Madras High Court
U.Venkatesan vs Susila on 10 January, 2023
A.S.No.19 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
A.S.No.19 of 2014
and M.P.No.1of 2014
U.Venkatesan
...Plaintiff/Appellant
-Vs-
1.Susila
2.Selvakumar
3.Senthilkumar
4.Shanmugakumar
5.Gowsalya
6.Vijayalakshmi
7.Subasini
8.Megala
9.Satheeshkumar
10.Kambar ...Defendants/Respondents
Prayer:- Appeal Suit filed under Section 96 r/w Order 41 Rule 1 of C.P.C.,
against the judgment and decree dated 28.06.2013 made in O.S.No.18 of
2011 passed by the learned Principal District and Sessions Judge, Ariyalur.
1/52
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For Appellant : Ms.K.Abhirame
for Mr.V.Raghavachari
For R1 to R9 : Mr.R.Subramanian
For R10 : Mr.B.Ravi
JUDGMENT
[Judgment of the Court was made by S.S.SUNDAR, J.,]
(1)The plaintiff in the suit in O.S.No.18 of 2011 on the file of the learned
Principal District and Sessions Judge, Ariyalur is the appellant in the
above appeal.
(2)The appellant filed the suit in O.S.No.18 of 2011 for the specific
performance of an Agreement of Sale dated 04.06.2008 and for other
consequential reliefs.
(3)It is the specific case of the appellant that the suit property measuring an
extent of 1.21.5 hectares [3 acres] in S.No.180/3 at Telur Village in
Ariyalur Taluk is the absolute property of defendants, and they entered
into an Agreement of Sale dated 04.06.2008 for selling the suit property
at the rate of Rs.10,000/- per cent. It is stated that an advance of
Rs.2,00,000/- was paid as acknowledged under the Agreement of Sale
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and that the parties had agreed to perform the contract within four months
from the date of the Agreement of Sale. It is the case of the appellant that,
on enquiry, the appellant came to know that the Government is looking
for an extent of 100 acres for SIPCOT to establish an industrial center. It
is further stated that the officials of SIPCOT have also inspected the suit
property as well as other properties to ascertain whether they are more
suitable for their purpose. It is stated that on enquiry by plaintiff, he was
informed that they have inspected four places and that one of the places
would be acquired. It was therefore stated in the plaint that the 2 nd
defendant was requested to extend the time till such acquisition proposal
is finalized by a legal notice dated 30.09.2008. Stating that the
defendants after notice, started negotiating for the sale of the suit property
with third parties, it is contended that irrespective of finalisation of
proposed acquisition on behalf of SIPCOT, the plaintiff expressed his
willingness to complete the sale, but the defendants have failed to come
forward to execute the Sale Deed as agreed. It is also the case of the
plaintiff that time is not the essence of contract.
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(4)The following passage in the plaint is relevant, and it is extracted as
follows:
@Mdhy; mirah brhj;ijg; bghWj;J
xg;ge[ ;jj;jpd; fhyk; Kf;fpakhdjy;y vd;gJ
rl;lfUj;jhFk;/ nkw;go tptuk; bjhpe;Jk; rpWbjhHpy;
epWtd mYtyfk; rpWbjhHpy; ikaj;jpw;F ve;j
,lj;ij eph;zak; bra;jhYk; fpiuak; ngrpa jhth
brhj;jpid fpiuak; bra;J bfhLf;f miHj;J
mth;fs; kWj;J tUfpwhh;fs;/ thjp fpiua xg;ge;j
ehspypUe;J xg;ge[ ;jg;go ele;J bfhs;s tpUg;gk;
cs;stuhft[k;. jahuhft[k; ,Ue;J tUfpwhh;/ Mjdhy;
thjp ,e;j tHf;if ,e;j gpujpthjpfs; nghpy; @Vw;wij
Mw;[email protected] ghpfhuj;jpw;F jhf;fy; bra;a ntz;oa
mtrpak; Vw;gl;L thjp ,e;j tHf;if jhf;fy;
bra;Js;shh;/ thjp kPjpj; bjhifia nfhh;l;
blg;ghrpl;oy; brYj;j cWjp Twfpwhh;/”
(5)It is admitted by both parties that the suit Agreement was signed only by
defendants 1 to 5 and 7 to 10. The 6 th defendant though was shown as a
party, she did not sign. It is the case of plaintiff that other defendants
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promised to get the signature of 6th defendant.
(6)The suit was contested by all the defendants and the written statement
filed by the 4th defendant was adopted by all other defendants. The
defendants specifically denied the genuineness of the Sale Agreement. It
is their case that the 4th defendant borrowed a sum of Rs.1,00,000/- from
the plaintiff as a loan on 04.06.2008 agreeing to repay the same with
interest at 12% and the 4th defendant signed on blank stamp papers and
blank conquer sheets as security for the loan. It is the further case of the
defendants that by pressurising the 4th defendant, the plaintiff obtained
signatures from all other defendants on blank stamp papers and blank
conquer sheets and gave them to the plaintiff in connection with the loan
obtained by the 4th defendant from the plaintiff. Every allegation and
averment in the plaint was specifically denied. It is further stated that as
per the understanding, the 4th defendant was paying interest every month
and the plaintiff did not give a receipt or acknowledgement for the
payment of interest on the blank stamp papers or blank conquer sheets
signed by the defendants. It is also stated that the 6th defendant was not on
good terms with the 4th defendant and hence, she did not sign in the blank
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stamp papers and blank conquer sheets.
(7)In the written statement, the defendants also disputed the readiness and
willingness of the plaintiff to perform his part of the contract as promised
under the Sale Agreement. A specific stand was also taken that the case
of the plaintiff regarding the proposal for acquisition is false. Therefore,
it is seen from the written statement that the defendants while describing
the Suit Agreement itself as a product of fraud, forgery, and fabrication,
simultaneously questioned the readiness and willingness of the plaintiff
as well as the reason alleged by the plaintiff for non performance of his
part of the contract as specified in the Agreement. An additional written
statement was also filed, disclosing the fact that the suit property had
been sold in favour of the 10th defendant / husband of the 6th defendant. It
is stated that the suit was dismissed for default on 02.11.2009, and hence,
for pressing family necessities, the defendants have sold the suit property
on 05.11.2009 in favour of 10th defendant, who was later impleaded.
(8)The Trial Court after recording the pleadings, framed the following
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issues :
i. Is it true that defendants have executed a Sale Agreement in
favour of the plaintiff on 04.06.2008 agreeing to sell the suit
property to plaintiff ?
ii. Whether the defendants have agreed to sell the suit property
at the rate of Rs.10,000/- per cent and received Rs.2,00,000/-
as advance ?
iii. Is it true that the Suit Agreement is forged one ?
iv. Whether the plaintiff is entitled to get a decree for specific
performance of contract ?
v. To what relief ?
vi. Whether the 10th defendant is a bona fide purchaser for value
without notice ?
