Madras High Court

Lakshmi vs Kannan on 27 November, 2023

                                                                               SA.No.1329 of 2007



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 27.11.2023

                                                      CORAM

                                    THE HON'BLE Mr.JUSTICE C.KUMARAPPAN

                                                S.A.No.1329 of 2007
                                                        and
                                                 M.P.No.1 of 2007


                  Lakshmi                                                   ... Appellant

                                                        - Vs -

                  Kannan                                                    ... Respondent

                            Second Appeal is filed under Section 100 of the Civil Procedure Code
                  against the Judgment and decree dated 10.01.2007 made in A.S.No.193 of
                  2006 on the file of the Principal District Court, Salem-reversing the Judgment
                  and decree dated 10.10.2005 made in O.S.No.1839 of 2004 on the file of II
                  Additional District Munsif Court, Salem.




                                   For Appellant    : Mr. T. Murugamanikkam ( Senior counsel)
                                   For Respondent   : No appearance




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                  1/11
                                                                                     SA.No.1329 of 2007




                                                      JUDGMENT

The instant second appeal has been filed at the instance of the plaintiff'.

2. According to the plaintiff she entered into a sale agreement with the

defendant on 27.05.1992, agreeing to purchase the suit property for a total

sale consideration of Rs.50,000/-. In pursuance of the said agreement an

advance of Rs.30,000/- was paid, and the balance of Rs.20,000/- was agreed

to be paid after the respondent discharge the mortgage of the suit property

with Salem, Central Co-operative Bank. This plaintiff submits that, he has

been ready and willing to perform his part of contract. However, the

defendant failed to discharge the mortgage debt. Hence, he issued a notice

dated 22.05.1995 to the defendant expressing the plaintiff's readiness and

willingness to perform her part of contract. Hence, the plaintiff prayed the

relief of specific performance.

3. The said suit was resisted by the defendant by contending that the

suit agreement was executed as a security for a loan of Rs.23,000/- borrowed

from the plaintiff. Hence, prays to dismiss the suit.

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4. Before the Trial Court two witnessess were examined as P.W.1 and

P.W.2. On behalf of the defendant four witnesses were examined as D.W.1

to D.W.4. On behalf of the plaintiff six documents have been marked as

Ex.A1 to A6. On behalf of the defendant two documents have been marked

as Ex.B1 and B.2

5. The Trial Court after gone into various aspects has ultimately found

that the Ex.A1/Sale Agreement is a registered one and therefore, it is genuine.

It was also further found that the defendant failed to prove his case of loan

transaction and has ultimately decreed the suit. Aggrieved with the same

when the defendant preferred an appeal, the First Appellate Court though

held that Ex.A1/Sale Agreement was duly executed by the defendant, have

found the plaintiff has not proved the readiness and willingness as there was

long delay in issuance of notice as well as filing of the suit. Thus, in view of

the such long delay there is a possibility of price raise and ultimately declined

to exercise the discretion to grant specific performance. However, granted the

alternate relief of refund of advance. Aggrieved with the same the plaintiff is

before this Court by way of this second appeal.

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6. While admitting this second appeal this Court has framed following

substantial questions of law:

(1) When the trial Court has not framed any issue whether the plaintiff was ready and willing to perform her part of the contract, since, the parties went to trial on the question whether the suit agreement was only a security for a loan, then whether the appellate Court can raise a point for consideration on this issue in appeal?

(2) Whether the relief of specific performance can be denied by the appellate Court on the ground of a rise in price of the property on the date of decree of the trial Court?

7. The learned senior counsel appearing on behalf of the appellant

would vehemently contend that when there is a specific finding that the

Ex.A1/Sale Agreement is true and valid, then the Court below is bound to

enforce the same. The learned counsel would also further contend that when

there is no specific issue as to the readiness and willingness, then the First

Appellate Court cannot render any new finding on the absence of readiness

and willingness. It is also the further submissions of the learned senior

counsel that when the defendant did not raise any pleading as to the price

raise, the finding of price raise recorded by the First Appellate Court for

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rejecting the specific performance is contrary to the settled principles of law.

8. There is no representation on behalf of the respondents.

9. I have given my anxious consideration upon the submission made by

the learned Senior Counsel for the appellant.

10. The learned senior counsel by relying upon the Judgment of this

Court reported in 2005(1) Law Weekly 472 in the case of Murugesa

Naicker and 3 others Vs. Govindaraja Nattar and another in S.A.No.107

of 1994, reported in 2002-1 CTC 334 in the case of V. Udayakumar and

others Vs. Navaneethammal and 5 others in L.P.A.No.206 of 2001 would

contend that when there is no issue for readiness and willingness, the Court

cannot render any finding on this aspect. In this regard the learned Senior

Counsel would submit that here the case put fourth by the defendant is on a

loan transaction. Therefore, when the loan transaction is not established

naturally the suit for specific performance is to be decreed.

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11. But, this Court while looking at the plaint there was a long delay in

filing the suit for specific performance. According to the plaintiff's case suit

agreement was dated 27.05.1992 and the time for performance has been

fixed as 3 years. Therefore, according to the plaint averment, the last date for

performance of the sale agreement was 26.05.1995. Inspite of such facts

and having long duration of three years for performance, the plaintiff has

issued notice calling upon the defendant to execute the sale deed only on

22.05.1995 almost on the verge of the third year.

12. Though the plaint contains the averments in respect of the ready

and willingness, the readiness and willingness could also been inferred

through the conduct of the parties. Here the conduct of the plaintiff would go

counter to his case put forth in the plaint. Though he has been contending

that he was ready and willing, the long absence of issuing pre-suit notice that

too at the verge of three years period, and filing the suit in the year 1997

namely almost 20 months from the date of last date of performance period

would indicate the absence of readiness and willingness of the plaintiff.

13. The First Appellate Court has elaborately gone into all these

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aspects. At this juncture the learned senior counsel would submit that the

defendant agreed to discharge the loan with the Salem, Central Co-operative

Bank, whereas, they failed to discharge the said loan. Therefore, the delay

cannot be found fault against the plaintiff. But, this Court is not in a position

to accept the submissions made by the learned senior counsel in view of the

ruling reported in (2010) 10 Supreme Court cases 512 in the case of Man

Kaur(Dead) by Lrs Vs Hartar Singh Sangha and the relevant portion is

extracted hereunder:

“40. 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

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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 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 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.10,00,000/- and earnest money of Rs.1,00,000/- was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15,00,000/-. 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.9,00,000/- ( and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be https://www.mhc.tn.gov.in/judis

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.”

14.Therefore, even assuming that the defendant has committed a

breach, when the plaintiff failed to prove that she was always ready and

wiling to perform the essential terms of the contract, there cannot be a relief

for specific performance in her favour. The learned Senior Counsel would

also submit that the denial of specific performance on the ground of price

raise is contrary to the ruling reported in (2012) 5 Supreme Court Cases 712

in the case of Narinderjit Singh Vs North Star Estate Promoters Limited

in Civil appeals No.4307 of 2012 with 4306 of 2012.

15. The First Appellate Court has taken cognizance of the long delay

caused by the plaintiff. At the first instance in issuing notice and in second

instance in filing the suit. Only in that context the First Appellate Court by

relying the Supreme Court Judgment reported in (1997) 3 SCC 1 in the case