Madras High Court
L.Saravanan vs P.Mariappan on 21 April, 2023
S.A(MD).No.666 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.666 of 2020
and C.M.P(MD)No.7105 of 2020
L.Saravanan .... Appellant/Appellant/Plaintiff
Vs.
1.P.Mariappan
2.Kaliammal
3.P.Kalyani ... Respondents 1 to 3/Respondents 1 to 3/
Defendants 1 to 3
Prayer : Second Appeal is filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 24.01.2020 passed in
A.S.No.136 of 2017 on the file of the Additional District and Sessions
Court, Tenkasi, confirming the judgment and decree dated 08.09.2017
passed in O.S.No.127 of 2013 on the file of the Additional Subordinate
Court, Tenkasi.
For Appellant : Mr.G.Thalaimutharasu
For Respondents : Mr.I.Robert
JUDGMENT
This Second Appeal has been filed challenging the concurrent
findings of the courts below. The plaintiff in the suit in O.S.No.127 of 2013
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S.A(MD).No.666 of 2020
on the file of the Additional Subordinate Court, Tenkasi, is the appellant
herein. The respondents are the defendants in the suit. In the forthcoming
paragraphs, the parties are described as per their litigative status in the suit.
2. The suit was filed for specific performance of an agreement of sale
dated 09.01.2011 (Ex.A.1) entered into between the appellant and the first
respondent/first defendant. On the date of agreement of sale, the appellant/
plaintiff had paid a part sale consideration of Rs.5 lakhs and thereafter, on
08.02.2011, the plaintiff had paid an additional advance amount of Rs.1
lakh by way of cheque. The total sale consideration payable by the
appellant/plaintiff under Ex.A.1 is Rs.9.5 lakhs out of which the
appellant/plaintiff had paid an advance amount of Rs.6 lakhs leaving the
balance of Rs.3.5 lakhs. According to the appellant/plaintiff, the first
respondent/first defendant did not come forward to execute the sale deed in
his favour and only under those circumstances, he was constrained to file a
suit for specific performance to enforce the agreement of sale (Ex.A.1).
3. However, as seen from the written statement filed by the
respondents/defendants, the appellant/plaintiff was not ready and willing to
pay the balance sale consideration as per the terms and conditions of the
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S.A(MD).No.666 of 2020
agreement of sale (Ex.A.1) and therefore, he is not entitled for the relief of
specific performance.
4. Before the trial court, the plaintiff filed 9 documents which were
marked as Ex.A.1 to Ex.A.9. One witness was examined namely, the
plaintiff himself as P.W.1. On the side of the defendants, no documents
were filed, but one witness was examined namely the first defendant as
D.W.1.
5. The trial court, namely, the Subordinate Court, Tenkasi by its
judgment and decree dated 08.09.2017 in O.S.No.127 of 2013 based on the
oral and documentary evidence available on record has come to the right
conclusion that the plaintiff is not entitled for relief of specific performance
as he was not always ready and willing to perform his part of the contract
(Ex.A.1) by paying the balance sale consideration within a period of 6
months from the date of the agreement i.e from 09.01.2011.
6. The reasons given for rejecting the relief of specific performance in
favour of the plaintiff by the trial court are as follows:
a) Even though the agreement of sale (Ex.A.1) was entered into on
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S.A(MD).No.666 of 2020
09.01.2011, the plaintiff has lodged a complaint to Shenkottai Police
only on 07.10.2012 (Ex.A.2) for alleged breach of contract committed
by the first defendant in not executing the sale deed as per Ex.A.1 in
favour of the plaintiff.
b)Even the legal notice was issued by the plaintiff through his lawyer
only on 31.12.2012, i.e after more than 1 year 10 months from the
date of the agreement of sale (Ex.A.1).
c)The agreement of sale stipulates that the sale will have to be
completed within a period of 6 months and therefore, the plaintiff was
not ready and willing to complete the sale by paying the balance sale
consideration within a period of 6 months.
By giving aforementioned reasons, the trial court rejected the relief of
specific performance sought for by the plaintiff. But however, directed the
first defendant to refund the advance amount of Rs.6 lakhs together with
interest at 6% per annum from the date of the agreement of sale till deposit.
7. The defendants have also not filed any appeal as against the
granting of alternate relief of refund of advance amount together with
interest in favour of the plaintiff by the trial court. Therefore, the said
finding has now become final.
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S.A(MD).No.666 of 2020
8. Only as against the refusal of grant of specific performance in
respect of the agreement of sale (Ex.A.1) the plaintiff had filed a first appeal
before the Additional District and Sessions Court, Tenkasi, in A.S.No.136
of 2017. The lower Appellate Court has also rightly confirmed the findings
of the trial court by dismissing the appeal by its judgment and decree dated
24.01.2020 in A.S.No.136 of 2017.
9. Prior to the amendment of the Specific Relief Act, the relief of
specific performance is an equitable relief. The plaintiff should always be
ready and willing to perform his part of the contract in order to get the relief
of specific performance. Admittedly, as seen from the evidence available on
record and has rightly held by the courts below, the plaintiff has not
completed the sale within a period of six months from the date of the
agreement of sale (Ex.A.1). The documentary evidence produced by the
plaintiff before the trial court which have been marked as Ex.A.1 to Ex.A.9
also reveal that the plaintiff has not approached the first defendant within a
period of 6 months as stipulated under the agreement of sale (Ex.A.1) for
completion of the sale to get the sale deed executed in his name by paying
the balance sale consideration of Rs.3.5 lakhs. Only on 07.10.2012, i.e after
a period of 1 year and 10 months, approximately the plaintiff has lodged a
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S.A(MD).No.666 of 2020
complaint with the police for the alleged breach of contract committed by
the first defendant. As rightly held by the courts below, the plaintiff was not
always ready and willing to complete the sale as per the agreement of sale
dated 09.01.2011 (Ex.A.1). Only based on the oral and documentary
evidence available on record, the courts below have granted the alternate
relief of refund of advance together with interest at 6% per annum in favour
of the plaintiff and has refused to grant the relief of specific performance. In
fact, the plaintiff had also sought for alternative relief in the suit.
10. For the foregoing reasons, there is no substantial questions of law
involved in this Second appeal as the issues raised by the plaintiff in the
Second Appeal are all factual issues and further the issues have already
been considered by the courts below rightly. There is no merit in the Second
Appeal. Accordingly, this Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed. However, the
plaintiff is entitled to execute the decree of the trial court with regard to the
refund of advance amount together with interest payable to him as per the
said decree.
21.04.2023
Index : Yes/No
Internet: Yes/No
CM
https://www.mhc.tn.gov.in/judis
S.A(MD).No.666 of 2020
To,
1.The Additional District and Sessions Court, Tenkasi,
2. The Additional Subordinate Court, Tenkasi.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD).No.666 of 2020
ABDUL QUDDHOSE, J.
CM
S.A.(MD)No.666 of 2020
and C.M.P(MD)No.7105 of 2020
21.04.2023
https://www.mhc.tn.gov.in/judis
