Madras High Court
Muniyandi vs Rajendran on 3 March, 2023
S.A(MD)No.601 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)No.601 of 2016
and
C.M.P(MD)No.8877 of 2016
Muniyandi ... Appellant/Appellant
/Plaintiff
Vs.
Rajendran ... Respondent/Respondent
/ Defendant
PRAYER :-
This Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the judgment and decree, dated 07.03.2016 passed in A.S.No.65
of 2014 on the file of the Subordinate Court, Sivagangai, confirming the
judgment and decree, dated 27.01.2014 passed in O.S.No.54 of 2011 on the
file of the District Munsif Court, Sivagangai.
For Appellant : Mr.M.Saravanan
For Respondent : Mr.D.Srinivasa Raghavan
for Mr.S.P.Maharajan
1/10
https://www.mhc.tn.gov.in/judis
S.A(MD)No.601 of 2016
JUDGMENT
The plaintiff in the suit is the appellant. He filed a suit for specific
performance of a sale agreement, dated 21.11.2008. The suit was dismissed
by the trial Court. However, the trial Court was pleased to grant a decree for
return of advance amount. The appeal filed by the appellant was also
dismissed. Aggrieved by the same, the appellant is before this Court.
2.According to the appellant, he entered into a sale agreement with the
respondent on 21.11.2008 for purchase of 1 acre 90 cents in S.No.241/1 in
Sakkanthi Village, Pudhupatti Group, Sivagangai Taluk. The agreed sale
consideration was fixed at Rs.38,500/-. As per the terms of agreement, the
appellant paid an advance amount of Rs.30,000/- to the respondent on the
date of agreement. The balance of Rs.8,500/- was agreed to be paid within a
period of one month. It was further averred that when the appellant expressed
his readiness to complete the transactions within the time stipulated by the
agreement, the respondent represented that he filed a suit for declaration of
title and injunction against a third party in O.S.No.95 of 2009 on the file of
the District Munsif Court, Sivagangai and hence, sale transactions could be
completed, after disposal of the said suit. The above said suit got disposed on
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S.A(MD)No.601 of 2016
29.10.2009. Thereafter, the respondent issued a notice on 18.03.2010, under
Ex.A2, calling upon the appellant to get the sale transaction completed by
paying the balance sale consideration within a week. The appellant received
the said notice on 20.03.2010, however he has not chosen to issue any reply.
Hence, the respondent issued another notice on 09.11.2010, under Ex.A3,
calling upon the appellant to complete the sale transaction on or before
31.12.2010. In response to that notice, the appellant issued a reply calling
upon the respondent to be present at Sub Registrar Office on 15.12.2010 for
execution of sale deed. The said notice sent to the respondent and his
Counsel was returned with an endorsement 'unclaimed'. Thereafter, the
appellant issued another notice on 06.01.2011, under Ex.A7, calling upon the
respondent to be present at Sub Registrar Office on 19.01.2011 for
completion of sale transaction. The respondent sent a reply on 18.01.2011,
under Ex.A9, cancelling the sale agreement. Hence, the appellant was
constrained to file a suit for specific performance.
3. The respondent herein filed a written statement and resisted the suit
on the ground that the appellant was not ready and willing to perform his part
of the contract. The respondent also contended that there was an unregistered
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S.A(MD)No.601 of 2016
agreement between the parties on the very same date, on which, the suit sale
agreement was entered into whereunder, the appellant agreed to pay a sale
consideration of Rs.6,65,000/- to the respondent.
4. The trial Court, based on the evidence available on record, came to
the conclusion that the appellant failed to prove his readiness and willingness
to perform his part of the agreement and consequently, dismissed the suit.
Aggrieved by the same, the appellant/plaintiff filed an appeal in A.S.No.65 of
2014 on the file of the Subordinate Court, Sivagangai and the First Appellate
Court affirming with the findings of the trial Court, dismissed the said appeal.
Aggrieved by the same, the appellant is before this Court.
5. At the time of admission of the Second Appeal, the following
substantial questions of law were framed:
''(a) Have not the Courts below failed to see
that the plaintiff has been ready and willing as seen
from the fact that he had paid substantial sale
consideration on the date of agreement itself and
called upon the defendant to come and execute the
sale deed?
(b) Have not the Courts below failed to
exercise judicial discretion under Section 20 of the
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S.A(MD)No.601 of 2016
Specific Relief Act, which has resulted in perverse
findings?
(c) Have not the Courts below
overlooked that vide Ex.A3, the defendant had
extended the time up-to 31.12.2010 and therefore
the finding that the plaintiff was not ready prior to
that, is wrong?
