Madras High Court
Selvaraj vs Pappathi on 19 February, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
A.S.No.328 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 19.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
A.S.No.328 of 2022
and CMP.No.12000 of 2022
Selvaraj ... Appellant
Versus
Pappathi ... Respondent
Prayer: Appeal filed under Section 96 of Code of Civil Procedure, to set aside the
judgment and decree dated 27.04.2022 made in O.S.No.21 of 2017 on the file of
the learned III Additional District Judge, Villupuram @ Kallakurichi
For Appellant : Mr.N.Manokaran
For Respondent : Mr.P.Valliapan, Senior Counsel
for M/s.P.V.Law Associates
JUDGMENT
Aggrieved over the judgment and decree of the Trial Court decreeing the
suit for specific performance, the present appeal is filed.
2. The parties are arrayed to as per their own ranking before the Trial Court.
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3. Brief facts on the case is as follows:
3.a. The defendant has agreed to sell the suit property to the plaintiff for a
sale consideration of Rs.15 lakhs out of which, Rs.10 lakh was received as an
advance from the plaintiff and executed a sale agreement dated 26.05.2015. It is
agreed between the parties that the sale shall be completed within one year from
the date of the sale agreement. The plaintiff was ready and willing to perform his
part of contract and contacted the defendant to execute the sale deed in favour of
him after receiving the balance sale consideration of Rs.5,00,000/-. Despite
several requests, the defendant avoided to execute the sale deed. Hence, the suit.
3.b. It is the stand of the defendant in the written statement that the
agreement was not intended for sale of the property, in fact, the defendant has
borrowed a sum of Rs.10 lakhs for family necessity. At the time, the plaintiff
insisted the defendant to execute a registered sale agreement. Accordingly,
agreement was executed. It is denied by the defendant that after receipt of balance
sale consideration, the defendant has to execute sale deed in favour of the plaintiff,
in fact, after receipt of legal notice, the defendant has approached the plaintiff and
informed that he will pay Rs.10 lakhs/- along with interest for which the plaintiff
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has agreed. The value of the suit property is more than 1 crore and the defendant
is ready to pay the loan amount of Rs.10 lakhs with interest. Hence, opposed the
suit.
3.c. Based on the above pleadings, the Trial Court framed the following
issues:
1)Whether the plaintiff is entitled to the relief of specific performance of sale
agreement dated 26.05.2016 ?
2) Whether the sale agreement was executed as security for loan advanced as per
defendant version ?
3) To what other relief, the plaintiff is entitled to ?
3.d. On the side of the plaintiff, the plaintiff has been examined as PWI and
the attestors of the sale agreement has been examined as PW2 and PW3 and Ex A1
to A3 were marked. On the side of the defendant, the defendant has been
examined as DW1 and no documents were marked on his side.
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3.e. On consideration of oral and documentary evidences, the Trial Court
decreed the suit for specific performance. Hence, this appeal by the unsuccessful
defendant.
4. The learned counsel for the appellant submitted as follows:
a. the plaintiff has neither pleaded nor proved his continuous readiness and
willingness right from the date of Ex.A1 till the date of filing the suit.
b. The plaintiff has not proved the capacity to mobilize the balance amount.
c. A substantial advance amount of Rs.10 lakhs is paid on the date of agreement,
i.e., 26.05.2016 and one year time is stipulated for payment of remaining Rs.5
lakhs, this itself clearly shows that it is a loan transaction.
d. Legal notice was issued on 02.05.2017, thereafter, the suit filed on 21.11.2017,
hence, ready and willingness is not proved as required under law.
e. The Trial Court has not even framed issue with regard to the readiness and
willingness and the specific performance being equitable relief cannot be granted
to the plaintiff.
f. Even at the time of filing the suit or during the pendency of the suit, remaining
sale consideration has not been paid, this conduct itself shows that the plaintiff has
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established the readiness and willingness
g. only the amount has been deposited before the Court after the exparte decree
passed in the year 2019. This itself clearly shows that it is only a loan transaction
and the appellant/defendant is ready to pay the advance amount of Rs.10 lakhs
along with interest @18% p.a., Hence, submitted that suit is liable to be dismissed.
