Madras High Court
P.G.Immanuel (Died) vs C.Natarajan Naicker (Deceased) on 12 November, 2024
Author: R.Subramanian
Bench: R.Subramanian
A.S.No.322 of 2017
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
A.S.No. 322 of 2017
and
C.M.P.No. 12327 of 2017
1. P.G.Immanuel (died)
2.Robert
3.Nirmala Paulraj
4.Gracy Louis ...Appellants
(A2 to A4 are brought on record as LRs of deceased
sole appellant, vide Order of Court dated 06.12.2023
made in CMP.No.27228 of 2023 in AS.No.322 of 2017)
Vs.
C.Natarajan Naicker (deceased)
1.Meenatchi Ammal
2.Rajasekar
3.Chandra Sekar
4.Vijaya
5.Vanaja
1/16
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A.S.No.322 of 2017
6.The Sub-Registrar,
Pammal, Alandur Taluk.
7.The State of Tamil Nadu,
Represented by District Collector,
Kancheepuram,
Kancheepuram District. ...Respondents
(5th respondent name amended vide order of the court
dated 16.02.2018 made in CMP.No.1179/2018 in
A.S.No.322 of 2017)
Prayer: First Appeal filed under Section 96 of the Code of Civil Procedure,
against the judgment and decree in O.S.No.199 of 2012 on the file of the
Principal District Court, Kancheepuram at Chengalpattu dated 03.04.2017.
For Appellants : Mr.C.Jagadish
For Respondents : Mr.N.R.Anantha Ramakrishnan
for R1 to R5
R6 & R7 - Given up
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
The defendant is on appeal, aggrieved by the decree for specific
performance granted in O.S.No.199 of 2012 on the file of the Principal
District Court, Chengalpet.
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2. The parties are referred as per their ranking in the suit for the
purpose of convenience. The plaintiff sued for specific performance of the
agreement dated 02.03.2012. According to the plaintiff, the first defendant
had agreed to sell the property which is a dwelling house for a consideration
of Rs.88,00,000/-. An advance of Rs.10,00,000/- was paid on the date of
the agreement and three months time was fixed for performance of the
contract. The plaintiff paid a further sum of Rs.20,00,000/- on 12.02.2012
and Rs.5,00,000/- on 15.03.2012. These payments are evidenced by
endorsements made on the reverse of the agreement dated 02.03.2012. The
last date for performance was fixed as 02.06.2012.
3. According to the plaintiff, when he approached the first defendant
for executing the sale deed even during the last week of May, 2012, he
assured the plaintiff that he would execute the sale deed on 04.06.2012 as
02.06.2012 happens to be a Saturday. Believing the defendant, the plaintiff
went to the Registrar’s Office at Pammal but, the defendant did not turn up.
Therefore, the plaintiff met the defendant in his house on the same day
evening and the defendant requested 10 days further time. Therefore, the
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plaintiff sent a letter on 05.06.2012 to the defendant informing him that he
would concede to the request and take the sale deed after 10 days.
However, the defendant did not come forward to execute the sale deed as
assured by him. A police complaint was given on 14.06.2012. The
defendant who came to the Police Station at about 2 p.m. agreed to execute
the sale deed on 18.06.2012.
4. It is also claimed that the defendant wanted part of the remaining
sale consideration i.e., sum of Rs.16,00,000/- by way of a demand draft and
the balance in cash. Therefore, the plaintiff had taken a demand draft for
Rs.16,00,000/- in the name of the defendant and was waiting in the Sub-
Registrar’s Office on 18.06.2012. The defendant did not turn up on the said
date also. The plaintiff again lodged a complaint with the police. The letter
sent by the plaintiff on 05.06.2012 by Registered Post Acknowledgment
Due was returned with an endorsement 'unclaimed'. Again, the plaintiff sent
a notice on 28.06.2012 demanding performance of the agreement. The said
notice was also returned with endorsement 'door locked'. Therefore, left
without any other alternative option, the plaintiff sued for specific
performance on 19.07.2012. The plaintiff was also claimed that he was
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ready and willing to perform his part of the contract and it is the defendant
who evaded the performance.
5. The suit was resisted by the defendant contending that the plaintiff
was not ready and willing to perform his part of the contract. While
admitting the agreement, the defendant contended that he wanted the money
in March, 2012 itself. Though the plaintiff assured him, failed to pay the
money in March. He would also contend that the period fixed for
performance having expired on 02.06.2012, the plaintiff having not
exhibited his readiness and willingness within the period fixed under the
agreement, is not entitled to specific performance. Insufficiency of funds
and the absence of consent from the family members were also projected in
defence.
