Madras High Court
T.Janagan vs S.Kamalakannan on 4 June, 2024
Author: R.Subramanian
Bench: R.Subramanian
A.S.No.691 of 2017
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.06.2024
CORAM:
THE HONOURABLE MR JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR JUSTICE R.SAKTHIVEL
A.S.No.691 of 2017
T.Janagan ...Appellant
Vs.
S.Kamalakannan ...Respondent
Prayer: Appeal filed under Section 96 of the Code of Civil Procedure, to set
aside the judgment and decree dated 20.09.2017 in O.S.No.21 of 2016 on
the file of the II Additional District and Sessions Court, Vellore at Ranipet
and thereby decree the said suit.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.V.Raghavachari, Senior Counsel
for M/s.V.Srimathi
*******
1/16
https://www.mhc.tn.gov.in/judis
A.S.No.691 of 2017
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
The unsuccessful plaintiff in the suit for specific performance in
O.S.No.21 of 2016 is on appeal.
2. According to the plaintiff, the defendant agreed to sell an extent of
9272 Sq.ft. of land at Rs.1,100/- per Sq.ft. and an agreement of sale was
entered into on 02.06.2009. On the date of the said agreement the plaintiff
paid an advance of Rs.10,00,000/- and a years time was fixed for completion
of the sale. It is the claim of the plaintiff that though the period is fixed for
performance under the agreement, it was not the intention of the parties to
make time the essence of the contract. It is also claimed that the plaintiff has
been paying the sale price in parts and in all, he has paid a total sum of
Rs.26,83,600/- between 13.07.2009 and 25.06.2010. In proof of the said
payments, the plaintiff would rely upon his own accounts book marked as
Ex.A2. Claiming that there is a balance of Rs.65,15,600/-, the plaintiff
issued a notice seeking execution of the sale deed on 15.05.2012. The
defendant issued a reply on 20.05.2012 claiming that the agreement is
https://www.mhc.tn.gov.in/judis
unrealistic and the plaintiff was not ready and willing to perform his part of
the contract. The receipt of the sum of Rs.26,83,600/- was specifically
denied. On receipt of the reply, the plaintiff launched a suit on 03.06.2013
seeking specific performance.
3. The defendant resisted the suit contending that the plaintiff was a
lessee in the suit property under the lease agreement dated 13.11.1997. It is
also claimed that the plaintiff has defaulted in payment of rents and a
proceeding under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent
Control) Act was initiated seeking deposit of rents. A suit has also been filed
in O.S.No.69 of 2010 for an injunction restraining the defendant from
evicting the plaintiff except under due process of law. It was claimed that
because of the aforesaid litigation, the agreement became unrealistic and
unenforceable. It was also contended that the plaintiff was never ready and
willing to perform his part of the contract.
4. On the above pleadings the learned trial Judge framed the following
issues:-
https://www.mhc.tn.gov.in/judis
1. Whether the plaintiff is entitled to a decree of
Specific Performance of contract as against the defendant?
2. Whether the suit agreement is an abandoned
unrealistic agreement?
3. Whether the suit is barred by Limitation?
4. To what other relief the plaintiff is entitled?
5. At trial the plaintiff was examined as PW1 and two other witnesses
were examined as PW2 and PW3. The defendant was examined as DW1.
While Exs.A1 to A13 were marked on the side of the plaintiff, Exs.B1 to B7
were marked on the side of the defendant.
6. On a consideration of the evidence on record, the learned trial
Judge concluded on issue No.2 that the agreement is true and valid. The
learned trial Judge however concluded that the plaintiff has not proved
payment of the sum of Rs.26,83,600/- as alleged by him. Ex.A2 statement
of accounts was disbelieved by the trial Court. The learned trial Judge found
that the plaintiff has not come to Court with clean hands and therefore he is
not entitled to the discretionary relief of specific performance. The learned
https://www.mhc.tn.gov.in/judis
Judge also found that the plaintiff was not ready and willing to perform his
part of the contract. Since the notice was issued almost after two years from
the date fixed for performance and the suit was filed a year thereafter. On
the above findings, the learned trial Judge dismissed the suit.
