Madras High Court

S.Periyasamy vs C.Rengasamy on 5 June, 2023

    2023/MHC/3059




                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 05.06.2023

                                                     CORAM:

                            THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                         A.S(MD)No.32 of 2010
                                                 and
                                  C.M.P(MD)Nos.5129 and 5130 of 2022
                                                 and
                                         M.P(MD)No.1 of 2010

                     S.Periyasamy                    :Appellant/Plaintiff

                                              .vs.

                     1.C.Rengasamy

                     2.P.Chinnasamy

                     3.Pappathi

                     (Respondents 2 and 3 are impleaded as per order of this Court
                     made in C.M.P(D)No.8226 of 2019 in A.S(MD)No.32 of 2010, dated
                     4.12.2019)                  :Respondents/Defendants


                     PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure
                     Code against the disallowed portion of the decree and judgment
                     made in O.S.No.50 of 2005, dated 6.10.2009, on the file of the
                     District Judge, Karur.


                                  For Appellant            :M/s.V.K.Vijayaraghavan
                                                            Senior Counsel
                                                            for Mr.S.Prabhu

                                  For Respondent-1         :Mr.S.Anand Chandrasekar
                                                            for M/s.Sarvabhauman
                                                                        Associates


                     1/11
https://www.mhc.tn.gov.in/judis
                                       For Respondents       :Mr.E.K.Kumaresan
                                            2 and 3
                                                  JUDGMENT

*************

Aggrieved over the dismissal of the suit for the relief of

specific performance, the present appeal suit came to be filed by

the unsuccessful appellant/Plaintiff.

2.The parties are referred to as per their ranking before the

trial Court.

3.The brief facts leading to the filing of the present appeal

suit is as follows:

The defendant as a power agent of his brothers and their

sons on their behalf and on his behalf had entered into a sale

agreement with the plaintiff for the sale of property for a total sale

consideration of Rs.13,50,000/- on 21.04.2004 and received a sum

of Rs.2 lakhs as advance amount. The time agreed between the

parties to complete the sale within six months from the date of sale

agreement. It is the further stand of the plaintiff that the time

agreed between the parties is only for document sake and not the

essence of the contract. The Plaintiff is always ready and willing to

perform his part of contract and is demanding the defendant to

https://www.mhc.tn.gov.in/judis receive the balance sale consideration and to execute the sale

deed. However, the defendant was postponing the same by giving

some reason or other. Hence the plaintiff issued a legal notice to

the defendant on 17.10.2005 calling upon him to receive the

balance sale consideration and to execute the sale deed. But no

reply was sent. Hence the suit is filed by the plaintiff seeking for

the relief of specific performance.

4.The defendant admitted the agreement, dated 21.4.2004

and the receipt of Rs.2 lakhs as advance amount. It is the case of

the defendant that the time fixed in the sale agreement is the

essence of the contract. Thoughout the agreement period, the

defendant is always ready and willing to perform his part of

contract, however, the plaintiff has not come forward to get the

sale deed executed from the defendant, despite several insistence

made by the defendant. Further the plaintiff was never ready and

willing to perform his part of the contract.

5.On the basis of the above pleadings, the following issues

were framed for consideration:

1.Whether the time is the essence of the sale agreement?

https://www.mhc.tn.gov.in/judis

2.Whether the plaintiff was not ready and willing to complete

the terms of the agreement as claimed by the defendant, is

proved?

3.Whether the plaintiff is entitled to the relief of specific

performance?

4.To what other relief, the plaintiff is entitled to?

6.Before the trial Court, on the side of the plaintiff, P.W.1 was

examined and Ex.A1 to Ex.A4 were marked. On the side of the

defendant, D.W.1 was examined and no document was marked.

7.The trial Court, after analyzing the evidence on record,

found that the plaintiff was never ready and willing to perform his

part of contract and dismissed the suit for specific performance,

however, the Court below has granted the alternative relief

directing the defendant to pay the plaintiff the advance amount of

Rs.2 lakhs with interest at the rate of 12%p.a from the date of sale

agreement till the realizing of the entire sale amount. Aggrieved

over the same, the present appeal suit is filed.

8.The learned counsel for the appellant would submit that

https://www.mhc.tn.gov.in/judis though the sale could not be completed within the agreed period,

the property has been developed as plots, having received

substantial amount as advance to the tune of Rs.2 lakhs.The

defendant has taken undue advantage and according to him some

plots remain unsold.Therefore the advance amount could be

adjusted by handing over the unsold plots and the plaintiff is ready

to purchase those unsold plots. Hence it is the contention of the

plaintiff that the specific performance may be granted towards the

part of the contract.