6. On the pleadings, the learned Trial Judge framed the following
issues:-
1. Whether the plaintiff is entitled to the relief of specific
performance?
2. Whether time is essence of the contract?
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3. Whether the plaintiff was always ready and wiling to
perform his part of the contract?
4. To what relief the parties are entitled?
At trial, the grandson of the plaintiff was examined as P.W.1 and Exs.A1 to
A10 were marked. On the side of the defendants, the 1st defendant namely,
Immanuel was examined as D.W.1 and Exs.B1 to B4 were marked.
7. On the consideration of the evidence, the Trial Judge concluded
that time was not the essence of the contract, since it is a transaction of sale
of immovable property. On issue No.3, the learned Trial Judge found that
though the evidence of P.W.1 would be insufficient to conclude on the
readiness and willingness of the plaintiff, the circumstance would clearly
demonstrate the readiness and willingness on the part of the plaintiff to have
the sale deed executed. On the said findings, the learned Trial Judge
concluded that the plaintiff is entitled to specific performance and decreed
the suit as prayed for granting the plaintiff three months time to pay the
balance sale consideration. Hence, this appeal.
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8. We have heard Mr.C.Jagadish, learned counsel appearing for the
appellants and Mr.N.R.Anantha Ramakrishnan, learned counsel for the
respondents.
9. Mr.C.Jagadish, learned counsel for the appellant would vehemently
contend that non-examination of the plaintiff is fatal to the case. According
to the learned counsel, readiness and willingness can be proved only by
examining the person concerned and not otherwise. The learned counsel
would also point out that though the time fixed under agreement expired on
02.06.2012, there is nothing to show that the plaintiff demanded
performance within the time fixed under the agreement. He would also
further point out that the plaintiff who claims to have been ready and willing
to perform his part of the contract and take a demand draft only for
Rs.16,00,000/- when the balance sale consideration was Rs.53,00,000/-.
This conduct on the part of the plaintiff, according to Mr.C.Jagadish is fatal
to the claim for specific performance. The learned counsel would also point
out that the defendant had issued a notice on 16.06.2012, requiring the
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plaintiff to take back advance and only after the issuance of the said notice,
the plaintiff come forward with the legal notice seeking specific
performance on 28.06.2012. Therefore, according to the learned counsel,
the Trial Court was not right in concluding that the plaintiff was ready and
willing to perform his part of the contract.
10. Contending contra, Mr.N.RAnantha Ramakrishnan, learned
counsel for the respondents would submit that no doubt, it is incumbent
upon the plaintiff to prove readiness and willingness in a suit for specific
performance but, jingling of the coins is not necessary. All that is required
for the plaintiff is to establish that he was ready and willing and he was
possessed of sufficient means to pay the sale consideration.
11. The learned counsel for the respondents would submit that the
following features militated against the plea of the defendant that the
plaintiff was not ready and perform his part of the contract:
i) The time fixed under the contract expired on 02.06.2012.
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ii) On 05.06.2012, the plaintiff had written to the defendant stating
that he was ready to have the sale deed executed on 04.06.2012 and it was
the defendant who sought for ten days time.
iii) In the said letter, the plaintiff had made it clear that he has always
been ready and willing to perform his part of the contract.
iv) The plaintiff had lodged a police complaint on 14.06.2012 through
his wife again, reiterating that he has been ready and willing to perform his
part of the contract.
v) The plaintiff has taken a demand draft for Rs.16,00,000/- on
16.06.2012, since according to him, the defendant had agreed to execute
sale deed on 18.06.2012.
vi) The letter dated 05.06.2012 as well as the notice dated 28.06.2012
have been returned to the plaintiff without service.
vii) The defendant has chosen to issue a legal notice on 16.06.2012
wherein, the address of the defendant is shown as the same address to
which, the letter dated 05.06.2012 and the legal notice dated 28.06.2012
were issued.
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11. These factors, according to the learned counsel would
demonstrate that the plaintiff has always been ready and willing and it is
the defendant who has attempted to derail the agreement by not coming
forward to execute the sale deed. Though it is claimed that notice dated
16.06.2012 was issued by the defendant, offering to refund the advance,
there is no evidence of service of the said notice on the plaintiff. Neither
the acknowledgment card nor the tracking sheet have been produced. Only
the receipt has been produced. This according to the learned counsel would
show that the defendant had made all attempts to wriggle out of the
agreement. We have considered the rival submissions.