(9)Before the Trial Court, the plaintiff was examined as P.W.1 and marked
Exs.A1 to A16 and the scribe was examined as P.W.2. On the side of the
defendants 1 to 9, the 4th defendant was examined as D.W.1 and the 6th
defendant was examined as D.W.2. The 10th defendant who purchased the
suit property during the pendency of the suit was examined as D.W.3 and
Exs.B1 and B2 were marked.
(10)On the issues [1], [2] and [3] framed, the Trial Court held that
defendants 1 to 9 excluding 6th defendant executed the Sale Agreement in
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favour of the plaintiff on 04.06.2008, agreeing to sell the suit property to
the plaintiff at the rate of Rs.10,000/- per cent and received Rs.2,00,000/-
as advance. The Trial Court rejected the contention of the defendants that
the Suit Agreement under Ex.A1 is a fabricated one.
(11)On the 4th issue, whether the plaintiff is entitled to get a decree for
specific performance of contract, the findings of the Trial Court are as
follows:
a) The Agreement had been made with a person who is not a party to the
transaction.
b) The suit filed with a claim against a person, who is not a party to the
transaction is not maintainable.
c) The plaintiff is not entitled to claim the entire property in a suit for
specific performance when one of the co-sharers is conspicuously
absent in the suit transaction. Since the extent of the suit property
includes the share of the 6th defendant, the Agreement is defective
and without rectifying the defect, the suit cannot be sustained.
(12)However, the Trial Court found that the suit if at all can be maintained
only in respect of undivided 8/9th shares of defendants 1 to 5 and
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defendants 7 to 9. The Trial Court then held that granting decree in
respect of 8/9th shares would lead to a partition decree for the division of
8/9th shares of the decree holder and that would lead to multifariousness.
Though the Trial Court did not disclose what is multifariousness, it
observed that the Court cannot come to rescue of such parties who are
reckless in making the claims.
(13)Admittedly, the Trial Court has not framed any specific issue, whether
time was the essence of the Agreement or regarding the readiness and
willingness of the plaintiff. However, regarding readiness and
willingness, the Trial Court has found that the plaintiff had not produced
any document or evidence to prove that he had legitimate information to
believe that there was an acquisition proposal in respect of the suit
property. Therefore, the Trial Court also held that the plaintiff is not
ready and willing to perform his part of the contract. Since the plaintiff
entered into an Agreement to conclude the same within the time
stipulated, and then came forward with a new plea that the performance
should be postponed until he gets a clear picture as to whether there is
going to be an acquisition by the Government or not, the Trial Court held
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that the plaintiff is not entitled to the decree for specific performance.
(14)On the 6th issue, whether the 10th defendant is a bona fide purchaser, the
Trial Court found that the sale itself occurred during the pendency of the
suit for specific performance. Since the 10th defendant is none other than
the husband of the 6th defendant and the sale consideration specified in
the Sale Deed is only Rs.2,43,000/-, the Trial Court held that the 10 th
defendant is not a bona fide purchaser. The Trial Court also found that
the Sale Deed in favour of the 10th defendant is hit by Section 52 of the
Transfer of Property Act. Following the principle of law settled by the
Hon'ble Supreme Court the Trial Court observed that the lis is deemed to
be pending in view of the filing of subsequent applications for restoration
and the actual restoration of the suit. In other words, the Trial Court held
that the transfer though occurred when the suit was dismissed for default,
it is not a ground to save the transaction from the rigor of Section 52 of
the Transfer of Property Act. Though the suit for specific performance
was dismissed, the Trial Court granted a decree for the recovery of a sum
of Rs.1,00,000/- as admitted by the defendants in their written statement.
Aggrieved by the same, the plaintiff has preferred the above appeal.
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(15)The learned counsel appearing for the appellant elaborately made her
submissions, particularly stressing the following points:
(a) Time is not the essence of contract, particularly, when the contract is
in relation to sale of immovable properties as held in several
precedents. The notice issued by the plaintiff under Ex.A3 cannot be
used against the plaintiff particularly when the plaintiff's intention
was to ensure the vendor's title free from reasonable doubt.
(b) The learned counsel relied upon Section 17 of the Specific Relief Act
to buttress her argument that there is nothing illegal on the part of
plaintiff to postpone the sale in order to ensure that the suit property
is not likely to be acquired by M/s.SIPCOT.
(c) The Trial Court ignored Section 12 of Specific Relief Act which
specifically enable the plaintiff to seek specific performance in
respect of 8/9th share of defendants 1 to 5 and 7 to 9.
(d) The Trial Court has failed to frame an issue regarding readiness and
willingness of the plaintiff and therefore, the judgment of Trial Court
is vitiated.
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(e) When the Trial Court has found that the subsequent Sale Deed
executed by defendants 1 to 9 in favour of 10th defendant is hit by
Section 52 of the Transfer of Property Act and that the 1st defendant is
not the bona fide purchaser for value without notice of Sale
Agreement, the Trial Court ought to have decreed the suit for specific
performance.
(f) The plaintiff has specifically pleaded and proved his readiness and
willingness. The Trial Court having found that the Agreement is
proved and that a sum of Rs.2 lakhs was received as advance, has
refused to grant a decree for specific performance and granted
alternative relief for payment of a sum of Rs.1 lakh even after holding
that the defendants have received a sum of Rs.2 lakhs as advance
under the suit Agreement-Ex.A1 dated 04.06.2008.
(g) The Trial Court erred in holding that the suit Agreement – Ex.A1 is
not enforceable merely because one of the parties to the document has
not signed the Agreement and that the finding of Trial Court holding
that the suit Agreement [Ex.A1] is invalid and hence, cannot be
enforced, is contrary to law and several decided cases on this issue.
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(h) The Trial Court failed to appreciate the conduct of defendants in
setting up a false case describing the suit Agreement as a fraudulent
creation. Since it is settled that the conduct of defendants is also
relevant in a suit for specific performance, the Trial Court ought to
have exercised the discretion in favour of plaintiff/appellant.