9.Whereas, the learned counsel for the respondent would

submit that the plaintiff has not shown his readiness and

willingness and the sale agreement itself stipulates specific time

and the same cannot be ignored altogether. The time is the

essence of the contract.Though legal notice was sent, it is sent

after the expiry of the sale agreement period and the suit has

been filed on 9.11.2005. However, during the entire trial, the

plaintiff has not shown readiness and willingness to deposit the

remaining sale consideration into the Court and further, no

evidence whatsoever was produced to show that the plainiff has the

capacity to raise the funds towards the paymnent of remaining sale

consideration. Hence, it is the contention of the defendant that the

https://www.mhc.tn.gov.in/judis trial Court has rightly appreciated the evidence on record and

rejected the relief of specific performance.

10.In the light of the above submission, now the point that

arose for consideration in this appeal suit is as follows:

1.Whether the plaintiff was always ready and willing to

perform his part of the contract?

2.Whether the plaintiff is entitled to enforce the contract in

respect of the part of the sale agreement?

3.To what other relief, the plaintiff is entitled to?

11.It is not disputed about the sale agreement, dated

21.4.2004 by the defendant. In respect of the sale of the suit

property consisting of 49,041.1/4 s1.ft of land and 25 feet road for

a total sale consideration of Rs.13,50,000/-. It is not in dispute

about the payment of advance amount to the tune of Rs.2 lakhs. It

is specifically agreed between the parties that the remaining sale

consideration shall be paid within a period of six months from the

date of sale agreement.Though the time is not the essence of the

contract insofar as the immovable properties are concerned.The

specific time agreed between the parties in the contract cannot be

https://www.mhc.tn.gov.in/judis ignored altogether. In fact, the same makes the time as essence of

the contract., On a perusal of the entire evidence of P.W.1 plaintiff,

no materials whatsoever was available on record to show that he

has made an attempt to perform his part of the contract during the

existence of the sale agreement. Further there is no materials

available on record to show that he had the capacity to mobilize the

fund at the relevant point of time. It is relevant to note that in a

suit for specific performance, a person seeking to enforce the

contract has to show his readiness and willingness from the

inception of the sale agreement till the end. Readiness is the

capacity to raise the fund and willingness is the mental attitude of

the plaintiff. Only both go together and if the same is not

established on record, then the relief of specific performance

cannot be granted. On a perusal of the evidence of P.W.1 and the

documents produced Ex.A1-sale agrement and Ex.A1-legal notice,

no other materials whatsoever was available on record to show

that the plaintiff is always ready and willing to perform his part of

the contract. Legal notice Ex.A2 itself was issued only after the

expiry of the time period of six months as per the sale agreement.

That itself clearly indicates that the plaintiff was not interested in

pursuing the contract dilignetly. Thereore the relief of specific

performance as sought for by the plaintiff cannot be granted. That

https://www.mhc.tn.gov.in/judis apart, no evidence whatsoever is availble on record to show that

the plaintiff has made an attempt to raise the funds to pay the

remaining portion of the sale consideration within the period of

agreement between the parties. Even at the time of filing the suit

or after filing the suit, no attempt was made by the plaintiff to show

that he has the capacity to pay the balance sale consideration and

to get the sale executed. Therefore the person who come for

equitable relief merely based on the sale agreeement is not entitled

to such relief. Without showing any act on his part to prove the

readiness and willingness from the date of inception of the sale

ageement till the end, the plaintiff is not entitled for the relief of

specific performance as sought for in the suit.

12.In such view of the matter, this Court is of the view that

the plaintiff has not proved the factum of readiness and willingness

to enforce his part of the contract ExA1. Insofar as the contention

of the learned counsel for the plaintiff that at least towards the

advance amount, certain plots could be sold to him and the part of

the contract could be enfored, this Court is of the view that to

enforce the part of the contract, mandatory condition as envisaged

under Sectioon 12 of the Specific Relief Act has to be proved and

that also, the payment of the entire sale consideration for the part

https://www.mhc.tn.gov.in/judis of performance of the contract. I do not find any materials either in

the form of pleadings or by way of affidavit before this Court to

satisfy the mandatory conditions of Section 12 of the Specific

Relief Actand the same reads as follows:

''12(1)................

12(2)...............

12(3)(b)(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 in a case falling under clause(b), (pays or has 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.''

Accordingly, the said contention of the learned counsel for the

appellant cannot be countenanced in the appeal stage. The trial

Court has granted the decree in respect of the alternative relief of

refund of Rs.2 lakhs with interest at 12% pa., depsite the fact that

the alternative relief was not claimed by the plaintiff. In fact, the

trial Court has exercised the equity jurisdiction and granted such

https://www.mhc.tn.gov.in/judis an decree taking note of the fact that the payment of advance

amount was not disputed. Though such relief is not automatic,

since the trial Court invoked the equity jurisdiction, this Court is

not inclined to interfere with such finding.

13.Accordingly, the Appeal Suit is dismissed, confirming the

judgment and decree of the Court below in O.S.No.50 of 2005,