7. We have heard Mr.N.Manokaran, learned counsel appearing for the
appellant and Mr.V.Raghavacahri, learned Senior Counsel appearing for the
respondent.
8. Mr.N.Manokaran, learned counsel appearing for the appellant
would vehemently contend that some of the payments made under Ex.A2
have been admitted by the defendant as DW1. The learned counsel would
draw our attention to the evidence of DW1 in cross-examination to contend
that the payments have been admitted. The learned counsel would also
contend that there was an attempt of panchayat and hence there was a delay
in sending the notice. He would point out that notice demanding
performance having been sent within 3 years and suit filed within 2 years,
the plaintiff cannot be non-suited on the ground of latches or absence of
https://www.mhc.tn.gov.in/judis
readiness and willingness. The learned counsel would also fault the trial
Court for having disbelieved Ex.A2.
9. Contending contra, Mr.V.Raghavachari, learned Senior Counsel
appearing for the respondent would submit that the evidence in cross-
examination cannot be read as suggested by the learned counsel for the
appellant. He would submit that a reading of the evidence would show that
the suggestion as a whole has been denied and there is no admission of the
receipt of money by DW1. It is also pointed out that there is a huge delay in
issuance of notice. The agreement fixes 1 year time for performance. The
learned Senior Counsel would point out that the 1 year time expired on
02.06.2010 and notice demanding performance was issued only on
15.05.2012, that too, with a false claim that a sum of Rs.36,83,600/- had
already been paid.
10. The learned Senior Counsel would also submit that the specific
performance being a discretionary relief cannot be granted if it is found that
the plaintiff has approached the Court with unclean hands or a false case on
https://www.mhc.tn.gov.in/judis
material aspect viz., the consideration, which would affect the relief of
specific performance. The learned Senior Counsel would also point out that
the notice itself was issued after the suit for injunction in O.S.No.69 of 2010
was filed. According to the learned Senior Counsel, this fact would also
indicate that the plaintiff was not ready and willing to perform his part of the
contract.
11. We have considered the rival submissions.
12. On the rival contentions, the only question that is to be addressed
is, as to, whether the plaintiff has demonstrated readiness and willingness to
perform his part of the contract as required under Section 16(c) of the
Specific Relief Act.
13. As regards the first contention of the learned counsel for the
appellant on the oral evidence of DW1, we are unable to agree with the
contention of the learned counsel. Though a cursory reading of the evidence
appears that his contention is plausible, the statements made soon after the
https://www.mhc.tn.gov.in/judis
suggestions would nullify the effect of the so called admission. The evidence
that is relied upon by the learned counsel reads as follows:-
13/07/09 vd; je;ijf;fhf thjpaplk; U/:5 yl;rk;
bgw;Wbfhz;nld; Mdhy; me;j gzj;ij vd; je;ijaplk;
bfhLf;ftpy;iybad;why; rhpay;y/ 15/7/09y; kPz;Lk; thjpaplk; U:/5
yl;rk; bgw;Wf;bfhz;L mij vd; jhahUf;F bfhLg;gjhf brhy;yp
thjpaplk; th';fpndd; mij vd; jhahUf;F bfhLf;ftpy;iy
vd;why; rhpay;y/ ehd; th';ft[k; ,y;iy bfhLf;ft[k; ,y;iy/
20/7/09 thjpaplk; U:/5 yl;rk; bgw;W bfhz;L vd; jk;gpff; hf th';fp
mij th';ft[k; ,y;iy bfhLf;ft[k; ,y;iybad;why; rhpay;y/ mnj
khjphp gy njjpfspy; bkhj;jkhf U:/26.83.600 thjpaplk; bgw;W
bfhz;nld; vd;why; rhpay;y/
14. A conjoint reading of the entire evidence extracted above would
show that DW1 has denied the receipt of the money as well as the person for
whom it was received. Therefore, we are unable to agree with the learned
counsel for the appellant that there is an admission of the receipt of the
money as evidenced by Ex.A2. Ex.A2 is a sheet of paper written by the
plaintiff and signed by him. There is no acknowledgement by the defendant
and in the absence of any other supporting evidence to demonstrate that the
monies were paid as evidenced by Ex.A2, we are unable to accept Ex.A2 as
https://www.mhc.tn.gov.in/judis
proof of payment.