(16) Per contra, Mr.R.Subramanian, learned counsel appearing for
respondents 1 to 9 submitted that the suit Agreement is not enforceable in
view of the fact that the 6th defendant who is a party to the transaction has
not signed the document and that the Sale Agreement [Ex.A1] as such, is
not complete and hence, cannot be enforced in a Court of law. Learned
counsel then submitted that the Trial Court though has not framed any
issue regarding readiness and willingness, has rendered a specific finding
that the plaintiff is not ready and willing to perform his part of the
contract. He pointed out that the stand taken by the plaintiff that time is
not the essence of the suit Agreement under Ex.A1 is contrary to the
specific terms by which it can be inferred that parties have specifically
understood that the time is the essence of contract by specifically
referring to the consequences in case of failure to adhere to the time
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schedule by plaintiff. Learned counsel appearing for respondents has
conceded to the finding of the Trial Court regarding the genuineness of
the Sale Agreement under Ex.A1 and the receipt of Rs.2 lakhs as advance
under Ex.A1. He submitted that the plaintiff who has failed to plead and
prove readiness and willingness in terms of the Agreement, is not entitled
to specific performance. Learned counsel has not made any submission
challenging the findings of the Trial Court that the 10th defendant is not a
bona fide purchaser for value without notice of the Suit Agreement and
that the Sale Deed executed in favour of the 1st defendant is hit by Section
52 of the Transfer of Property Act.
(17)Having regard to the submissions of the learned counsels appearing on
either side and the specific pleadings, evidence and issues framed by Trial
Court, this Court finds that the following points are to be determined in
this Appeal:-
A) Whether time is the essence of the Suit Agreement [Ex.A1]?
B) Whether the suit Agreement-Ex.A1 is vitiated merely because one
of the parties to the document, namely, the 6th defendant, did not
sign the suit Agreement?
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C) Whether the plaintiff has averred and proved readiness and
willingness in terms of Section 16[c] of the Specific Relief Act?
D) Whether the suit for specific performance can be enforced in
respect of 8/9th share of defendants 1 to 5 and 7 to 9 by virtue of
Section 12 of the Specific Relief Act?
E) Whether the plaintiff is entitled to the equitable relief of specific
performance?
POINT [A]-Whether time is the essence of contract?
(18)The learned counsel appearing for the appellant submitted that time is
not the essence of the Agreement. The Trial Court has specifically held
that the plaintiff has not proved his readiness and willingness as he failed
to perform his part of the contract within the time specified in the
Agreement. The Trial Court did not frame the issue whether time was the
essence of the Agreement. However, this issue was indirectly answered.
(19)Learned counsel for the appellant relied upon several precedents to
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buttress her argument that time is not the essence of contract, particularly,
when the contract in this case is in respect of sale of immovable property
and that Court cannot decide time as the essence merely because there is a
stipulation specifying time limit within which the contract should be
performed.
(20)The learned counsel appearing for the appellant relied upon a judgment
of the Hon'ble Supreme Court in the case of Chand Rani Vs. Kamal
Rani reported in 1993 [1] SCC 519. This Court has already considered
the said judgment in the case of G.Banumithra and Others Vs.
D.Santhakumar in AS.Nos.1101/2008 & 1067/2009 vide judgment
dated 22.12.200, wherein it has been held as follows:-
''15.This Court in several similar cases, by following
several judgments of the Hon'ble Supreme Court has held in
unequivocal terms that the stipulation with regard to time
cannot be ignored and that time can also be made as the
essence of the contract even by issuing a notice. It would be
more appropriate to refer to the judgment of the Constitution
Bench of Hon'ble Supreme Court where similar issue was
considered in Chand Rani [Smt] [Dead] by LRs Vs. Kamal
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Rani [Smt] [Dead] by LRs reported in 1993 [1] SCC 519 :
AIR 1993 SC 742. Though the Hon'ble Supreme Court
accepted the principle that in the case of sale of immovable
property, time is not regarded as the essence of the contract
and that, there is no presumption as to time being the essence
of the contract, has held as follows:-
25. From an analysis of the above case-law it is
clear that in the case of sale of immovable property
there is no presumption as to time being the essence of
the contract. Even if it is not of the essence of the
contract the Court may infer that it is to be performed
in a reasonable time if the conditions are:
1. From the express terms of the contract;
2. from the nature of the property; and
3. from the surrounding circumstances, for example:
the object of making the contract.''
16.The Constitution Bench of Hon'ble Supreme Court
considered the issue as to whether time is the essence of the
contract with reference to the following clause in the
Agreement which is extracted in paragraph 26 of the Judgment
of Hon'ble Supreme Court:-
''26. In the above legal background, we will now
look at the terms of the suit contract dated August 26,
1971. The agreement reads as under:
“Now, therefore this agreement to sell witnesseth and
the parties hereto have agreed as follows:
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1. That in pursuance of the said agreement, the 1st
party has received a sum of Rs 30,000 (rupees thirty
thousand only) from the second party as earnest money
the receipt whereof the 1st party hereby separately
acknowledges. Rs 98,000 (rupees ninety-eight thousand
only) will be paid by the second party to the 1st party
within a period of ten days only and the balance of Rs
50,000 (rupees fifty thousand only) at the time of
registration of the sale deed before the Sub-Registrar,
New Delhi.''
17.After extracting the above clause in the Agreement of Sale,
the Hon'ble Supreme Court has made the position in clear
terms by expressing its conclusion in paragraphs No.27 and 28
of the said judgment which read thus:-
''27. Then comes the question as to the payment
of Rs 98,000. The question is as to what is the meaning
of the words “within a period of 10 days only”? Does
it apply to the amount or the time-limit of 10 days from
August 26, 1971. The trial court was of the view that
the word “only” was meant to stress and qualify the
amount of Rs 98,000 and cannot be read to mean as if
payment within 10 days was the essence of the
contract. On this aspect, the appellate court takes the
contrary view and holds that the amount of Rs 98,000
ought to have been paid on or before September 6,
1971. Failure to do so would constitute a breach
committed by the defendant. We are of the considered
view that the Division Bench is right in its conclusion.
As rightly pointed out in the judgment under appeal,
the word “only” has been used twice over
(1) to qualify the amount of Rs 98,000 and
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(2) (2) to qualify the period of 10 days.
28. Therefore, having qualified the amount there was
no further need to qualify the same unless it be the
intention of the parties to make time as the essence of
the contract.''
18.Though several judgments have been cited, this Court is
unable to find any other judgment more appropriate than the
judgment of the Constitution Bench of Hon'ble Supreme Court
in Chand Rani's case [cited supra]. In the Agreement of Sale
under Ex.A1, parties never even agreed for extension of time
on any contingency and specified the time limit in unequivocal
terms without an option being given to the purchaser in case
he fails to pay the balance of sale consideration within the
period of two months from the date of Agreement.