5. In support of his submissions, he placed reliance on the following
judgments:
1. U.N.Krishnamurthy (Since Deceased) Through Legal Representatives vs.
A.M.Krishnamurthy reported in (2023) 11 SCC 775
2. Shenbagam and others Vs. KK Rathinavel reported in 2022 SCC OnLine SC 71
3.Atma Ram vs. Charanjit Singh reported in (2020) 3 SCC 311
4. M.Jayaprakash Narayanan vs. Santhammal and others reported in 2018 (1)
CTC 701
5. T.R.Murugesan vs. S.Balakrishnan and others reported in 2018 (6) CTC 56.
6. Whereas, the learned senior counsel for the respondent/plaintiff submitted
as follows:
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a. DW1 himself has admitted that the execution of the sale agreement which is a
registered document. Ex.A1 has been clearly established, therefore, the plea of
loan transaction has no legs to stand.
b. The plaintiff need not have ready cash with her, it is sufficient if she establishes
the capacity to pay the balance sale consideration.
c. When the legal notice was sent to the defendant, the defendant has not been
replied to the same, these facts clearly shows that the entire defence is falsity.
d. Entire plaint, when, read as a whole, would indicate that plaintiff is always
ready and willing to fulfill his part of the obligation. The averment of readiness
and willingness in the plaint need not be in a mathematical formula, the readiness
and willingness has to be inferred from the entire pleadings.
e. The legal notice has been issued within a period of one year, whereas, the suit
has been filed thereafter within a period of six months, such delay cannot be put
against the plaintiff when the execution of the document has been clearly
established. Further, PW1 to PW3, in unison, spoken about the execution of the
document.
f. There was no dispute ever raised by the defendant about the readiness and
willingness on the part of the plaintiff to fulfill her obligation. Therefore, when the
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plea of readiness and willingness is not disputed in the entire written statement, it
has to be held that the plaintiff has proved the readiness and willingness and she is
entitled to specific performance.
7. In support of his submissions, he placed reliance on the following
judgments:
1) Motilal Jain vs. Ramdasi Devi (Smt) and others reported in (2000) 6 SCC 420
2) Sukhbir Singh and others vs. Brij Pal Singh and others reported in (1997) 2
SCC 200
3) Pandurang Ganpattanawade vs. Ganpat Bhairu Kadam and others reported in
(1996) 10 SCC 51
4) Syed Dastagir vs. T.R.Gopalakrishna Setty reported in (1996) 6 SCC 337
5) Ramakrishna Pillai and another vs. Muhammed Kunju and others reported in
(2008) 4 SCC 212
6) Gurdial Kaur (Dead) through LRs vs. Piara Singh (Dead) through LRs reported
in (2008) 14 SCC 735
7) A.N.Arunachalam vs. T.Sivaprakasam and another reported in 2011 (1) MWN
(Civil) 819
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8) Nanjappa Gounder and another vs. Ashok Kumar reported in 2013 (3) CTC
9) Nanjammal (Died) and another vs. Palaniammal reported in 1993 (1) LW 205
10) M.Ramalingam, deceased by LRs vs. V.Subramaniyam, deceased by LRs
reported in AIR 2003 Mad 305.
11) T.G.Pongiannan vs. K.M.Natarajan reported in 2009 (6) CTC 301
12) K.Manoharan vs. T.Janaki Ammal reported in 2012 (3) CTC 205.
13) M Sekar vs. P.Madeshwaran reported in 2014 (1) CTC 165
14) Rameshwar Prasad vs. Basanti Lal reported in (2008) 5 SCC 676
15) Siddamsetty Infra Projects Pvt. Ltd., vs. Katta Sujatha Reddy and others
reported in 2024 SCC OnLine SC 3214.s
8. In light of the above submissions, now, the points arises for consideration
are as follows:
(i) Whether the agreement dated 26.05.2015 is not intended for sale of property?
(ii) Whether the plaintiff was always ready and willing to perform his part of
contract?
(iii) To what other reliefs, the parties are entitled to ?
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Point (i)
9. Admittedly, Ex.A1 is a registered document and the execution of the
document is not disputed. The only contention of the defendant is that Ex.A1 came
into existence when he borrowed a sum of Rs.10 lakhs for his family necessity.
Once the execution is admitted, it is for the defendant to establish that the
document is not intended for sale of the property. PW1 to PW3 have clearly
spoken about the execution of the document only for sale of property. DW1 in his
cross examination has clearly admitted that he has consciously executed the
document after understanding the contents of the documents. Therefore, once the
execution of the document is admitted and in the absence of any materials on
records to show that it is only a loan transaction, the contention of the defendant
that Ex.A1 is executed only as a security for loan transaction has no legs to stand.
