Madras High Court
A.Muthu Kumar vs Mrs.Thayarammal on 5 June, 2023
AS.No.42 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2023
CORAM
THE HONOURABLE Mr.JUSTICE S.S.SUNDAR
and
THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN
AS. No.42 of 2013
A.Muthu Kumar
... Appellant/plaintiff
Versus
1.Mrs.Thayarammal
2.Mrs.K.Premavathi
3.Ms.Prathiba
4.Mr.P.Mohan
... Respondents/Defendants
PRAYER: First Appeal filed under Order 41 Rule 1 with Section 96 of C.P.C.,
praying to set aside the judgment and decree dated 28.06.2012 passed in
OS.No.627 of 2008 on the file of the Hon'ble Principal District Judge,
Coimbatore.
For appellant : Mr.M.V.Venkataseshan
Senior counsel
for Mr.M.Purushothaman
For respondents : R1 & R2 died
Mr.K.Myilsamy for R3
Mr.V.Anandha Moorthy for R4
*****
1 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J)
The plaintiff in the suit in OS.No.627 of 2008 on the file of the Principal
District Court, Coimbatore, is the appellant in the above appeal. The appellant
filed the suit for specific performance of an agreement of sale dated 23.09.2005
in respect of the suit property. The suit property is described as an extent of 50
cents out of an extent of 4.72.0 hecters in S.No.56/1 in Tiruppur Taluk,
Tiruppur District with reference to four boundaries. A reading of description of
property in the agreement would show that the suit sale agreement is in respect
of 50 cents out of a larger extent of property owned by the defendants.
2. The case of the appellant in the plaint is that the defendants, who are
the owners of the suit property entered into an agreement of sale in respect of
the suit property on 23.09.2005 at the rate of Rs.65,000/- per cent. Out of the
total sale consideration of Rs.32,50,000/- (Rupees Thirty two lakhs and fifty
thousand only), it is stated in the plaint that the plaintiff has paid an advance
amount of Rs.10,00,000/- (Rupees ten lakhs only) on the date of agreement and
that a further sum of Rs.3,00,000/- was paid on 27.12.2005 by way of Bankers
2 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
Cheque drawn in favour of second defendant. It is admitted that the 1st
defendant is the mother-in-law of 2nd defendant, who is the mother of
defendants 3 and 4, who are minors on the date of alleged agreement. It is
stated in the plaint that the defendants have agreed to execute a sale deed in
favour of the plaintiff on or before 15.02.2006 after receiving the balance sale
consideration. Stating that the defendants had agreed to measure the land
before executing the sale deed and that the defendants however did not come
forward to measure the land, the plaintiff filed a suit immediately after issuing a
pre-suit notice on 08.05.2008. It is admitted that the reply notice has also been
sent on behalf of defendants on 14.05.2008 specifically denying the contents in
the suit notice.
3. From the plaint, the plaintiff has repeatedly mentioned that the
plaintiff could not pay the balance because the suit property was never
measured as agreed by defendants in the suit agreement. It is the case of the
plaintiff that the defendants had never approached the plaintiff to perform their
obligations subsequent to the agreement. Even though the suit was filed long
after the time specified in the Sale agreement, the plaintiff explained the delay
by stating that the plaintiff wanted to settle the matter amicably as defendants 1
3 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
and 2 are women. In the reply notice as well as in the written statement filed by
the 1st defendant, which was adopted by the 2nd defendant, the specific stand
taken by the defendants was that time was the essence of the contract and that
the plaintiff, who had agreed to perform his part of the contract by paying the
balance of sale consideration on or before 15.02.2006, did not come forward to
pay the balance. Therefore, the specific defence taken in the written statement
is the absence of readiness and willingness of the plaintiff.
4. It is the specific case of the defendants that from 23.09.2005 till
15.02.2006, the plaintiff did not come forward and meet the defendants with the
balance amount to complete the sale. Since the plaintiff has issued a legal
notice only on 08.05.2008 after a lapse of 2 years 3 ½ months calling upon the
defendants to measure the property, it is contended by the defendants that the
plaintiff was not ready and willing to pay the balance as agreed under the sale
agreement. They also pleaded that the suit is not maintainable in view of the
doctrine of laches because of the long delay in approaching the Court for
specific performance. The defendants 3 & 4 also filed independent written
statement raising the defence that the suit agreement as against them is not
maintainable and the sale agreement is not binding on the defendants 3 & 4. It
4 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
is specifically stated that the 2nd defendant is not competent to represent the
minor as Kartha or the Manager and that the suit agreement is not for legal
necessity. The defendants 3 & 4 also contended that they were not the
beneficiaries of the sum of Rs.13,00,000/- (Rupees Thirteen lakhs only) stated
to have been received by defendants 1 & 2 and therefore, there cannot be a
decree directing defendants 3 & 4 to refund the sum allegedly received by
defendants 1 & 2.