(21)The above-mentioned judgment of this Court also applies to the present
case. The suit Agreement under Ex.A1 contains the following terms:-
@ek;kpy; 1 Kjy; 9 tiuapyhd egh;fSf;F
brhe;jkhdJk; nkw;goahh;fs; Mz;lDgtpj;J
tUfpwJk; 1 Kjy; 9 tiuapyhd egh;fspd; bgahpy;
Tl;Lgl;lh Vw;gl;L gl;lh vz;/241 Mf gjpthfpa[s;s
moapy; fz;l brhj;jpid kl;Lk; ek;kpy; 10tJ
egUf;F fpuak; bra;J bfhLg;gjhf fpuak; ngrp
brz;l; 1f;F U:gha; 10.000/- (U:gha; gj;jhapuk; kl;Lk;)
tPjk; epr;rapj;j fpua bjhifapy; ehsJ njjpapy;
10tJ egh; ek;kpy; 1 Kjy; 9 tiuapyhd egh;fsplk;
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moapy; fz;l rhl;rpfspd; ghh;itapy; Kd;bjhifahf
brYj;jpaJ U:gha;/2.00.001/- (U:gha; ,uz;L
,yl;rj;jpy; xU U:gha; kl;Lk;) ghf;fpa[s;s fpua
bjhifapid 10tJ egh; ehsJ njjp Kjy; tUfpw
ehd;F khj fhy bfLtpw;Fs; (3/10/2008). ek;kpy; 1
Kjy; 9 tiuapyhd egh;fsplk; brYj;jp 10tJ egh;
jd; brhe;j brytpy; gj;jpuk; th';fp jd; bgaUf;nfh
my;yJ 10tJ egh; tpUk;g[k; bgaUf;nfh gj;jpuk; gjpt[
bra;J bfhs;s ntz;oaJ/ mg;go bfL njjpf;Fs;
ek;kpy; 10tJ egh; gj;jpuk; gjpt[ bra;J bfhs;s Kd;
tUk; ek;kpy; 1 Kjy; 9 tiuapyhd egh;fs; gj;jpuk;
gjpt[ bra;J bfhLf;f jtwpdhnyh kWj;jhnyh
ghf;fpj; bjhifapid ePjpkd;wj;jpy; brYj;jp nfhl;lhh;
K:yk; brhj;jpid RthjPdk; bra;J bfhs;s
ntz;oaJ vd;Wk; mg;go bfL njjpf;Fs; 10tJ egh;
gj;jpuk; gjpt[ bra;J bfhs;s jtwpdhy; Kd;
bjhifapid ,He;J tpl ntz;oaJ vd;Wk;/@
(22)From the terms of the Agreement – Ex.A1, as extracted above, the
parties had mutually agreed that the contract should be performed within
four months from the date of Agreement. In case the purchaser/plaintiff
fails to perform his part of contract within the time specified, the plaintiff
has to forego what he has paid as advance. No other circumstance or
conduct of defendants in the present case is relied upon by the learned
counsel for the appellant to show that defendants have ever gave hope for
extending the time agreed under Ex.A1. Therefore, this Court has no
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hesitation to hold that time is the essence of the contract under Ex.A1.
Hence, point [A] is answered in affirmative and against the
submission of the learned counsel for the appellant that time is not
the essence of contract.
POINTS [B] & [D]:-
(23)The Trial Court has held that the contract is not specifically enforceable
as the 6th defendant who is also shown as a party to the Agreement, has
not signed the Agreement. Even though the 6th defendant was one of the
vendors shown in the Agreement and it appears that all the owners have
agreed to sell the property to the plaintiff, the 6th defendant has not signed
the Agreement. The case of plaintiff is that the 6th defendant was not in
station and therefore, the other parties to the Agreement, namely,
defendants 1 to 5 and 7 to 9 promised to get the signature of 6th
defendant later. The question whether such an Agreement is complete
and enforceable, has been considered by this Court earlier in the case of
Sethu Parvathy Ammal Vs. Bajji K.Srinivasan Chettiar and Others
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reported in AIR 1972 Mad 222. A learned Single Judge of this Court has
elaborately discussed the issue whether such a contract, in the absence of
one of the contracting parties can be enforced against the rest who are
parties to the document and held that the contract can be enforced against
the signatories to the Agreement if the intention of the parties can be
inferred that the signatories have agreed to execute the Sale Deed
irrespective of the person who has not signed joined execution or not.
(24)It is useful to refer to the following paragraphs from the said judgment:-
''.........Having made the above observations with
regard to the legal position, the Federal Court
proceeded to deal with the case before it, in the
following terms:
“Whether Gobardhandas thought rightly or
wrongly that he had authority to dispose of the
shares standing in the name of his brother as
well, is not material for our present purpose.
All that we can say is this that there is nothing
in this letter which would show that it was the
intention of the signatories that they would sell
their shares and interests to the plaintiffs if and
only if Badri Prasad sold his. Badri Prasad was
not in the picture at all and although
Gobardhandas apparently agreed to sell his
shares as well, there is no evidence of any
understanding, either express or implied, even
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amongst the defendants inter se that unless
Badri Prasad actually came and joined the
agreement, the contract would not be perfect or
complete. None of the defendants or even their
Solicitor was examined as a witness in this case
and no questions on this point were put to the
plaintiff's witnesses during their cross-
examination. The letter of 28th December, 1940
if it shows anything shows unmistakably that
the vendors were anxious to dispose of their
shares by any means possible and they did not
care whether the shares were purchased by
Khaitans or anybody else. The letter of both the
appellants written to Himatsingka on 5th
January, 1941, practically clinches the matter
and proves conclusively that the promise to sell
their shares and interests in the business was
not in any way dependent upon any body else's
joining with them in the transaction. Thus there
was no intention on the part of the defendants
that the contract would not be binding unless
Badri Prasad became a party to it and there
has been no suggestion made on behalf of the
appellants either here or in the courts below
that any injustice would be done to them if they
are compelled to perform the agreement which
they made.”
The principles deducible from the above decisions can
be now stated as follows:
1. When a document is proposed to be executed
by several parties and only some of them
execute and others do not, whether the
document is binding on those at least who have
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executed it depends upon the intention of the
parties; and
2.The intention that the document would
be incomplete and would not be enforceable
against the executing parties has to be
established by the executing parties by showing
that they would not have executed the
agreement if the other party had not joined in
the agreement or that they did not intend to be
bound by the agreement until and unless the
others who were proposed to be parties to the
agreement joined in the execution.
Now, the question for consideration is, what exactly
are the facts of the present case with reference to the
application of the above principles. Unfortunately the
learned District Judge had not borne in mind that the
case had to be decided with reference to the intention
of the parties. The learned District Judge has extracted
the two sentences italicised by me above in the
judgment of the Federal Court and he was of the view
that those two sentences concluded the matter against
the appellant in the present case. I am clearly of the
opinion that the learned District Judge has erred in
this behalf. It is not only these two sentences in the
judgment of the Federal Court which have to be looked
into for the purpose of finding out the law, but also the
other portions of the judgment which I have already
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extracted. If those portions are also looked into, it will
be clear that the Federal Court held in that case that
unless the defendants who executed the agreement
could show that there was no intention on their part to
be bound by that agreement without the others joining
the same, the agreement could be enforced as against
them.