Further, to prove that the defendant has paid interest towards principal, absolutely,
there is no materials whatsoever available on record. Therefore, in the absence of
any materials to establish that the agreement is executed only towards security for
the loan transaction, the plea of defence that Ex.A1 is a result of loan transaction
cannot be countenanced.
10. Accordingly, this point is answered.
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Points II & III
11. When the execution of the document is proved, it has to be seen,
whether plaintiff proved readiness and willingness on her part to perform the
contract. Though it is contended by the learned counsel for the defendant that the
plaintiff has not averred the readiness and willingness in the plaint, on a careful
perusal of the plaint, such contention has no force at all. In fact, the plaintiff in his
pleadings has stated that he was ready and willing to pay the remaining sale
consideration. Now, it has to be seen whether mere pleadings of readiness and
willingness will absolve the plaintiff from proving the same before the Court of
law.
12. It is well settled that readiness and willingness are distinct act.
Readiness is capacity to mobilise fund and willingness is mental attitude in
purchasing the property. When both the conditions are proved in the manner
known to law, then, the plaintiff is certainly entitled to specific performance being
an equitable relief. Similarly, when the conditions as to readiness and willingness
to perform the contract are not proved as mandated under law, the plaintiff is
barred from seeking relief of specific performance as per Section 16 (c) of Specific
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Relief Act, 1963.
13. Section 16 of Specific Relief Act reads as follows:
"16. Personal bars to relief: Specific performance of a contract
cannot be enforced in favour of a person—
(a) who would not be entitled to recover compensation for its breach;
or
(b) who has become incapable of performing, or violates any
essential term of, the contract that on his part remains to be
performed, or acts in fraud of the contract, or wilfully acts at
variance with, or in subversion of, the relation intended to be
established by the contract; or
(c)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 terms the
performance of which has been prevented or waived by the
defendant.
Explanation.—For the purposes of clause (c)—
(i) where a contract involves the payment of money, it is not essential
for the plaintiff to actually tender to the defendant or to deposit in
court any money except when so directed by the court;
(ii)the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true
construction."
14. It is relevant to note that agreement was entered on 26.05.2015. Though
one year time was stipulated in the sale agreement, legal notice was issued only on
02.05.2017/last month of the limitation period. Of course, legal notice has not
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been replied by the defendant, however, the fact remains that till the legal notice is
sent, absolutely there is no evidence whatsoever available on the side of the
plaintiff to show that he was continuously ready and willing to purchase the
property. Readiness and willingness is a continuous process, it should be
established from the date of agreement till the agreement culminates into sale.
Continuous readiness and willingness on the part of the plaintiff is a condition
precedent for grant of relief of specific performance. Till the legal notice was
issued, i.e., 02.05.2017, absolutely there is no evidence to show that plaintiff has
taken steps even to complete her obligation by tendering remaining sale
consideration. Though in the pleadings, it is pleaded that she on several occasions
met the defendant for paying the remaining sale consideration, however, in her
evidence, there is no details whatsoever given as to when the plaintiff has met the
defendant. Thus, it must be held that the plaintiff has failed to comply with the
requirements of Section 16(c) of the Specific Relief Act and the plaintiff is not
entitled to a decree for specific performance.
15. It is also to be noted that the defendant's admission in the cross
examination clearly indicate that she has never applied for encumbrance over the
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property and further, she had stated that suit property consists of ground floor. The
suggestion put to the PW1 that the suit property consists of three floors is totally
denied. Her evidence when read in conjunction with Ex.A1/Sale agreement makes
it clear that the plaintiff is not even aware of the nature of the property proposed to
be purchased. On perusal of Ex.A1, it would indicate that suit property consists of
7 cents comprised of 440 sq.ft., of RCC building, wherein, there are ground floor,
first floor and incomplete terrace without electricity, door and window.
16. When the very agreement itself indicate that the property consists of
ground floor, first floor and incomplete terrace without electricity, door and
window, the plaintiff is not even aware of the nature of the property. In her
evidence, she has admitted that property comprises only of ground floor alone.
These facts clearly indicate that she has not even made an enquiry with regard to
the nature of the property even after the agreement.
