Madras High Court
Mr.K.N.Rajaiyan (Died) vs U.M.Umapathi on 30 March, 2023
A.S. (MD) No.117 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.03.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S. (MD) No.117 of 2021
and
C.M.P. (MD) No.3468 of 2023
Mr.K.N.Rajaiyan (Died)
2.Vasantha
3.Vijayalakshmi
4.Indira Gandhi
5.Senthilkumar
6.Bhavani ... Appellants
Vs.
U.M.Umapathi
2.Shanthi
3.Punithavalli
4.K.Saravanan ... Respondents
(Appellants 2 to 6 and the respondents 2 to 4
are brought on record as legal heirs of the
deceased sole appellant vide Court Order
dated 26.03.2021)
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A.S. (MD) No.117 of 2021
PRAYER: Appeal Suit filed under Section 96 r/w Order 41 Rule 1 of the
Civil Procedure Code, 1908, to set aside the decree and judgment dated
23.11.2015 passed in O.S.No.37 of 2013 by the Principal District Judge,
Thanjavur and to dismiss the suit with costs.
For Appellants : Mr.P.Sesubalan Raja
For R1 : Mr.P.Vadivel
For R2 to R4 : Mr.A.Ramesh
JUDGMENT
This Appeal Suit has been preferred challenging the judgment
and decree of the learned Principal District Judge, Thanjavur, dated
23.11.2015 made in O.S.No.37 of 2013.
2. The defendant is the appellant in the above said appeal. The
respondent is the plaintiff.
3. The plaintiff filed a suit against the defendants in O.S.No.37 of
2013, on the file of the Principal District Court, Thanjavur for specific
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A.S. (MD) No.117 of 2021
performance and for an alternative relief of refund of the advance amount of
Rs.7,00,000/-. The trial Court allowed the main relief of specific
performance. Now, challenging the said judgment and decree, the
defendant has filed the present appeal before this Court.
4. The case of the plaintiff is that the defendant had agreed to sell
the suit property for a total sum of Rs.12,00,000/- and executed a sale
agreement on 29.08.2011. The defendant received a sum of Rs.7,00,000/-
as advance on three occasions from the plaintiff. The time fixed for the sale
agreement is 6 months, however, the time is not essence of the contract.
The plaintiff is all along ready and willing to perform his part of contract.
However, the defendant has evaded to execute the sale deed. Hence, the
plaintiff has issued a legal notice on 29.03.2013 calling upon the defendant
to perform his part of contract of the sale agreement. The defendant has
sent a reply notice on 10.04.2013 with false averments, therefore, the
plaintiff has filed a suit.
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A.S. (MD) No.117 of 2021
5. It is the contention of the defendant in the written statement
that the agreement was never intended to sell the property. The defendant's
son is doing Silk Saree business. The plaintiff is a money lender.
Therefore, the son of the defendant borrowed a sum of Rs.2 lakhs for his
sister's marriage. Due to that, an agreement came to be executed towards
loan transaction in favour of the plaintiff.
6. On the basis of the above pleadings, the learned trial Judge
framed the following issues for consideration:
“1) Whether the suit sale agreement entered between
the parties, as contended by the defendant?
2) Whether the defendant is the absolute owner of the
entire suit property?
3) Whether the plaintiff is entitled for the relief of
specific performance of contract, as prayed for?
4) Whether the plaintiff is entitled for the alternative
relief as prayed for?
5) What other reliefs, the plaintiff is entitled to?”
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7. Before the trial Court, on the side of the plaintiff, P.W.1 was
examined and Exs.A1 to A8 were marked. On the side of the defendant,
D.W.1 was examined and Ex.B1 & Ex.B2 were marked.
8. After analysing the oral and documentary evidence, the learned
trial Judge had decreed the suit as prayed for and directed to execute the
sale deed within one month.
9. The learned counsel appearing for the appellant would submit
that the plea of loan transaction, has been clearly established. The fact
remains that Ex.B1 clearly shows that the property has been mortgaged in
the year 1992 to a third party. The plaintiff and the defendant belongs to the
same community and doing the same business, entered into an agreement
with the existing mortgage. This itself clearly indicates that it is not a sale
agreement. At any event, time is the essence of the contract. The plaintiff
had never shown his readiness and willingness and in fact, the notice is
issued only for the first time on 29.03.2013 and the reply was given on
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A.S. (MD) No.117 of 2021
10.04.2013 which itself clearly shows that the plaintiff is not ready and
willing to perform his part of contract. Further, the evidence available on
record show the the Plaintiff was not capable of mobilizing the fund to pay
the remaining sale consideration. Therefore, without showing the readiness
and willingness on the part of the plaintiff, he is not entitled to the relief of
specific performance.
10. The learned counsel for the respondent would submit that
once the appellant has taken plea of loan transaction and the same is not
established since the agreement registered once, the trial Court has properly
analyzed the entire evidence and granted a decree.
11. The learned counsel appearing for the respondent would
submit that pursuant to the decree granted by the trial Court, remaining
amount was also deposited before the trial Court on 15.07.2016.
12. In the light of the above, the points that arose for
consideration are:-
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A.S. (MD) No.117 of 2021
(i)whether the agreement for sale is not intended for the sale of
suit property?