.................
There is only one other matter to which I shall
draw attention. The mother of the first defendant is not
a party to the suit. Therefore the decree that is passed
in favour of the appellant will not affect any right
which the mother of the first defendant may have in the
suit property. As a matter of fact, Mr. N.C.
Raghavachari, learned counsel for the appellant,
having regard to the language of S. 15 of the Specific
Relief Act, 1877, corresponding to S. 12(3) the Specific
Relief Act, 1963, expressly stated that the appellant is
prepared to take the sale deed on paying full
consideration agreed upon under Ex. A.1, subject to
any rights which the first defendant's mother may have
over the suit property. .........''
(25)Learned counsel for the appellant relied upon a judgment of Hon'ble
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Supreme Court in the case of A.Abdul Rashid Khan [Dead] and Others
V. P.A.K.A.Shahul Hamid and Others reported in 2000 [10] SCC 636.
Before the Hon'ble Supreme Court, similar Agreement was executed in
respect of a property of several co-owners without the signatures of two
of the co-owners. Though the parties who have signed the Agreement
undertook to get the signatures of two other co-owners, they did not do
so. However, the Agreement holder filed a suit for specific performance
and also prayed for partition and separate possession of 5/6 th share in the
suit property. The parties who signed the Agreement denied any
assurance or promise to obtain the signatures of their sisters who are also
co-owners. A plea was also raised in the additional written statement by
the vendors that the sale could only be an indivisible sale in respect of
entire property and that the Agreement cannot enforced when the sisters
have not joined in the Agreement of sale.
(26)The Hon'ble Supreme Court in the above judgment has held as follows:-
''14. Thus we have no hesitation to hold, even
where any property is held jointly, and once any party
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to the contract has agreed to sell such joint property by
agreement, then, even if the other co-sharer has not
joined, at least to the extent of his share, he is bound to
execute the sale deed. However, in the absence of the
other co-sharer, there could not be any decree of any
specified part of the property to be partitioned and
possession given. The decree could only be to the
extent of transferring the share of the appellants in
such property to other such contracting party. In the
present case, it is not in dispute that the appellants
have 5/6th share in the property. So, the plaintiff's suit
for specific performance to the extent of this 5/6th
share was rightly decreed by the High Court which
requires no interference.''
(27)Learned counsel then relied upon a judgment of a learned Single Judge
of this Court in the case of Navaneethakrishnan and Others V.
S.A.Subramani Raja reported in 2011 [11] LW 414. The learned Single
Judge of this Court dealt with a case where the plaintiff entered into an
Agreement of Sale with defendants 1 to 3 therein who are the co-owners.
However, one of the defence raised was that the suit properties are not the
properties of defendants 1 to 3 alone as the properties are joint family
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properties to which defendants 4 to 9 are also entitled to a share by birth.
The learned Single Judge of this Court held that the Agreement is valid in
respect of 1/3rd share of defendants 1 to 3 and that the plaintiff is entitled
to obtain a decree for specific performance by paying the agreed price
reduced by consideration for the part which is left unperformed. Relying
upon Section 12[3] of the Specific Relief Act, it is observed that the
plaintiff therein is entitled to claim specific performance in respect of
1/3rd share in the suit property on payment of 1/3 rd of the sale
consideration.
(28)Learned counsel for the appellant also relied upon a judgment of Delhi
High Court in the case of Namrita Kalra V. Ram Swaroop and Others
reported in 2001 [58] DRJ 338. Referring to Section 12 of Specific
Relief Act and Section 44 of Transfer of Property Act, a learned Single
Judge of Delhi High Court, following the judgment of Hon'ble Supreme
Court in the case of Kartar Singh Vs. Harjinder Singh and Others
reported in AIR 1990 SC 854, has held as follows:-
''11. In support of the above contention, learned
counsel for the plaintiff has placed reliance upon AIR
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1990 SC 854, Kartar Singh v. Harjinder Singh and
others, wherein the respondent and his sister owned
some property and the respondent therein entered into
an agreement with the appellant for himself and for his
sister for sale of the property and undertook to get the
same registered. It was specifically mentioned in the
agreement that he had agreed to sell not only his entire
share in the property but also that of his sister, and
that he would be responsible for getting the sale deed
executed from his sister. However, subsequently the
sister refused to sell the property coming to her share.
In a suit for specific performance of agreement a
decree was granted in respect of half share of suit
property. The decree was set aside by the High Court
by taking into consideration the provisions of Sections
12 of the Transfer of Property Act, 1882 which reads
as under:—
“12. Condition making interest determinable
on insolvency or attempted alienation - Where
property is transferred subject to a condition or
limitation making any interest therein, reserved
or given to or for the benefit of any person, to
cease on his becoming insolvent or
endeavouring to transfer of dispose of the
same, such condition or limitation is void.
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12. The Supreme Court held that the case is not
covered under Section 12 of the Specific Relief Act as it
relates to the specific performance of a part of the
property. It was observed that a mere failure to
mention m the agreement that they had such share in
the property would not entitle one to come to the
conclusion that they did not have that share. When the
property is owned jointly, unless it is shown to the
contrary, it has to be held that each one of the joint
owners owns a moiety of the properly. Though in the
above referred case the respondents had contracted to
sell whole of the property through two contracts viz.
for the sale of his share and of his sister's share
although these were incorporated in one agreement
and these were separate severable from each other.
13. In the case in hand, the stand of the plaintiff is
on much stronger footing than the above case. The
contracting party had agreed to sell his share in the
property and. therefore, the properties agreed to be
sold were clearly distinguishable by the share the
plaintiff held to his credit.
14. Again on the question whether decree for
specific performance can be granted in an
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unpartitioned property and in respect of unspecified
share of the vendor, the Supreme Court observed: “The
law does not bring any such difficulty in decreeing the
suit for specific performance. Whenever a share in the
property is sold the vendee has a right to apply for the
partition of the property and get the share
demarcated”.
15. In view of the above position of law, the
maintainability of suit for specific performance in
respect of undivided or undemarcated property of the
person entered into an agreement to sell has no
element of doubt and is unquestionable.''
(29)Though a few other judgments were also relied upon by learned counsel
for the appellant, this Court is of the view that it is not necessary to quote
every other judgments when this Court has no quarrel with the
proposition for which those decisions are cited.