5. The Trial Court framed the following issues:-
(i) Whether the plaintiff is entitled to the relief of specific
performance as prayed for?
(ii) Whether the suit filed by the plaintiff is maintainable under law?
(iii) Whether there was any cause of action to the suit?
(iv) Whether the suit is barred by limitation?
(v) Whether the 3rd defendant is entitled to get compensation?
(vi) To what relief?
6. The plaintiff examined himself as PW-1. One P.Rajendran was
examined as PW-2. On behalf of the plaintiff, Exs.A1 to A10 were marked.
The 2nd defendant was examined herself as DW-1 and 4th defendant was
examined as DW-2. Defendants marked exhibits B1 and B2.
5 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
7. In the course of the trial, it was brought to the notice of the Court that
a suit for partition was filed by the 4 th defendant including the suit property. It
is now reported before this Court that the suit was decreed and the subject
matter of the suit is allotted in favour of 3rd defendant in the suit. This Court is
not inclined to go into the issues as there is no proper pleadings as to the
subsequent events. None of the parties produced before this Court the
judgment in the partition suit pointing out any legal implication in this suit.
8. The Trial Court found that the plaintiff is not entitled to the relief of
specific performance mainly on the ground that the plaintiff did not come
forward to pay the balance within the time stipulated in the agreement and that
the agreement is not even binding on the minors as it is not pleaded or proved
that suit agreement is for any legal necessity or for the benefit of minors. The
Trial Court also observed that the mother/2nd defendant cannot act as a Kartha
or Manager of joint family to bind the share of defendants 3 & 4. The Trial
Court further held that the suit itself is liable to be dismissed on the ground of
delay and laches pointing out that the plaintiff came forward to call upon the
defendants to measure the property and execute the sale deed only on
6 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
08.05.2008 by issuing the pre-suit notice. Even though the Trial Court held
that the suit is not barred by limitation, the Trial Court has recorded a finding
that the plaintiff has not proved that the agreement is for legal necessity or for
the benefit of the estate of minors. Therefore, the Trial Court dismissed the suit
for specific performance. However, the Trial Court granted alternative prayer
for refund of a sum of Rs.13,00,000/- with interest @ 12% p.a from the date of
suit till date of decree and thereafter at 6% p.a till realisation. Aggrieved by the
judgement and decree of the Trial Court, the above appeal is filed by the
plaintiff.
9. The learned senior counsel appearing for the appellant strenuously
argued the appeal on the following points:-
1. The Trial Court failed to see that the plaintiff and defendants have
specifically agreed for measurement of property and that the
defendants have not come forward to measure the property even
after the issuance of notice (Ex.A3). The learned counsel
submitted that the plaintiff cannot be blamed for not coming
forward to pay the balance within the stipulated time. He also
relied upon the judgement of Hon'ble Supreme Court in the case
of Gaddipati Divija and another Vs. Pathuri Samrajyam and
others reported in 2023 SCC OnLine SC 442.
7 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
2. The learned Senior counsel appearing for the appellant submitted
that the Trial Court erroneously held that the suit agreement is not
enforceable on the ground that the agreement is not for legal
necessity. Since the suit is filed after the minors attained majority,
learned senior counsel submitted that the suit agreement which is
not challenged by minors on attaining majority is binding on
minors as the mother had signed the agreement on behalf of the
minors. Having entered into an agreement of sale for themselves
and by representing the minors, it is not open to the defendants 1
& 2 to plea that agreement is not enforcible.
3. The learned senior counsel then submitted that the suit has been
filed against the defendants 3 & 4 after they became majors and
therefore, the suit cannot be dismissed on the ground that the
agreement is not enforceable against the minors.