17. The learned senior counsel for the plaintiff relief on the judgment of the
Hon'ble Supreme Court in the case of Sukhbir Singh and others vs. Brij Pal Singh
and others reported in (1997) 2 SCC 200, wherein, it is held that Law in not in
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doubt and it is not a condition that the respondents should have ready cash with
them. It is sufficient for the respondents to establish that they had the capacity to
pay the sale consideration. In the present case it is not the evidence of the plaintiff
that she had capacity to mobilise the remaining amount, i.e., Rs.5 lakhs. It is
relevant to note that when the plaintiff was confronted in cross examination and
when a specific suggestion was put as to whether she has sufficient means at the
time of agreement itself, she denied it, further, no materials whatsoever placed and
no evidence available on record to show that she possessed remaining sale
consideration to complete the sale. Therefore, in the absence of readiness and
willingness which is continuous process, the relief of specific performance being
equitable relief cannot be granted.
18. The learned senior counsel for the plaintiff relief on the judgment of the
Hon'ble Supreme Court in the case of Pandurang Ganpattanawade vs. Ganpat
Bhairu Kadam and others reported in (1996) 10 SCC 51, wherein, the case was
the defendant therein in his deposition has stated that the the plaintiff was ready
for sale deed, but he was not ready. Thus, the Hon'ble Supreme Court has held that
plaintiff has not only averred, but also proved that he was ready and willing to
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perform his part of contract under the agreement for sale. Whereas, in the present
case, though the plaintiff has averred in the plaint with regard to the readiness and
willingness, however, she has not established that she was in continuous readiness
and willingness to perform his part of contract. Hence, the above judgment is
factually applicable to the present case.
19. The learned senior counsel for the plaintiff relied on the judgment of
this Court in K.Manoharan vs. T.Janaki Ammal reported in 2012 (3) CTC 205,
whereas, the plaintiff therein had categorically averred his readiness and
willingness to pay the balance sale consideration and in evidence also, reiterated
the same. However, in the case on hand, though the plaintiff has averred in the
plaint that she was ready and willing to perform the contract, there is no iota of
evidence and materials whatsoever to establish that she was in continuous
readiness and willingness to perform his part of contract from the date of contract
till the date of filing the suit. Hence, the above judgment is not factually applicable
to the present case.
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20. Section 16(c) of Specific Relief Act lays down that specific performance
of a contract cannot be enforced in favour of 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.. This Court is of the view that mere pleading is not
enough; plaintiff has to establish her readiness and willingness to perform her part
of the contract.
21. In N.P.Thirugnanam vs. Dr.R.Jagan Mohan Roa reported in 1995 (5)
SCC 115, the Hon'ble Supreme Court has held as follows:
" 5. It is settled law that remedy for specific performance is an
equitable remedy and is in the discretion of the court, which
discretion requires to be exercised according to settled principles of
law and not arbitrarily as adumbrated under Section 20 of the
Specific Relief Act, 1963 (for short “the Act”). Under Section 20, the
court is not bound to grant the relief just because there was a valid
agreement of sale. Section 16(c) of the Act envisages that plaintiff
must plead and prove that he had 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 those terms the
performance of which has been prevented or waived by the
defendant. The continuous readiness and willingness on the part of
the plaintiff is a condition precedent to grant the relief of specific
performance. This circumstance is material and relevant and is
required to be considered by the court while granting or refusing to
grant the relief. If the plaintiff fails to either aver or prove the same,
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he must fail. To adjudge whether the plaintiff is ready and willing to
perform his part of the contract, the court must take into
consideration the conduct of the plaintiff prior and subsequent to the
filing of the suit along with other attending circumstances. The
amount of consideration which he has to pay to the defendant must of
necessity be proved to be available. Right from the date of the
execution till date of the decree he must prove that he is ready and
has always been willing to perform his part of the contract. As stated,
the factum of his readiness and willingness to perform his part of the
contract is to be adjudged with reference to the conduct of the party
and the attending circumstances. The court may infer from the facts
and circumstances whether the plaintiff was ready and was always
ready and willing to perform his part of the contract."
22. The above judgment would make it clear that plaintiff must plead and
prove his readiness and willingness in performing his part of contract.
23. Similarly, the Hon'ble Supreme Court in the case of U.N.Krishnamurthy
(Since Deceased) Through Legal Representatives vs. A.M.Krishnamurthy reported
in (2023) 11 SCC 775 has held that to aver and prove readiness and willingness to
perform an obligation to pay money, in terms of a contract, plaintiff would have to
make specific statements in plaint and adduce evidence to show availability of
funds to make payment in terms of contract in time.
24. Further, a Division Bench of this Court in the case of T.R.Murugesan vs.
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S.Balakrishnan and others reported in 2018 (6) CTC 56 has held that as pointed
out by the Hon'ble Supreme Court in various decisions, the plaintiff must not only
prove his readiness but also establish willingness
25. The learned senior counsel for the plaintiff relied on the judgment of the
Hon'ble Supreme Court in the case of Madhukar Nivrutti Jagtap and others vs.