(30)Section 12 of the Specific Relief Act reads as follows:-
12. Specific performance of part of contract.—
(1) Except as otherwise hereinafter provided in
this section the court shall not direct the specific
performance of a part of a contract.
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(2) Where a party to a contract is unable to
perform the whole of his part of it, but the part which
must be left unperformed by only a small proportion to
the whole in value and admits of compensation in
money, the court may, at the suit of either party, direct
the specific performance of so much of the contract as
can be performed, and award compensation in money
for the deficiency.
(3) Where a party to a contract is unable to
perform the whole of his part of it, and the part which
must be left unperformed either—
(a) forms a considerable part of the whole,
though admitting of compensation in money; or
(b) does not admit of compensation in money, he
is not entitled to obtain a decree for specific
performance; but the court may, at the suit of other
party, direct the party in default to perform specifically
so much of his part of the contract as he can perform, if
the other party—
(i) in a case falling under clause (a), pays or has
paid the agreed consideration for the whole of the
contract reduced by the consideration for the part
which must be left unperformed and a case falling
under clause (b), 1[pays or had paid] the
consideration for the whole of the contract without any
abatement; and
(ii) in either case, relinquishes all claims to the
performance of the remaining part of the contract and
all right to compensation, either for the deficiency or
for the loss or damage sustained by him through the
default of the defendant.
(4) When a part of a contract which, taken by
itself, can and ought to be specifically performed,
stands on a separate and independent footing from
another part of the same contract which cannot or
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ought not to be specifically performed, the court may
direct specific performance of the former part.
Explanation.—For the purposes of this section, a party
to a contract shall be deemed to be unable to perform
the whole of his part of it if a portion of its subject
matter existing at the date of the contract has ceased to
exist at the time of its performance.
(31)Section 12 of Specific Relief Act enables the Court to grant specific
performance in respect of a part of contract in respect of situations
covered under sub-sections [2], [3] and [4]. In the present case, the
execution of Agreement by defendants 1 to 5 and 7 to 9 is not in dispute.
Therefore, the contract as such, is valid in respect of 8/9th share which is
enforceable against defendants 1 to 5 and 7 to 9. When the contract is
held to be valid and binding on defendants 1 to 5 and 7 to 9 except the 6th
defendant who is entitled to only 1/9th share, there is no impediment for
the Court to grant specific performance, if the plaintiff has otherwise
proved his readiness and willingness and entitled to a decree for specific
performance in respect of the undivided share of defendants 1 to 5 and 7
to 9 in respect of their 8/9th share. Hence, points [C] and [E] are
decided in favour of plaintiff/appellant that the suit as such
maintainable to enforce the contract as regards 8/9th share of
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defendants 1 to 5 and 7 to 9.
POINTS [C] and [E]:-
(32)This Court has already extracted the terms of Agreement and held that
time is the essence of Agreement. As per the Agreement dated
04.06.2008, the plaintiff should pay the balance of Rs.28 lakhs within
four months, i.e., before 03.10.2008. However, just before the expiry of
the period of four months, the plaintiff issued a notice through the
Advocate on 30.09.2008 which is marked as Ex.A3. In the notice, it is
stated as follows:-
''3.While the the facts are to be so, in the month of July
2008 the SIPCOT has announced its intention to
acquire lands to an extent of 100 acres in the Ariyalur
District. In pursuance of the announcement the
officials of the SIPCOT had visited the district and
inspected various places accompanied by the District
Collector and other Revenue officials and selected 4
areas to establish the SIPCOT complex. The Thelur
village where the under mentioned property is situated
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was one among the areas selected by the SIPCOT
officials. So far there is no official announcement
regarding in which area the SIPCOT complex is going
to be established. Further, it is reliably learnt that in
the selected area the land will be acquired under the
Land Acquisition Act and the Government rate will be
fixed as compensation for the land acquired. As such
there is no clear picture emerging so far and Thelur
Village is under active consideration of SIPCOT.
Under these circumstances my client wants to wait
until a clear picture emerges in respect of the place of
establishment of the SIPCOT. Since my client is
purchasing the under mentioned property for huge
amount and if these lands acquired by the government
he will not get even 1 percent of the amount he has
spent. As such though my client is ready and willing
even now to pay the entire sale consideration to you he
wants to wait till a clear picture emerges in respect of
the place of establishment of SIPCOT complex. Once a
clear picture emerges, even if it is tomorrow, my client
is ready to pay the sale consideration and get the sale
deed registered.''
(33)Therefore, from the last sentence in the said notice, it is evident that the
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plaintiff's readiness and willingness to perform his part of the contract is
only after he gets a clear picture as to the proposal of M/s.SIPCOT. Not
even a scrap of paper or independent witness is examined to show that the
apprehension of plaintiff about acquisition proposal is true. In other
words, there is no evidence to suggest that M/s.SIPCOT was searching
for lands for there purpose in and around the suit property. When the
plaintiff has agreed to pay the balance within four months, but he has
reasons to believe that he will not get the property, it is a good reason
for him to repudiate the contract. However, he is not justified in delaying
performance under mere pretext that the suit property may be acquired for
a public purpose. The question whether the apprehension is proved has
to be answered negative as there is no material or evidence regarding
such proposal. The question whether the plaintiff is justified in refusing
to come forward to pay the balance within the stipulated time, has to be
examined.
(34)Learned counsel for the appellant referred to Section 17 of the Specific
Relief Act and submitted that the plaintiff has a reasonable doubt and that
therefore, he is justified in sending the notice postponing the
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performance. The contention of the learned counsel for the appellant
referring to Section 17 of Specific Relief Act, cannot be countenanced as
Section 17 of Specific Relief Act speaks about the enforceability of a
contract at the instance of the vendors. When a suit is filed by the vendor,
the purchaser can plead that the vendor had no title or had a defective
title.
(35)When a person is seeking the equitable relief of specific performance,
he should come with clean hands and his intention behind delaying
performance shall not be to deceive the defendants. Learned counsel
appearing for the appellant relied upon a judgment of Calcutta High
Court in the case of Arun Prakash Barhal V. Tulsi Charan Basu
reported in AIR 1949 Cal 510, wherein it has held that a plaintiff is not
debarred from obtaining specific performance of the Agreement merely
on the ground that he had asked for an enquiry as to title and that the
plaintiff is entitled to a decree for specific performance. Examination of
facts of the case shows that the plaintiff therein filed a suit for specific
performance of Agreement of Sale dated 11.09.1956. The plaintiff
therein paid a sum of Rs.501/- as earnest money and the defendant therein
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failed to take steps for the ejectment of tenants in the suit premises to be
sold and to arrange for giving vacant possession as stipulated under the
Agreement. The Agreement provided for giving vacant possession and
the sale of premises free from all encumbrances. The plaintiff has
pleaded his readiness and willingness. It is the specific case of defendant
therein that the defendant had taken sufficient steps for ejectment of
tenant by instituting appropriate proceedings. While examining the
readiness and willingness of the plaintiff therein, the Court gave a
definite finding that the plaintiff was ready and willing to perform his
part of the contract and that the defendants has failed to perform their
obligation as agreed under the Agreement. When the plaintiff was ready
and willing, the Court observed that he has an option to waive
compliance of any of the terms of Agreement by the defendant and to
seek performance. Therefore, the judgment relied upon by learned
counsel appearing for the appellant has no relevance to the present case.