4. The learned senior counsel referring to the sale agreement
submitted that the suit agreement is with reference to four
boundaries and that the property can be identified only after a
survey and measurement. Since the plaintiffs have been
repeatedly asking the defendants to survey, identify and demarcate
the suit schedule property, the Trial Court ought to have held that
the plaintiff was always ready and willing to perform his part of
the contract and hence, they are entitled to get a decree for specific
performance of the suit agreement.
10. On the other hand, learned counsel appearing for the respondents
8 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
referring to the suit agreement and the admission of the plaintiff in the course
of evidence, submitted that time is indeed the essence of the contract. The
learned counsel contended that the suit is filed nearly two and half years after
the expiry of the period specified in the agreement and that the suit has rightly
been dismissed on the ground of laches. The learned counsel also submitted
that the plaintiff has not given any valid explanation for the delay in filing the
suit. After referring to the pleadings, the counsel submitted that the plaintiff
has neither pleaded nor proved his readiness and willingness in the manner as
contemplated under Section 16 (c) of the Specific Relief Act, 1963. Referring
to the facts that the suit property has been described with reference to four
boundaries and that parties had no issues regarding identity of the property to
be conveyed, it is submitted by the learned counsel for the respondents that the
submission of appellant's counsel regarding measurement of the property is not
a valid excuse for not paying the balance within the time specified in the
agreement. He also brought to the notice of this Court a few judgements of
Hon'ble Supreme Court on the issue regarding readiness and willingness and
the doctrine of laches particularly the judgement of Hon'ble Supreme Court in
the case of Saradamani Kandappan Vs. S.Rajalakshmi and others reported in
(2011) 12 SCC 18.
9 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
11. Having regard to the pleadings and submissions of both sides, this
Court is of the view that the following points arise for consideration:-
a) Whether the plaintiff was ready and willing to perform his
contract in terms of the sale agreement dated 23.09.2005?
b) Whether the suit for specific performance is liable to be
dismissed on the ground of laches?
c) Whether the plaintiff is entitled to the equitable relief of
specific performance having regard to the facts and circumstances of
this case?
d) Whether the suit agreement is enforceable against defendants 3
& 4, who are minors at the time of sale agreement dated 23.09.2005?
Point (a)
12. The following facts are not in dispute. The agreement of sale was
executed between plaintiff and defendants 1 & 2 on 23.09.2005. On the date of
agreement a sum of Rs.10,00,000/- was received as advance. This payment is
acknowledged in the agreement. Subsequent to the agreement, a sum of
Rs.3,00,000/- was paid on 27.12.2005 by way of cheque and the receipt of said
cheque was also acknowledged by the 2nd defendant by way of an endorsement.
Second defendant has signed the agreement on behalf of defendants 3 & 4.
10 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
13. As per the agreement marked as Ex.A2, the plaintiff has agreed to
pay the balance amount of Rs.22,50,000/- on or before 15.02.2006 by cash.
There is a specific clause in the agreement to the effect that if the plaintiff fails
to pay the balance amount, the amount, which has been paid as advance will be
forfeited by the defendants. It is only when the plaintiff comes forward to pay
the balance amount within the stipulated time i.e., on 15.02.2006, he may seek
specific performance by depositing the balance amount if the defendants refuse
to execute sale deed.