Pramilabai Chandulal Parandekar (Dead) reported in (2020) 15 SCC 731,
wherein, the Hon'ble Supreme Court has held that the requirement of readiness
and willingness of the plaintiff is not theoretical in nature but is essentially a
question of fact, which needs to be determined with reference to the pleadings and
evidence of parties as also to all the material circumstances having bearing on the
conduct of the parties, the plaintiff in particular.
26. Similarly, the Hon'ble Supreme Court in the case of C.S.Venkatesh vs.
A.S.C.Murthy reported in (2020) 3 SCC 280 has held that the Court while
adjudging whether the plaintiff is ready and willing to perform his part of contract,
the Court must take into consideration the conduct of the plaintiff prior and
subsequent filing of the suit along with the other attending circumstances in a
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particular case.
27. No doubt, the readiness and willingness of the plaintiff is not theoretical
in nature but is essentially a mixed question of fact and needs to be determined
with reference to pleadings and evidence of parties as also to all the material
circumstances having bearing on the conduct of the parties. It is relevant to note
that the conduct of plaintiff is very crucial in a suit for specific performance.
Normally, when a prudent person really intends to purchase the property,
immediate reaction is to at-least verify the encumbrance or verify the title of the
property, however, no attempts whatsoever made to know the nature of the
property. In fact, the plaintiff evidence indicate that she is not aware of the first
floor and incomplete terrace attached with the property, wherein, she has admitted
that only ground floor alone is there. When a person not even made enquiry with
regard to the nature of the property, willingness to purchase the property would
not be established. Therefore mere entering the agreement without verifying the
title, nature of the property, further without establishing her capacity to mobilise
the remaining sale consideration, it cannot be held that readiness and willingness
has been established. Further, the readiness and willingness could not be treated as
strait jacket formula and that had to be determined from the entirety of facts and
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circumstances relevant to the intention and conduct of the party concerned.
28. It is apposite to point out that the Hon'ble Supreme Court in the case of
U.N.Krishnamurthy (Since Deceased) Through Legal Representatives vs.
A.M.Krishnamurthy reported in (2023) 11 SCC 775 with regard to framing of
issues by the Court has observed as follows:
“ 32. In a suit for Specific Performance of a contract, the
Court is required to pose unto itself the following questions, namely:-
32.1. Whether there is a valid agreement of sale binding on
both the vendor and the vendee.
32.2 Whether the Plaintiff has all along been and still is ready
and willing to perform his part of the contract as envisaged under
Section 16(c) of the Specific Relief Act, 1963 ”
29. However, the fact remains that in the present case, the Trial Court
without framing the issues with regard to the readiness and willingness of the
plaintiff has granted the equitable relief of specific performance which in view of
this Court is not maintainable. The Trial Court without any issues being framed
has decreed the suit for specific performance which is not in accordance with and
the same is not maintainable in the eye of law.
30. It is relevant to be noted that as far as the immovable properties is
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concerned, though, the time is not an essence of the contract, the fact remains that
the time agreed between the parties to perform certain obligations cannot be
brushed aside altogether. In this regard, it is useful to refer to the judgment in the
case of Chand Rani vs. Kamal Rani reported in 1993 (1) SCC 519 which reads as
follows:
" 22. In Hind Construction Contractors case quoting
Halsbury's Laws of England, this Court observed at pages 1154-55
as under : (SCC pp. 76- 77, paras 7 & 8) "In the latest 4th edn. of
Halsbury's Laws of England in regard to building and engineering
contracts the statement of law is to be found in Vol. 4, Para 1179,
which runs thus 1179. Where times is of the essence of the contract. -
The expression time is of the essence means that a breach of the
condition as to the time for performance will entitle the inconstant
party to consider the breach as a repudiation of the contract.
Exceptionally, the completion of the work by a specified date may be
a condition precedent to the contractor's right to claim payment. The
parties may expressly provide that time is of the essence of the
contract and where there is power to determine the contract on a
failure to complete by the specified date, the stipulation as to time
will be fundamental. Other provisions of the contract may, on the
construction of the contract, exclude an inference that the completion
of the works by a particular date is fundamental; time is not of the
essence where sum is payable for each week that the work remains
incomplete after the date fixed, nor where the parties contemplate a
postponement of completion Where time has not been mad of the
essence of the contract or, by reason of waiver, the time fixed has
ceased to be applicable, the employer may be notice fix a reasonable
time for the completion of the work and dismiss the contractor on a
failure to complete by the date so fixed.
