
13.10.2022
Index : Yes/No
Internet : Yes/No
PJL
To
The Additional District and Sessions Judge,
(Fast Track Court No.2),
Tiruchirappalli.
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A.S(MD)No.132 of 2012
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A.S(MD)No.132 of 2012
J.NISHA BANU, J
AND
N.ANAND VENKATESH, J
PJL
Judgment made in
A.S(MD)No.132 of 2012
13.10.2022
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