14. The relevant terms of the agreement is extracted before for proper
understanding:-
“bc&(1) Kjy; (4) tiu ,yf;fkpl;lth;fspd; RthjPd mD
nghfj;jpy; ,Ue;J tUfpwJkhd brhj;Jf;fspy; Xh; gFjp g[/V/0.50 brz;l;
tp!;jPuzKs;s g{kpia ehsJ njjpapy; ek;kpy; (5) ,yf;fkpl;ltUf;F
brz;l; 1f;F U:.65.000-? (U:gha; mWgj;ije;jhapuk; kl;Lk;) tPjk;
bkhj;jkhf U:/32.50.000-? (U:gha; Kg;gj;J ,uz;L yl;rj;J Ik;gjhapuk;
kl;Lk;) mWjpahf Rj;jf; fpiuaKk; RthjPdKk; bra;J bfhLg;gjhf
bkhj;j tpiyf;Fg; ngrp xg;g[f; bfhz;L bc& fpiuaj; bjhifapy; (5)
,yf;fkpll; thplkpUe;J (1) (2) ,yf;fkpl;lth;fs; ml;thd;rhf U:/10.00.000-I
(U:gha; gj;J yl;rk; kl;Lk;) bgw;Wf; bfhz;Ls;shh;fs;/ ehsJ
11 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
njjpapypUe;J 15/02/2006 Mk; njjp tiuapyhd fhyf; bfLtpw;Fs; (5)
,yf;fkpll; th; ghf;fpf; fpiuaj; bjhif U:/22.50.000/- (U:gha; ,Ugj;J
,uz;L yl;rj;J Ik;gJ Mapuk; kl;Lk;) a[k; (1) (2) ,yf;fkpl;lth;fsplk
buhf;fkhfr; brYj;jp jd; brytpYk; bghUg;gpYk; jd; bgaUf;fhtJ jhd;
nfhUk; egh;-egh;fspd; bgah;fSf;fhtJ gphpj;njh my;yJ bkhj;jkhfnth
fpiuaKk; RthjPdKk; bgw;Wf; bfhs;s ntz;oaJ/ jtWk; gl;rj;jpy;
ehsJ njjpapy; (1) (2) ,yf;fkpl;lth;fsplk; bfhLj;Js;s ml;thd;!;
bjhifia ,He;J tplntz;oaJ/
bc& 15/02/2006 Mk; njjp tiuapyhd fhyf;bfLtpw;Fs; (5)
,yf;fkpll; th; ghf;fpf; fpiuaj; bjhifiar; brYj;jp fpiuaKk; RthjPdKk;
bgw;Wf; bfhs;sj; jahuhf ,Ue;J (1)(2) ,yf;fkpll; th;fs; (5)
,yf;fkpll; tUf;F fpiuaKk; RthjPdKk; bra;J bfhLf;fj; jtWk; my;yJ
kWf;Fk; gl;rj;jpy; ghf;fpf; fpiuaj; bjhifia rptpy; nfhh;lo; y; blghrpl;
bra;J nfhh;l; K:yk; fpiuaKk; RthjPdKk; bgw;Wf; bfhs;s (5)
,yf;fkpll; tUf;F g{uz chpika[zL
; vd;Wk; mjdhy; (5)
,yf;fkpll; tUf;F Vw;gLk; midj;J bryt[j; bjhiffisa[k; brYj;j
(1)(2) ,yf;fkpll; th;fs; ,jd; K:yk; cWjp Twfpd;whh;fs;/
//////////
fPH;fhQqk; brhj;jf;fis (5) ,yf;fkpl;lth; fpiuak; bgWtjw;F
Kd;dh; fPH;fhQqk; brhj;Jf;fis chpa rh;ntah; my;yJ ,d;$pndah;
itj;J mse;J mj;Jfz;L bkhj;j tp!j; Puzj;jpw;nfw;g fpiuaj;
bjhifiw bgw;Wf; bfhs;s (1) (2) ,yf;fkpll; th;fs; ,jd; K:yk; cWjp
TWfpdw; hh;fs;/”
12 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
15. From the plain reading of terms of agreement, parties have
consciously agreed to specify time as the essence of agreement. There is no
intervening factor to suggest that parties have given up the stipulation as to the
relevance of time. Hence, time is the essence of agreement. From the
agreement, it is seen that the obligation to pay the balance sale consideration on
or before 15.02.2006 does not depend upon the survey or measurement of the
property as stipulated in the agreement. It is also to be seen that the agreement
is in respect of an extent of 50 cents out of a larger extent of 4.72.0 hectares
(17.81 acres) in survey No.56/1. The suit property has been described with
reference to four boundaries. Eastern and southern boundaries for the property
agreed to be sold are the remaining lands in the same survey numbers. Suit
property is described as the North western portion of S.No.56/1. It is admitted
that the remaining lands in the suit survey number belongs to defendants.
There is no issue regarding identity of the property specified in the agreement.
When 50 cents out of a larger extent of property owned by defendants is agreed
to be sold, the plaintiff cannot have any confusion regarding the portion or
extent to be sold or to arrive at the balance of sale consideration, which he has
to pay for the suit property. Therefore, the contention that the plaintiff was
requesting the defendants to survey and measure the property appears to be a
13 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
false case. The clause relating to survey and measurement is a formal clause.