15. On the question of readiness and willingness Mr.N.Manokaran,
learned counsel would seek to rely upon the judgment of the Hon'ble
Supreme Court in Ferrodous Estate (Pvt.) Ltd., Vs. P.Gopirathnam (Dead)
and others reported in (2020) 13 SCR 673, wherein the Hon'ble Supreme
Court after considering the earlier judgments in K.S.Vidyanadam Vs.
Vairavan reported in (1997) 3 SCC 1, Saradamani Kandappan Vs.
S.Rajalakshmi reported in (2011) 12 SCC 18 and Smt. Chand Rani (dead)
by L.Rs. v. Smt. Kamal Rani (dead) by L.Rs. Reported in (1993) 1 SCC 519
and extracting the principles laid down in K.S.Vidyanadam Vs. Vairavan
reported in (1997) 3 SCC 1, which reads as follows:-
(i) The courts, while exercising discretion in suits for
specific performance, should bear in mind that when the
parties prescribe a time/ period, for taking certain steps or
for completion of the transaction, that must have some
significance and therefore time/ period prescribed cannot
be ignored.
(ii) The courts will apply greater scrutiny and
strictness when considering whether the purchaser was
https://www.mhc.tn.gov.in/judis
“ready and willing” to perform his part of the contract.
(iii) Every suit for specific performance need not be
decreed merely because it is filed within the period of
limitation by ignoring the time limits stipulated in the
agreement. The courts will also “frown” upon suits which
are not filed immediately after the breach/ refusal. The fact
that limitation is three years does not mean that a
purchaser can wait for 1 or 2 years to file a suit and obtain
specific performance. The three-year period is intended to
assist the purchasers in specific cases, paid to the vendor
and possession has been delivered in part-performance,
where equity shifts in favour of the purchaser.
observed as follows:-
31. The resultant position in law is that a suit for
specific performance filed within limitation cannot be
dismissed on the sole ground of delay or laches. However,
an exception to this Rule is where immovable property is to
be sold within a certain period, time being of the essence,
and it is found that owing to some default on the part of
the plaintiff, the sale could not take place within the
stipulated time. Once a suit for specific performance has
been filed, any delay as a result of the court process
cannot be put against the plaintiff as a matter of law in
https://www.mhc.tn.gov.in/judis
decreeing specific performance. However, it is within the
discretion of the Court, regard being had to the facts of
each case, as to whether some additional amount ought or
ought not to be paid by the plaintiff once a decree of
specific performance is passed in its favour, even at the
appellate stage.
16. Applying the said judgment, we find that the plaintiff in the case
on hand, on the evidence that is available on record, has miserably failed to
prove the readiness and willingness. It is the admitted case of the parties
that the agreement fixes a period of 1 year. The balance of consideration
payable is nearly Rs.91,99,200/-. The plaintiff has not established that he
had made any attempt prior to 15.05.2012 to seek performance. Though the
time fixed under the agreement expired on02-06-2010 the plaintiff issued
notice seeking performance only on 15.05.2012 and the suit has been filed
almost a year after the reply notice was sent by the defendant. No doubt, the
very delay in filing the suit will not amount to laches on the part of the
plaintiff, if it is filed within the 3 years period, but, the delay in demanding
performance would definitely demonstrate the absence of the readiness and
willingness.
