Madras High Court
R.Kandasamy vs S.Janaki on 17 April, 2024
S.A.(MD)No.338 of 2011
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 17.04.2024
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.(MD)No.338 of 2011
M.P.(MD)No.1 of 2011
R.Kandasamy ... Appellant
Vs
S.Janaki ... Respondent
PRAYER: Second Appeal filed under Section 100 of C.P.C. against the
judgment and decree passed in A.S.No.41 of 2009, dated 14.12.2010 on
the file of the District Court, Karur reversing the judgment and decree
dated 02.09.2009 passed in O.S.No.92 of 2005 on the file of the
Additional Subordinate Court, Karur.
For Appellant : Mr.V.Meenakshisundaram
for Mr.N.Nallathambi
For Respondent : Mr.K.Govindarajan
JUDGMENT
The defendant in a suit for specific performance is the appellant.
The suit was dismissed by the trial Court and on an appeal filed by the
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respondent / plaintiff, the appeal was allowed and the suit was decreed.
Aggrieved by the same, the defendant has come by way of this second
appeal.
2. According to the respondent / plaintiff, she entered into a sale
agreement with the appellant on 01.09.2003, agreed to purchase the
agreement mentioned property for a sale consideration at the rate of
Rs.51.00 per sq.ft. The extent of the agreement mentioned property is
3,000 sq.ft. Therefore, the agreed consideration was Rs.1,53,000/-
(Rupees One Lakh and Fifty Three Thousand only). As per the terms of
the agreement, on the very date, an advance of Rs.50,000/- (Rupees Fifty
Thousand only) was paid by the respondent. The time limit for
completion of the sale transaction was fixed as 30.09.2003. Thereafter,
the same was extended by making an endorsement in the agreement on
29.09.2003, by paying another sum of Rs.50,000/- to the appellant. As
per the endorsement, time for completion of sale transaction was
extended upto 28.11.2003. it was claimed by the respondent that in spite
of repeated request, the appellant failed to complete his part of obligation
under the agreement and hence, a pre-suit notice was issued on
23.03.2005, calling upon the appellant to complete the sale transaction
by producing all the relevant documents. The appellant came up with a
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reply containing false averments. Therefore, the respondent was
constrained to file a suit for specific performance.
3. The appellant filed a written statement denying the allegations
in the plaint regarding readiness and willingness of the respondent to
complete the sale transaction as per the terms of the agreement. It was
also averred by the appellant that the respondent had verified all the
records produced by the appellant and only after satisfaction of
appellant's rights over the suit property, the agreement was entered into.
The appellant also claimed that on 19.12.2003 itself, he obtained No
Objection Certificate from local authority and thereafter, on several
occasions, he requested the respondent to complete the sale transaction.
However, the respondent failed to complete the sale transaction by
performing her part of the contract. It was also claimed by the appellant
that all the original title deeds, patta and other revenue documents were
handed over to the respondent, even on the date of execution of sale
agreement itself. On these pleadings, the appellant sought for dismissal
of the suit.
4. Before the trial Court, the respondent was examined as P.W.1
and 4 documents were marked on her side as Ex.A1 to Ex.A4. The
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appellant was examined as D.W.1 and the Junior Assistant of local
authority was examined as D.W.2. Three documents were marked on the
side of the appellant as Ex.B1 to Ex.B3. Further, four documents were
marked through D.W.2 as Ex.X1 to X4.
5. The trial Court, on consideration of evidence available on record
came to the conclusion that the respondent is not entitled to the specific
performance of the agreement and dismissed the suit. Aggrieved by the
same, the respondent preferred an appeal in A.S.No.41 of 2009 on the
file of District Court, Karur. The First Appellate Court reversed the
findings of the trial Court and decreed the suit. Aggrieved by the said
reversal finding, the defendant has come by way of this second appeal.
6. At the time of admission, this Court has formulated the
following substantial questions of law, by an order dated 05.04.2024:
“(a)Whether the first Appellate Court is correct in
decreeing the suit for specific performance by exercising the its
discretionary power without considering the fact that the plaintiff
shall perform his part of contract in a reasonable time having
regard to the terms of the contract prescribing a time limit for
completion of the contract even though time is not the essence of
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the contract of sale of immovable property and the suit is filed
within the period of limitation of three years?
(b)Whether the finding of the lower appellate Court that
the respondent/plaintiff proved his readiness and willingness to
perform his part of the contract is vitiated by non-consideration
of material evidence available on record?”
7. Elaborating the substantial questions of law, the learned counsel
appearing for the appellant submitted that as per the endorsement in the
suit sale agreement, the time for performance expired on 28.11.2003 and
the appellant also made ready the No Objection Certificate from the local
authority as early as on 19.12.2003. However, the respondent issued the
first pre-suit notice only on 23.03.2005. The learned counsel submitted
that absolutely there is no explanation on the part of the respondent to
explain the long delay of nearly 16 months in issuing pre-suit notice.
Therefore, the learned counsel submitted that the respondent failed to
prove his readiness and willingness to perform her part of the contract
and the finding reached by the first appellate Court as if the respondent
proved her readiness and willingness is vitiated by non consideration of
evidence available on record. In support of his contention, the learned
counsel relied on the judgment of this Court in Prabakaran Vs. Geetha
reported in 2022 (3) CTC 650.
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8. Per contra, the learned counsel appearing for the respondent
submitted that even as per the averment found in the reply notice of the
appellant, he has to produce the No Objection Certificate from the local
authority for registration of agreement mentioned property as a house
site. The appellant failed to produce the No Objection Certificate from
the concerned local authority within the time allowed by the agreement.