The plaintiff did not call upon the defendants to measure the property before
the time. It is only to justify plaintiff's failure to offer balance sale
consideration, he has come forward with this lame excuse. Learned counsel for
appellant relied upon the judgment of Hon'ble Supreme Court in Gaddipati
Divija and another Vs. Pathuri Samrajyam and others reported in 2023 SCC
OnLine SC 442 where demarcation of property was part of agreement. It
cannot be applied to the present case when the consideration is fixed and no
demarcation is required as per agreement and plaintiff never insisted before
pre-suit notice. The plaintiff has to prove his readiness and willingness in
terms of the agreement. This has been repeatedly held by this Court and
Hon'ble Supreme Court that the readiness and willingness have to be
established and it is a personal bar to seek relief of specific performance
without pleading and proving of readiness and willingness. Hon'ble Supreme
Court in the case of Man Kaur(Dead) by Lrs. Vs. Hartar Singh Sangha
reported in (2010) 10 SCC 512 has held as follows:-
“23. The learned counsel for the respondent contended that in terms of
the agreement, the defendant had to furnish an NOC from Chandigarh
Administration, as also ULC clearance and income tax clearance required for
the sale and there was nothing to show that she had obtained them, and
14 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
therefore the question of the plaintiff proving his readiness and willingness to
perform his obligations did not arise. This contention has no merit. There are
two distinct issues. The first issue is the breach by the defendant vendor which
gives a cause of action to the plaintiff to file a suit for specific performance. The
second issue relates to the personal bar to enforcement of a specific
performance by persons enumerated in Section 16 of the Act. A person who
fails to aver and prove that he has performed or has always been ready and
willing to perform the essential terms of the contract which are to be performed
by him (other than the terms the performance of which has been prevented or
waived by the defendant) is barred from claiming specific performance.
Therefore, even assuming that the defendant had committed breach, if the
plaintiff fails to aver in the plaint or prove that he was always ready and willing
to perform the essential terms of contract which are required to be performed
by him (other than the terms the performance of which has been prevented or
waived by the plaintiff), there is a bar to specific performance in his favour.
Therefore, the assumption of the respondent that readiness and willingness on
the part of the plaintiff is something which need not be proved, if the plaintiff is
able to establish that the defendant refused to execute the sale deed and thereby
committed breach, is not correct. Let us give an example. Take a case where
there is a contract for sale for a consideration of Rs. 10 lakhs and earnest
money of Rs. 1 lakh was paid and the vendor wrongly refuses to execute the
sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there
is a clear breach by the defendant. But in that case, if the plaintiff did not have
the balance Rs. 9 lakhs (and the money required for stamp duty and
registration) or the capacity to arrange and pay such money, when the contract
had to be performed, the plaintiff will not be entitled to specific performance,
even if he proves breach by the defendant, as he was not “ready and willing” to
perform his obligations.”
15 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
16. In the case on hand, the plaintiff has not even proved by acceptable
evidence that he had funds to pay the balance in terms of the agreement of sale.
The plaintiff has admitted that he did not issue any notice before 15.02.2006 to
defendants informing them about his readiness. He also admit that he has not
produced any document to show that he had money to pay balance. From the
evidence this Court finds no iota of evidence to show that the plaintiff had the
money to pay balance before the stipulated date or his capacity to mobilise
funds within the time. If the judgment of Hon'ble Supreme Court above
referred to is applied, this Court has no other option but to hold that the
plaintiff was not ready and willing to perform his part of the agreement in terms
of the time stiupulation.
17. The learned senior counsel appearing for the appellant submitted that
the suit was decreed exparte and the plaintiff deposited the entire balance as per
the agreement in 2019 pursuant to the exparte decree. That will not absolve the
plaintiff from proving the readiness and willingness in terms of the agreement.
As pointed out earlier, the plaintiff has agreed under Ex.A2 to pay the balance
on or before 15.02.2006 unconditionally. As per the terms of the agreement,
the amount which has been paid as advance can be forfeited by the defendants,
if the plaintiff does not pay balance before 15.02.2006. In the case on hand, the
16 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
plaintiff does not come forward to pay the balance on or before 15.02.2006.
This Court has already indicated that the plaintiff has entered into an agreement
with a full understanding of the property and its identity with reference to four
boundaries. In such circumstances, the absence of the plaintiff's readiness and
willingness to pay the balance is fatal.