https://www.mhc.tn.gov.in/judis
17. In the case on hand, the period fixed expired on 02.06.2010.
Notice demanding performance was issued on 15.05.2012, almost a year
and 11 months thereafter. Therefore, even if we are to consider the claim of
the plaintiff very liberally, we are unable to persuade ourself to conclude that
the plaintiff was ready and willing to perform his part of the contract. We are
unable to overturn the conclusion of the trial Court that the plaintiff has not
come with clean hands, when he has claimed that he has paid a sum of
Rs.26,88,600/- between the date of the agreement and 25.06.2010. The
payment of Rs.10,00,000/- on the date of the agreement is evidenced by a
written contract and though the defendant would make a feeble attempt to
deny receipt of the said advance, he is precluded from letting in evidence as
against the recitals in the written contract. Therefore, while rejecting the
claim of the defendant that no advance is paid we uphold the conclusion of
the trial Court regarding the payment of Rs.26,83,600/- between 13.07.2009
and 25.06.2010 under various heads.
https://www.mhc.tn.gov.in/judis
18. Specific performance being a discretionary relief a person seeking
the said relief is expected to come to Court with clean hands. The trial Court
has specifically found that the plaintiff has not come to Court with clean
hands and has made a false claim in respect of very material aspect viz.,
consideration. Therefore, he is dis-entitled to get the relief of specific
performance. We confirm the said finding of the trial Court. In fine, we
conclude that the plaintiff is not entitled to specific performance.
19. Pending appeal the plaintiff had filed an application seeking
amendment of the plaint and has been successful in getting the relief of
refund of advance included. Though Mr.V.Raghavacahari, learned Senior
Counsel appearing for the respondent would contend that the advance was
not at all paid, we have already concluded that he is dis-entitled to let in
evidence or make a plea contrary to the recitals in the written instrument
viz., Ex.A1 agreement and therefore we cannot accept the said contention or
evidence which attempts to establish that no consideration was paid contrary
to the recitals in the written agreement, more so, when the execution of the
written agreement is admitted. Therefore, we are convinced that the
https://www.mhc.tn.gov.in/judis
plaintiff would be entitled to a decree for return of a sum of Rs.10,00,000/-
paid as advance on the date of the agreement with interest at 9% from the
date of the suit till today and at 6% from today till payment. No doubt, the
relief of refund of advance was added only pending appeal, however the
defendant has had the advantage of money, hence he is liable to pay interest
from the date of suit.
20. Mr.V.Raghavachari, learned Senior counsel has pointed out that
the defendant had already instituted a suit for arrears of rent in O.S.No.2 of
2021 seeking recovery of a sum of Rs.4,38,500/- as damages for non-
payment of rents at Rs.10,500/- per month and Rs.50,000/- for damages to
the goods and the plaintiff is in arrears of rent from October 2020 which
would amount to more than Rs.8,00,000/- and he is entitled to set off the
amount paid as advance towards the said rent.
21. We do not think we can pronounce upon the controversy relating
to payment or non-payment of rent, since it is the subject matter of different
proceeding. All that we can observe is that if the defendant succeeds in the
https://www.mhc.tn.gov.in/judis
suit for recovery of arrears of rent, he will be entitled to set off against the
decree for repayment of advance granted by us in this appeal. It is also
found from the records that the plaintiff has deposited a sum of
Rs.65,15,600/- to the credit of the suit on 16.09.2016. Since, now we have
refused the relief of specific performance, it will be open to him to withdraw
the monies from the Court.
22. Accordingly, the appeal is allowed in part. There will be a decree
for refund of the advance of Rs.10,00,000/- with interest at 9% per annum
from the date of the suit till today and at 6% per annum from today till date
of payment. No costs.
(R.SUBRAMANIAN, J.) (R.SAKTHIVEL, J.)
04.06.2024
dsa
Index : No
Internet : Yes
Neutral Citation : No
Speaking order
To
The II Additional District and Sessions Judge,
Vellore, Ranipet.
https://www.mhc.tn.gov.in/judis
R.SUBRAMANIAN, J.
and
R.SAKTHIVEL, J.
dsa
04.06.2024
https://www.mhc.tn.gov.in/judis