(ii) Whether the plaintiff has proved his readiness and willingness
to perform his part of contract, if so, whether he is entitled to the relief of
specific performance?.
13. On a perusal of Ex.A1 a registered sale agreement entered on
29.08.2011 between the plaintiff and the defendant for sale consideration of
Rs,12,00,000/- and Rs.7,00,000/- said to have been paid as advance and the
time has been stipulated to complete the sale within 6 months. As far as the
immovable property is concerned, though the time is not the essence of
contract, generally, the parties to contract still make the time as an essence
of contract to complete the transaction within stipulates time. Such
stipulates time agreed between parties cannot be ignored altogether. Terms
agreed between parties fixing the time limit is relevant to assess the
readiness and willingness on the part of the parties to contract.
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A.S. (MD) No.117 of 2021
14. Though the contention of the appellant is that there was a loan
transaction, Ex.A1 was never intended for the sale of property and such
contention has not been established by letting any evidence or bringing
probabilities on record.
15. Therefore, once the registered agreement placed on record, the
defendant without any evidence to show that there was other oral evidence
existing between the parties and the document was never intended for sale,
the defendant cannot succeed in proving his contention.
16. Be that as it may, merely because the stand of the defendant
has not been established that will not absolve the plaintiff from proving
readiness and willingness in seeking equitable relief of specific
performance. Having paid a sum of Rs.7,00,000/- as advance on the
agreement date. Plaintiff has not taken any active steps to prove his
readiness and willingness within the period of six months agreed in the
agreement. The evidence of P.W.1 show that he never shown his readiness
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A.S. (MD) No.117 of 2021
and willingness from the inception of the contract. Having agreed to
complete the sale within a period of 6 months, for the first time, the
plaintiff has issued a legal notice Ex.A2 on 29.03.2003 and thereafter had
filed the suit. Even during the pendency of the suit, he has not shown his
readiness and willingness to pay balance sale consideration. If really the
plaintiff intended to purchase the property he would have taken some steps
to pay the balance sale consideration. Further, to show that he has ready
cash or capacity to mobilize the balance sale consideration, no documents
or evidence placed on record. Therefore, in the absence of evidence to
show that he had the capacity to mobilise the funds, the equitable relief
cannot be granted mechanically, unless readiness and willingness is
established on record. It is further to be noted that the plaintiff has sought
to explain the delay in filing the suit, only for the first time in the cross-
examination taking advantage of the fact that same bravement happened in
the defendant family. This fact was never whispered in his pleadings and
also in the legal notice. Therefore, the plaintiff attempt to explain the delay
for the first time during trial will not prove readiness and willingness.
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17. It yet another fact cannot be altogether, though the suit was
decreed on 23.11.2015 and one month time is granted to complete the same.
The remaining sale consideration was not paid within a month and the said
amount has been deposited only on 15.07.2016 with an inordinate delay and
no permission whatsoever has been obtained from the Court for the
extension of the period to deposit the remaining sale consideration.
18. The amount has not been deposited as ordered by the Court,
such situation even lead to recind the contract at the instance of the party
under Section 28 of the Specific Relief Act.
19. Such being the position, the plaintiff merely on the basis of
the registered document having slept over for years together without making
any efforts to find the nature of the property or at least to verity the extent of
the property cannot now contend that he was ready and willing to purchase
the property. No steps whatever taken by the plaintiff to identify or
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demarcate the suit property. All these conduct of the plaintiff clearly show
that he never ready and willing to perform his part of contract.
20. Accordingly, this Court is of the view that the property sought
to be sold is only a residential house and the appellant along with family
members residing there and the evidence of the P.W.1 and the partition deed
Ex.P4 show that the ancestral property others also has share and if the
specific performance is granted it will also cause undue hardship again the
other legal heirs, who are entitled in the property.
21. Such view of the matter, this Court is of the view that if the
specific performance is granted, it will cause undue hardship to the other
legal heirs also.
22. In such view of the matter, granting specific performance in
this case is not proper. However, taking note of the fact that alternative
relief of refund of advance amount of Rs.7,00,000/- is also prayed. The
plaintiff is entitled for refund of the advance amount with interest at the
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rate of 9% from the date of agreement till the date of realization.
23. It is stated by the learned counsel for the respondent that he
has already deposited the remaining sale consideration before the trial
Court, he may be permitted to withdraw that amount. The respondent may
withdraw that amount from the trial Court by filing proper application.
24. In the result, the Appeal is partly allowed and the decree and
judgment of the trial Court granting the relief of specific performance is set
aside and the suit is decreed for alternative relief for refund of advance
amount of Rs.7 lakhs with interest at the rate of 9% from the date of
agreement till the date of realisation. No costs. Consequently, connected
miscellaneous petition is closed.
30.03.2023
Index : Yes / No
Speaking Order : Yes / No
am
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A.S. (MD) No.117 of 2021
To
1.The Principal District Judge,
Thanjavur.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S. (MD) No.117 of 2021
N.SATHISH KUMAR, J.
am
A.S. (MD) No.117 of 2021
30.03.2023
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