(36)Learned counsel also relied upon yet another judgment of a Division
Bench of Bombay High Court in the case of Lallubhai Rupchand V.
Chimanlal Manilal and Others reported in ILR [1935] 59 Bom 83 :
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AIR 1935 Bom 16, wherein it is held as follows:-
''Applying these principles to the facts of the
present case. I am of opinion that the liability of this
property to be compulsorily acquired may fairly be
said to amount to a material defects the buyer is
entitled to say that he wants a house and not a right to
compensation, and the learned trial Judge in dealing
with this part of the case has obviously applied the
wrong criterion. It has been suggested by learned
counsel for the plaintiff-respondent that the notification
having been made as long ago as 1912 must be
regarded as obsolete and that therefore there is no real
likelihood of this property being acquired. I do not feal
satisfied, however, that is so. The learned counsel
referred us to various sections of the Land Acquisition
Act, but, as far as I can see, it is nowhere provided that
the acquisition must follow within any limited time
after the notification. Difficulties might no doubt arise
in the event of steps being taken to acquire property
after the lapse of many years, because under the Act
the property is to be valued as at the date, of the
notification. Possibly the procedure in such cases may
be to publish another notification. As to that we have
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no evidence. But it seems to me that when once there
has been a notification by Government at the instance
of the Municipality that certain properties are to be
acquired for municipal purposes, such as the widening
of a street, or a town planning schema, there must
always be a likelihood of steps being taken in that
direction sooner or later. If this liability to be acquired
under the Land Acquisition Act is a material defect, as,
in my opinion, it is, there can be no doubt, I think, that
it is also one which was not capable of being
discovered with ordinary care in the sense of those
words as used in section 55(1)(a). As far as we are
aware there was really nothing at all to put the buyer
on inquiry as to that particular matter. In that respect
the fact that the notification was in 1912 is obviously in
his favour. The view that this should be regarded as
both a material and a latent defect is supported by the
cases cited by Mr. Dave for the appellant, Nursing
Dass Kothari v. Chuttoo Lall Misser [(1923) 50 Cal.
615.] and Ballard v. Way [(1836) 1 M. & W. 520.] The
Calcutta case was decided under section 20 of the
Indian Contract Act because it was found that both
parties to the contract were unaware of the fact that the
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property had been notified for acquisition. But
obviously the position of the purchaser could be no
worse if he was ignorant of the fact of the notification
while the seller was aware of it.''
(37)The question that arose before the Court was in a different situation.
The plaintiff therein, owner of the property, filed a suit for enforcement
of an Agreement of Sale and the issue framed by the Court is ''whether it
is proved that the plaintiff's title to the property agreed to be conveyed
was defective so as to entitle the defendant to refuse to complete the
contract and accept conveyance.'' Therefore, the above judgment cannot
lend support to the appellant's case.
(38)Again, learned counsel appearing for the appellant relied upon the
judgment of Bombay High Court in the case of Pandurang Laxman
Mohite Vs. Kaluram Bahiru Bhikule reported in AIR 1956 Bom 254,
wherein, Hon'ble Mr.Justice GAJENDRAGADKAR, as he then was, as a
Judge of Bombay High Court, has held as follows:-
''11. Mr. Abhyankar has very strongly relied on
the decision of this Court in
— ‘Lallubhai v. Mohanlal’, AIR 1935 Bom 16 (A). It is
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no doubt true that in this case it has been held that, if
the property which is the subject matter of an
agreement of sale is discovered to be subject to
acquisition proceedings, that would introduce both a
material and a latent defect in the title of the vendor,
and Mr. Abhyankar has referred me to the evidence in
this case which shows that the Poona Municipal
Corporation has decided to acquire this house for the
purpose of widening the road.''
(39)The expression of the great Judge in paragraph 11 of the above cited
judgment has no application to the facts of the case as the suit filed by the
plaintiff therein is for recovery of the amount of earnest money paid
under Agreement of Sale and the question was whether the vendor who
was unable to perform his part of contract, can refuse to refund the
earnest money paid by him at the time of contract. There the purchaser
came to know that the subject property was likely to be acquired by the
Pune Municipality for the purpose of widening the road and filed the suit
for return of money.
(40)Learned counsel also relied upon the judgment of this Court in the case
of Sakunthala Vs. Murugesan reported in 2002 [2] LW 737, where a
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learned Single Judge of this Court has justified the decree granted by the
Courts below for refund of the money that was advanced by the purchaser
in respect of a property agreed to be sold to the plaintiff. It was also a
case where the plaintiff entertained a doubt over the defendant's
ownership over the property. The learned Single Judge of this Court held
that the doubt as to the defect of title must be reasonable and held in that
case that the vendor should prove that he had a good and marketable title
to the property and the property is free from encumbrances. The question
that was considered and decided by this court in the said judgment has no
relevance in the present factual context.
(41)Learned counsel then relied upon an article of Edgar N.Durfee
published in University of Michigan Law School under the topic
''Mutuality in Specific Performance''. The following passages from the
text are relevant and hence, extracted below:-
''.......After two centuries of litigation and
discussion, the current formula was that the remedy
must be mutual, must be equally available to both
parties. The worst fault of this formula was its
plausibility. Equality is equity, and perfect equality
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between the parties to a contract is not attained unless
remedies are equally available to both.- The
plausibility of the doctrine served to keep it alive, even
to this day.
It was of the essence of this doctrine that the
decision of a cause should be governed, not solely by
the situation presented to the court, but as well by the
situation which would have been presented in a certain
hypothetical case which might have arisen if the now
complainant had breached the contract and the now
defendant had sued for specific performance. The
doctrine was understood to have two aspects, one
affirmative, one negative. By the former, complainant,
although he had an adequate remedy at law, should be
given relief if, in the hypothetical converse case, the
other party would have been entitled to relief (provided
that there was no affirmative objection to the relief
sought in the case before the court, such as
impossibility of compelling performance). By the
negative doctrine, complainant, although entitled to
relief in every other respect, should be denied relief if,
in the hypothetical converse case, the remedy could not
or would not (even on the affirmative doctrine of
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mutuality) be given to the other party. Stated in this
form, the doctrine seems unbelievably academic, yet
this is but a paraphrase in more precise terms of
dogmas formulated a hundred times by hard-headed
judges.