6. The learned counsel for the appellant submitted that the time
stipulated in the agreement was not treated as essence of contract by the
parties and the same can be gathered from the facts found in the notice issued
by the respondent under Ex.A3, extending the time up to 31.12.2010. The
learned counsel further submitted that in response to the notice issued by the
respondent under Ex.A3, the appellant promptly issued a reply on 08.12.2010,
calling upon the respondent to come to Sub Registrar Office on 15.02.2010
for completion of sale transaction. However, the said reply notice sent by the
appellant to the respondent and his counsel got returned with an endorsement
'unclaimed'. Therefore, the appellant proved his readiness and willingness to
complete the transaction well within the time extended by the respondent and
consequently, the findings rendered by the Courts below, as if the appellant
failed to prove his readiness and willingness are vitiated by non consideration
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S.A(MD)No.601 of 2016
of material evidence available on records, namely, Exs.A4, A5 and A6.
7. The learned counsel for the respondent contended that though under
the agreement, a time limit was prescribed to complete the sale consideration,
due to the pending litigation, the parties were unable to complete the sale
consideration within the time stipulated. However, as soon as the pending
suit was disposed on 29.10.2009, the respondent issued a notice on
18.03.2010, calling upon the appellant to complete the sale transaction by
paying the balance sale consideration within one week. The appellant failed to
give reply for the said notice and kept quiet for 10 long months. Therefore,
the appellant failed to prove his readiness and willingness from the date of
agreement to the date of filing of the suit and consequently, the Courts below
are justified in dismissing the suit for specific performance.
8. The appellant and respondent entered into an agreement of sale on
21.11.2008. The agreed sale consideration was Rs.38,500/-. On the date of
agreement, as per the terms, the appellant paid an advance of Rs.30,000/- to
the respondent. The balance sum of Rs.8,500/- was agreed to be paid within a
period of one month. These all are admitted facts. Even in the plaint, it is
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S.A(MD)No.601 of 2016
also admitted by both parties, the property, agreed to be sold, was subject
matter of litigation in O.S.No.95 of 2009 on the file of the District Munsif
Court, Sivagangai and hence, the parties were not in a possession to follow
the time limit prescribed under the agreement. Even as per the admitted case
of the appellant in his plaint, the said suit was disposed of as earliest on
29.10.2009. After five months, the respondent issued a notice to the appellant
under Ex.A2, calling upon him to complete the sale transactions within a
period of one week. In the said notice, the respondent also said even though
O.S.No.95 of 2009 was disposed of as early on 29.10.2009, the appellant was
dragging on the sale transactions without paying the sale consideration. In the
said notice, the respondent also said, if appellant failed to pay the balance sale
consideration within a week and complete the sale consideration, the
agreement was liable to be cancelled. In spite of the notice issued by the
respondent calling the appellant to fulfil his obligation within a week, the
appellant failed to pay the balance sale consideration. He failed to respond to
the notice issued by the respondent, under Ex.A2 and simply kept quiet for
nearly nine months. Subsequently, on 09.11.2010 under Ex.A3, the
respondent issued another notice calling upon the appellant to complete the
sale transaction on or before 31.12.2010. The fact that the respondent
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S.A(MD)No.601 of 2016
extended the time up to 31.12.2010 only denotes that the time was not treated
as essence of the contract. However, as a plaintiff in a suit for specific
performance, the appellant has to prove his continuous readiness and
willingness from the date of inception of the contract to the date of filing of
the suit. In the case on hand, though the respondent issued a notice under
Ex.A2 on 18.03.2010, calling upon the appellant to complete the sale
consideration within a week, the appellant failed to respond his notice till
08.12.2010. The appellant has not given any justifiable explanation for his
failure to complete the sale transactions or his failure to reply to the notice
under Ex.A2. Therefore, the Courts below rightly came to the conclusion that
the appellant failed to prove his readiness and willingness from the date of
inception of the contract to the date of suit and consequently, he was not
entitled any decree for specific performance.
9. In view of the discussions made earlier, the questions of law framed
at the time of admission, are answered against the appellant and the Second
Appeal stands dismissed.
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S.A(MD)No.601 of 2016
10.In fine,
a) the Second Appeal stands dismissed and the judgment and decree
passed by the learned Subordinate Judge, Sivagangai, dated 07.03.2016
passed in A.S.No.65 of 2014 stands confirmed;
b) in the facts and circumstances of the case, there would be no order as
to costs; and
c) consequently connected Miscellaneous Petition is closed.
03.03.2023
NCC : Yes/No
Index : Yes / No
vsd
To
1.The Subordinate Court,
Sivagangai.
2.The District Munsif Court,
Sivagangai.
3.The Record Keeper,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.601 of 2016
S.SOUNTHAR, J.
vsd
S.A(MD)No.601 of 2016
and
C.M.P(MD)No.8877 of 2016
03.03.2023
https://www.mhc.tn.gov.in/judis