Point (b) to (d)
The plaintiff has come forward with the suit notice only on 08.05.2008
nearly 2 years 3 months after the date specified in the agreement for sale. The
suit was filed on 17.07.2008. Though the suit is filed within three years from
the date specified in the agreement for sale, the plaintiff has not come forward
with a proper explanation for the long delay in approaching the Court for
specific performance. The lone excuse given by the plaintiff that the
defendants 1 & 2 are women and therefore, the plaintiff did not file the suit but
wanted to settle the issue with the defendants. This Court is unable to accept
the case of the plaintiff. We have already seen that the plaintiff was not ready
and willing. Hon'ble Supreme Court in the case of K.S Vidyanadam Vs.
Vairavan reported in 1997 3 SCC 1 has referred to the change of
circumstances to insist time as the essence of the agreement when parties have
stipulated time and the consequences of delay in approaching the Court.
17 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
Hon'ble Supreme Court in the case of Saradamani Kandappan Vs.
S.Rajalakshmi and others reported in (2011) 12 SCC 18 following the
judgment in K.S.Vidyanadam's case has held as follows:-
“43. Till the issue is considered in an appropriate case, we
can only reiterate what has been suggested in K.S. Vidyanadam
[(1997) 3 SCC 1] :
(i) The courts, while exercising discretion in suits for specific
performance, should bear in mind that when the parties prescribe a
time/period, for taking certain steps or for completion of the
transaction, that must have some significance and therefore time/period
prescribed cannot be ignored.
(ii) The 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. The 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 that 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 the 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.”
18 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
18. As pointed out by the Hon'ble Supreme Court keeping in mind the
change of circumstances particularly having regard to the inflation and steep
rise in price for immovable property through out the country, we prefer to
follow the judgment of Hon'ble Supreme Court in Saradamani Kandappan's
case. We have already seen that the suit has been filed nearly 2 years 3 months
after the time specified in the agreement for performance to pay the balance.
We have already seen that the obligation of plaintiff to pay the balance is
unconditional and he was required to forego the amount, which he had paid as
advance, if he fails to pay as stipulated. He is unable to pay the balance within
the time stipulated. In such event, the delay in filing the suit with an
unreasonable explanation is fatal and therefore, the suit is liable to be
dismissed. The Trial Court has rightly held that the suit is also liable to be
dismissed on the ground of laches.
19. Considering the scope of Section 20 of Specific Relief Act, 1963, this
Court in the catena of judgments has held that the plaintiff should approach the
Court with clean hands when he seeks specific performance. In the present
case, as held earlier, the plaintiff has filed the suit with an inordinate delay of 2
years 3 months without valid explanation for such an unreasonable delay. The
19 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
defendants have specifically pleaded about the rise in price and the prejudice
that would be caused to the defendants in case the suit for specific performance
is decreed. The plaintiff, who has committed breach is not entitled for the
equitable relief of specific performance. Therefore, we decide this point
against the plaintiff/appellant. The learned senior counsel for the appellant
submitted that the plaintiff has paid a substantial amount of Rs.10,00,000/-
nearly 1/ 4th sale consideration in 2005 and that a refund of a sum with interest
at 12% may not be a proper compensation. The learned counsel wanted this
Court to enhance the amount of refund taking into account the value of money
as on date. This Court is unable to countenance the argument in view of the
finding we have rendered that the plaintiff has committed breach. The
defendants cannot be blamed for the failure on the part of the plaintiff to
honour his promise he has made in the suit agreement. Hence, this Court is
helpless to grant any further relief to the plaintiff. In view of the findings we
have rendered above, this Court is not inclined to go into the issue whether the
suit agreement is enforceable against defendants 3 & 4 who were minors at the
time of agreement. We find no merits in the Appeal Suit.
20 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
20. Accordingly, the Appeal Suit is dismissed. There shall be no order
as to costs.
(S.S.S.R.J.,) (C.K.J.,)
05.06.2023
Speaking Order : Yes / No
Index : Yes / No
Neutral Citation case: Yes/No
kmi
To
1. The Principal District Judge,
Coimbatore.
2. The Section Officer,
V.R.Section, High Court, Madras.
21 / 22
https://www.mhc.tn.gov.in/judis
AS.No.42 of 2013
S.S.SUNDAR, J.
and
C.KUMARAPPAN, J.
kmi
AS. No.42 of 2013
05.06.2023
22 / 22
https://www.mhc.tn.gov.in/judis