......On the other hand, the negative doctrine, if
ruthlessly applied, would work constant hardship. That
one who suffers from breach of contract and has no
adequate remedy at law should be turned away from a
court of equity because of an "equity" as attenuated as
the equity of equality, set up by the contract breaker, is
intolerable. The fallacy of such an application of the
principle of equality lies in over-emphasis of an
essentially sound principle and failure to balance
against it the conflicting equities, a fallacy against
which equity must stand constant guard. The courts,
without seeing the problem broadly enough to
recognize the inherent weakness of the doctrine of
equality of remedy,5 could not but feel the intolerable
harshness of its negative application and almost
uniformly refused to so apply it. The result was that the
negative doctrine was embroidered with exceptions.
Justice Fry stated four exceptions,6 Dean Ames eight,7
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and Clark ten.8 The exceptions literally ate up the rule.
Yet the rule continued to receive lip service, and cases
arriving at absurd results by a conscientious
application of the rule are sufficiently numerous to
demonstrate the danger of false doctrine. Judicial
instinct will usually correct the errors of judicial
reasoning, but not invariably.
...The principle of mutuality, as now- understood, has
to do with the mutual performance of mutual
obligations and is concerned entirely with securing
performance by plaintiff as well as by defendant.
Hence it is involved only when a court is asked to
enforce a bilateral contract which has not been fully
performed on plaintiff's side. It says nothing about
equality of remedy. It has nothing to do with any
hypothetical case that might have arisen if the now
plaintiff had broken the contract and the now
defendant had sued. It is concerned entirely with the
situation now before the court. What it says about that
situation may be roughly stated thus: the contract must
be considered as a whole, and the obligations of the
plaintiff looked to as well as those of the defendant; so
far as practicable, both parties should be required to
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perform their obligations at the same time; and if
simultaneous performance is impracticable the court
should either enforce the contract upon terms which
will give defendant some assurance of future
performance by plaintiff, or refuse to enforce the
contract at all-whichever is the more just, considering
the situation of both parties.''
(42)This Court is unable to get any principle to favour the submission of
learned counsel appearing for appellan. If the text that is relied upon by
the learned counsel for the appellant is considered, this Court is able to
see that the doctrine of mutuality as it is understood by the eminent
jurists, is certainly against appellant who has failed to perform his part of
the contract under the pretext of a mere apprehension about possible
acquisition in future. The principle of mutuality applied to different
situation may lead to different meaning of the doctrine itself. So far as
practicable the parties to an Agreement should be required to perform and
the obligations simultaneously. If simultaneous performance is
impracticable, the Court should either enforce upon the contract on terms
which will give defendant some assurance of future performance by
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plaintiff or refuse to enforce the contract at all, whichever is more just
considering the situation of both parties. If we examine the present case,
the plaintiff has paid just a sum of Rs.2 lakhs out of the total sale
consideration and agreed to pay Rs.28 lakhs within 4 months from the
date of Agreement. Just before expiry of the period stipulated in the
Agreement, the plaintiff came forward to postpone the time specified in
the Agreement on the ground that a proposal to acquire lands in and
around the suit property by M/s.SIPCOT is under consideration and that
the plaintiff is ready to pay the sale consideration once he get a clear
picture. After a reply repudiating the allegations, the suit is filed for
specific performance. By virtue of explanation to Section 16[c] of the
Act, the plaintiff has avoided payment of any amount during the
pendency of suit. Having regard to the specific finding that time is the
essence of contract, the contention of plaintiff that time is not the essence
of contract and that the plaintiff could not perform his part of the contract
because he had received some information regarding a proposal for
acquisition of land, cannot be countenanced. The arguments of the
learned counsel for the appellant both as to the readiness and willingness
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A.S.No.19 of 2014
of the plaintiff and the entitlement of plaintiff to get the discretionary
relief of specific performance is therefore rejected.
(43)The plaintiff/appellant has paid just Rs.2 lakhs which is just the amount
equivalent to 1/15th of the total consideration. In case a decree is granted
for specific performance that will result in unjust enrichment by appellant
at the cost and irreparable loss to defendants who had never received
amount. It is to be noted that the plaintiff's counsel has referred to the
conduct of defendants in denying the genuineness of the Agreement-
Ex.A1. It is true that the defendants have taken a stand disputing
genuineness of the Agreement and contended that the Agreement was
executed in connection with the loan transaction, the plaintiff/appellant
had with the 4th defendant. The conduct of defendants or plaintiff in a
suit for specific performance may be relevant for the purpose of
exercising the discretion whether to grant equitable relief or not. When
the plaintiff has failed to prove his readiness and willingness to perform
his part of contract in terms of the Agreement, he cannot get relief by
referring to the conduct of the defendants. Since this Court has held that
the plaintiff/appellant was never ready and willing to perform his part of
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A.S.No.19 of 2014
contract, this Court cannot grant the equitable relief in favour of
appellant/plaintiff. Hence, points [C] and [E] are answered in negative
as against the appellant/plaintiff.
(44)The Trial Court has rendered a finding that the defendants have
received a sum of Rs.2 lakhs under the suit Agreement [Ex.A1].
However, the Trial Court has granted a decree for recovery of a sum of
Rs.1 lakh. This Court is unable to sustain the judgment of the Trial Court
restricting the amount after finding that a sum of Rs.2 lakhs was
advanced to defendants. Therefore, the suit is liable to be decreed as
against defendants 1 to 5 and 7 to 9, by directing them to pay a sum of
Rs.2 lakhs to the plaintiff/appellant with interest at the rate of 12% per
annum from July 2009 till date of payment.
(45)Except the above modification, the judgment and decree dated
28.06.2013 made in O.S.No.18 of 2011 passed by the learned Principal
District and Sessions Judge, Ariyalur, is upheld and the Appeal Suit
stands dismissed with cost. Consequently, connected miscellaneous
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A.S.No.19 of 2014
petition is closed.
[SSSRJ] [AANJ]
10.01.2023
Index : Yes / No
Internet : Yes
Netural Citation : Yes/ No
cda/AP
To
1.The Principal District and Sessions Judge,
Ariyalur.
2.The Section Officer, VR Records,
High Court, Chennai.
S.S.SUNDAR, J.,
AND
A.A.NAKKIRAN, J.,
cd/AP
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A.S.No.19 of 2014
A.S.No.19 of 2014
10.01.2023
https://www.mhc.tn.gov.in/judis