Therefore, there is some delay in getting the sale transaction completed.
The delay is attributable to the omission of the appellant and therefore,
the same cannot be put against the respondent. The learned counsel
submitted that out of sale consideration of Rs.1,53,000/- (Rupees One
Lakh and Fifty Three Thousand only) the respondent paid substantial
amount of Rs.1,00,000/- (Rupees One Lakh only) and therefore, the
readiness and willingness of respondent cannot be doubted. In support
of his contention, the learned counsel relied on the following judgments:
1.S.Brahmanand and others Vs. K.R.Muthugopal and others
reported in AIR 2006 SCC 40; and
2.P.Daivasigamani Vs. S.Sambandan reported in (2022) 14 SCC
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Answer to substantial questions of law “a and b”:
9. As per the terms of the agreement, the total sale consideration
was fixed as Rs.1,53,000/- (Rupees One Lakh and Fifty Three Thousand
only) and on the date of the agreement, an advance of Rs.50,000/-
(Rupees Fifty Thousand only) was paid by the respondent. Thereafter, on
29.09.2003, the respondent paid a further sum of Rs.50,000/- (Rupees
Fifty Thousand only) and got the time extended till 28.11.2003.
Therefore, the time limit fixed, as per the endorsement in the suit sale
agreement, expired as early as on 28.11.2003. However, the pre-suit
notice was issued by the respondent only on 23.03.2005, after a delay of
nearly 16 months. In order to explain the delay in issuing pre-suit notice,
the learned counsel for the respondent submitted that the appellant
agreed to produce No Objection Certificate from the local authority for
the purpose of registering the agreement mentioned property as a house
site. The learned counsel by taking this Court to Ex.B2 submitted that
the said No Objection Certificate was made ready by the appellant only
on 19.12.2003. Even if there is a failure on the part of the appellant in
producing the No Objection Certificate, as a prudent person, who paid
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nearly 2/3rd of the sale consideration, the respondent should have issued
pre-suit notice immediately after expiry of time fixed, calling upon the
appellant to produce No Objection Certificate. However, she waited for
nearly 16 months and then issued pre-suit notice expressing her
willingness to complete the sale transaction. Further, as per Ex.B2, the
appellant obtained No Objection Certificate from the local authority as
early as on 19.12.2003. Therefore, it is clear that absolutely there is no
reason for the respondent to wait beyond the date of Ex.B2. Though the
learned counsel for the respondent submitted that the appellant failed to
intimate the fact of obtaining No Objection Certificate from the local
authority, in the absence of any notice issued by the respondent calling
upon the appellant to produce No Objection Certificate, the failure of the
appellant to intimate the respondent in writing, regarding the fact of
obtaining No Objection Certificate from the local authority, cannot be put
against the appellant.
10. In P.Daivasigamani Vs. S.Sambandan reported in (2022) 14
SCC 793, relied on by the learned counsel for the respondent, it was held
by the Hon'ble Apex Court that delay in issuing notice is only a factor in
exercising discretion under Section 20 of Specific Relief Act. In that
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case, the pre-suit notice was issued by the plaintiff well within the period
stipulated under the agreement. However, in the case on hand, the pre-
suit notice calling upon the defendant to perform his part of the
agreement was issued by the plaintiff nearly after 16 months from the
date of expiry of the extended time under the agreement. Therefore, the
facts of the present case is entirely different from the facts of the case in
Daivasigamani's case. Therefore, the said case law is not applicable to
the present case.
11. The learned counsel for the respondent by relying on the
judgment of the Hon'ble Apex Court in S.Brahmanand and others Vs.
K.R.Muthugopal and others reported in AIR 2006 SCC 40 submitted
that an agreement to extend time need not be necessarily reduced into
writing in all the cases and it could be inferred from the conduct of the
parties. As far as the present case is concerned, originally as per the
terms of the agreement, time was fixed as 1 month and the said period
expired on 30.09.2003. Even before the expiry of that period, on
29.09.2003, the respondent paid another sum of Rs.50,000/- (Rupees
Fifty Thousand only) and got time extended by another two months and
the said period expired on 28.11.2003. The fact that time was extended
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by parties even before the expiry of the original time would indicate that
the parties treated the time as essence of the contract. That is the reason
why, even before the expiry of the original time, the respondent/plaintiff
paid a further sum of Rs.50,000/- (Rupees Fifty Thousand only) and got
the time extended by two more months. In such circumstances, within a
reasonable time, after expiry of the extended time, the plaintiff should
have issued pre-suit notice calling upon the defendant to perform his part
of the contract if any. However, for the reasons best known to her, the
respondent / plaintiff waited for nearly 16 months and leisurely issued
pre-suit notice only on 23.03.2005. Therefore, the findings rendered by
the first appellate Court as if the respondent proved his readiness and
willingness to perform his part of the part of the contract is not
acceptable to this Court. The said finding reached by the first appellate
Court is vitiated by non consideration of evidence available on record.
12. Therefore, the substantial questions of law “a” and “b” are
answered in favour of the appellant and as a necessary consequence, the
second appeal is allowed. The judgment and decree passed by the first
appellate Court is set aside and the decree passed by the trial Court gets
restored. There shall be no order as to costs. Consequently, connected
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miscellaneous petition is closed.
17.04.2024
NCC : Yes
Index : Yes
vsm
To
1.The District Court, Karur.
2.The Additional Subordinate Court, Karur.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SOUNTHAR, J.
vsm
https://www.mhc.tn.gov.in/judis
17.04.2024
https://www.mhc.tn.gov.in/judis