12. On the arguments of the learned counsel for the parties, the
following points emerge for determination:-
i) Whether the plaintiff was ready and willing to perform
his part of the contract.
ii) Whether the plaintiff is entitled to specific
performance of the agreement.
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13. Readiness and willingness to perform the contract has to be
established by the plaintiff. It is not necessary for the plaintiff to put the
money before the Court. It is enough that the plaintiff shows that he was
ready and willing through out the period. In the case on hand, the plaintiff
has specifically stated that he had requested the defendant to execute the
sale deed during last week of May, 2012 and the defendant had assured him
to execute the sale deed on 04.06.2012. This fact has been averred even in
the letter dated 05.06.2012, which is the first document that emanated after
the agreement. The defendant has not denied the receipt of the advance of
Rs.35,00,000/- from the plaintiff in three instalments. The remaining
amount was a sum of Rs.53,00,000/-.
14. On 14.06.2012, the plaintiff had lodged a police complaint and he
has further pleaded that the defendant had agreed to execute the sale deed
on 18.06.2012 and he wanted the remaining sale consideration to be paid in
cash and demand draft for Rs.16,00,000/- Therefore, he had taken the
demand draft for Rs.16,00,000/- on 16.06.2012 itself. There is nothing on
record to show that the plaintiff was not ready and willing. In fact, there is
no plea that the plaintiff does not have the means to pay the balance sale
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consideration in the written statement. All that the defendant would allege
is that he is the land broker and he was looking for purchasers.
15. The conduct of the plaintiff that could be gathered from the facts
narrated above would show that the plaintiff has always been ready and
willing. The grandson of the plaintiff who was examined as P.W.1 has also
spoken about the readiness and willingness. Of course, the Trial Court has
pointed out that his evidence alone may not be sufficient to reach a
conclusion on readiness and willingness. It has however, relied upon the
circumstance to conclude that the plaintiff has been ready and willing. We
have been taken through the evidence both, documentary and oral. We do
not find any reason to come to a different conclusion than the one reached
by the Trial Court on the question of readiness and willingness.
16. No doubt, the learned counsel for the appellant would vehemently
contend that the fact that the plaintiff has taken a demand draft only for
Rs.16,00,000/- on 16.06.2012 would show that he did not have the
remaining money. Even in the plaint, the plaintiff has specifically pleaded,
the defendant wanted Rs.16,00,000/- by way of demand draft and remaining
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amount by way of cash. This conduct is quite normal and it does not appear
to be a result of a scheme to deny the rights of the defendant. The conduct
of the defendant is little intriguing. The letter dated 05.06.2012 and the
notice dated 28.06.2012 sent to him to the same address have been returned
with endorsements 'unclaimed' and 'door locked' respectively but, a legal
notice was issued by the defendant to the plaintiff on 16.06.2012 wherein,
he is stated to be residing in the very same address. The defendant has not
chosen to produce that acknowledgment or the tracking sheet to show the
receipt of the said notice by the plaintiff. In fact, we find that there is no
reference to the said notice in the plaint. We find that the defendant has not
proved service of the said notice dated 16.06.2012 marked as Ex.B1.
17. We therefore, conclude that the plaintiff was always ready and
willing to perform his part of the contract and he has also filed the suit
within a very reasonable time i.e., on 19.07.2012 itself. Of course, the
plaintiff has not deposited the balance of sale consideration at the time of
filing of the suit. Law is settled, that it is not necessary for the plaintiff to
deposit the sale consideration whenever he or she files the suit for specific
performance.
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18. Mr.N.R.Anantha Ramakrishnan informs that the balance sale
consideration has also been deposited in the Trial court within the time
granted by this Trial Court. We therefore, see no reason to interfere with
the judgment of the learned District Judge. This First Appeal therefore,
fails and it is accordingly, dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
(R.S.M., J.) (C.K., J.)
12.11.2024
kkn
Internet:Yes
Index: No
Speaking
Neutral Citation : No
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To:-
The Principal District Judge,
Kancheepuram at Chengalpattu.
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R.SUBRAMANIAN, J.
and
C.KUMARAPPAN, J.
KKN
12.11.2024
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