...
It will be clear from the aforesaid statement of law that even where
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the parties have expressly provided that time is the essence of the
contract such a stipulation will have to be read along with other
provisions of the contract and such other provisions may, on
construction of the contract, exclude the inference that the
completion of the work by a particular date was intended to be
fundamental; for instance, if the contract were to include a clause
providing for extension of time in certain contingencies or for
payment of fine or penalty for every day or week the work undertaken
remains unfinished on the expiry of the time provided in the contract
such clause would be construed as rendering ineffective the express
provision relating to the time being of the essence of contract."
31. The above judgment makes it clear that in case of sale of immovable
property time is not the essence of the contract. However, if the parties agreed to a
specified time in the agreement, to perform their part of the contract then time is
the essence of the contract and the parties are required to adhere to the same.
Similarly, the Hon'ble Supreme Court in the case of K.S.Vidyanadam vs. Vairvan
reported in (1997) 3 SCC 1 has held that though time is not of essence to a
contract relating to transfer of property, such contracts needs to be completed
within a reasonable time period. Thus, the plaintiff having agreed one year time,
legal notice was sent only on 02.05.2017, last month of limitation, that apart, the
suit has been filed on 21.11.2017 with a delay of 6 months which clearly indicate
that the plaintiff is not ready and willing to perform the contract. That apart even
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while filing the suit, though it is not necessary to deposit the amount in the Court,
the conduct of the plaintiff in not making any attempt to prove his readiness and
willingness by depositing the amount in the Court cannot be ignored, whereas,
only in the year 2019 after the exparte decree was passed, the plaintiff had
deposited the remaining sale consideration. These facts also clearly shows that the
plaintiff is not entitled to equitable relief of specific performance.
32. In this regard, it is relevant to note that the Hon'ble Supreme Court in
the case of Umabai vs. Nilkanth Dhondiba Chavan reported in (2005) SCC 6 243
has held that deposit of amount in Court is not enough to arrive at conclusion that
the plaintiff was ready and willing to perform his part of contract. When the
plaintiff was confronted in the cross examination and when a suggestion was put
as to whether she had sufficient means at the time of agreement itself, she denied
it. This Court is of the view that making subsequent deposit of balance sale
consideration in the Court that too after passing of exparte decree in the suit would
not establish the plaintiff's readiness in discharging his part of obligation.
33. Accordingly, this Court is of the view that the plaintiff has not
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discharged the initial burden of proving the readiness and willingness as mandated
under law for relief of specific performance, further, the plaintiff is not even aware
of the nature of the suit property, she intended to purchase. Thus, these facts
clearly indicate that the readiness and willingness is totally absent on the plaintiff's
part in purchasing the property. Further, the Trial Court has not framed any issues
with regard to the readiness and willingness of the plaintiff in performing his part
of contract.
34. Considering the above, this Court is of the view that the decree and
judgment of the Trial Court dated 27.04.2022 has to be necessarily interfered with.
Accordingly, the decree and judgment of the Trial Court dated 27.04.2022 passed
in O.S.No.21 of 2017 is set aside. Though the plaintiff has not asked for alternate
relief for the return of advance sale amount, the Court is empowered to mould the
relief to render complete justice.
35. It is relevant to point out that a Division Bench of this Court in
N.Sekaran and another vs. C.Rajendran reported in AIR 2018 Mad 67 has granted
alternate relief for return of advance sale amount, even though the plaintiff has not
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asked for alternate relief in order to render complete justice.
36. In view thereof, the appeal suit is partly decreed for alternate relief for
return of a sum of Rs.10,00,000/- by the defendant to the plaintiff, together with
simple interest @ 18% p.a., from the date of agreement, viz., 26.05.2016 till the
date of realisation. The plaintiff is permitted to withdraw the remaining sale
consideration deposited before the Trial Court in pursuant to the exparte decree.
For the decretal amount, charge is also created over the suit property and it is
made clear that until the entire amount is paid, charge shall continue. No costs.
Consequently, connected miscellaneous petition stands closed.
19.02.2025
Index : Yes / No
Speaking/non speaking order
dhk
To,
1.The III Additional District Judge
III Additional District Court, Villupuram @ Kallakurichi
2. The Section Officer
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VR Section
High Court, Madras
N. SATHISH KUMAR, J.
19.02.2025
https://www.mhc.tn.gov.in/judis
