Madras High Court
Unknown vs / on 15 July, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.536 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 15.07.2025
Coram:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Appeal Suit No.536 of 2022
& C.M.P.No.20014 of 2022
S.Manimekalai (Died)
1.S.Sankar,
S/o.Late. Sivagnanam
2. S.Baggiyaraj
S/o.Late. Sivagnanam
3. S.Kalpana
D/o.Late. Sivagnanam
1 to 3 are residing at
Pavakkal Village,
Uthankarai Taluk,
Krishnagiri District.
4. V.Parthiban
S/o.Late. Venugopal,
5.V.Baskaran
S/o.Late.Venugopal,
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A.S.No.536 of 2022
6.V.Suresh
S/o.Late. Venugopal,
4 to 6 are residing at
Samalpatti Village, Uthankarai Taluk,
Krishnagiri District. ...Appellants/Defendants.
/versus/
A.Mohan @ Mohanraj
S/o.K.Appavu Udaiyar,
D.No.114, Polur Road,
Chengam Town. ... Plaintiff/Respondent
Appeal Suit has been filed under Section 96 of the Civil Procedure Code,
pleased to set aside the judgment and decree dated 05.01.2022 of the Additional
District Court, Tiruvannamalai made in O.S.No.27 of 2011.
For Appellant : Ms.G.Sumitra
For Respondents : Mr.S.Mukunth, Senior Counsel,
for Mr.K.Venkatasubban,
for M/s.Sarvabhauman Associates
JUDGMENT
The suit for specific performance was decreed by the trial Court in
favour of the plaintiff
2. Being aggrieved by the decree, the defendants have filed the
present appeal before this Court.
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3. The short point involved in this matter is that:
(i) Whether the plaintiff was ready and willing to perform his part of
contract and ;
(ii) Whether the defendants had absolute right in the property to enter
into sale agreement with the plaintiff.
4. The trial Court, after perusing the evidence has held both the issues
in favour of the plaintiff. However, in the appeal preferred by the defendants, it is
contended that the suit agreement dated 09.02.2011 has specifically fixed time for
performance as six months. Though, the plaintiff pleaded that he was ready with
the balance sale consideration of Rs.19,36,100/- on 22.07.2011 at Chengam, it is
admitted that only the defendants 5 to 7 turned up and others did not turn up. As a
result, the plaintiff has not tendered the balance sale consideration. However, the
said fact not been proved by the plaintiff and in fact, the legal notice calling upon
the defendants to come and execute the sale deed itself was issued only after the
lapse of six month period. Furthermore, the trial Court had failed to take note of
the fact that apart from the defendants, there are other female heirs of
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Late.Venugopal Chettiar, who were not parties to the sale agreement and therefore,
on this ground also, the suit for specific performance ought not to have been
decreed.
5. The Learned Counsel appearing for the respondent contended that
Ex.A1 the sale agreement, was executed by the defendants 1 to 7, wherein they
promised to sell the property for sale consideration of Rs.22,36,100/- and received
a part payment of Rs.3,00,000/- on the date of executing the sale agreement.
Within stipulated period of six months, the defendants were called upon to execute
the sale deed after receiving the balance sale consideration but few of the them did
not turned up and defendants 5 to 7 were present demanded Rs.11,00,000/- on that
day and promise to bring the other vendors within a period of two months. Since
the plaintiff want to complete the contract by paying the entire sale consideration
to all the vendors at one time, he accepted the request of the defendants 5 to 7 and
waited for other two months. Therefore, his readiness and willingness were always
be expressly proved. Furthermore, he would also state that soon after the decree
dated 05.01.2022, the balance sale consideration was deposited on 07.01.2022
which would also establish his readiness and willingness in performing the
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contract.
6. The evidence of P.W.1 and P.W.2 along with documents marked as
Ex.P.1 to Ex.P.16 indicates that the defendants 1 to 7 had inherited the property
from Late.Venugopal Chettiar, plotted out into housing site and being selling it to
various third parties, including the family members of the plaintiff. The property
has been sold by the defendants 1 to 7 and the wife of Venugopal Chettiar and
daughter of Venugopal Chettiar had not taken any claim in those portion of
property. In fact, even after the suit agreement dated 09.02.2011, which is marked
as Ex.A1, the defendants 1 to 7 themselves alienated the portion of the property
inherited by them through Venugopal Chettiar to one Raja (Ex.A15, dated
08.09.2011) and to one Mr.Arumugam (Ex.A.16). Therefore, the trial Court has
rejected the plea of non-joinder of necessary parties. After alienating most of the
plots, the defendants 1 to 7 had come forward to take a plea that there are co-
owners to the property only in respect of Ex.A1 alone. Till date, there is no
indication that the widow and daughter of Late.Venugopal Chettiar had sought any
right in the property. Even if it is so, when pre-suit notice (Ex.A2) was caused, the
defendants ought to have disclosed the fact and should have returned the advance
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amount received.
7. This Court finds from the records is that, on receipt of the pre-suit
notice (Ex.A2), the defendants 5 to 7 alone has replied under Ex.A10, wherein
they have doubted the readiness and willingness of the plaintiff and also projected
a new fact contrary to their own agreement by introducing co-sharers to the
property.
8. This Court, on perusing the records and evidence, finds that the
property left by Venugopal Chettiar has been dealt by the defendants 1 to 7 and
alienated most of the property. There is no other rival claim for those properties.
Even with respect to the subject property, no rival claim made by the female heirs
of Venugopal Chettiar. Therefore, the defence taken by the defendants that the
suit agreement is not capable of being performed for non-joinder of necessary
party is baseless.
9. As far as readiness and willingness is concerned, it is trite law that
the buyer need not jungle the coins before the vendor at all times. However, there
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must be material evidence to show that the purchaser was always ready and willing
to perform the contract. In the instant case, the agreement is dated 09.02.2011
with six months' time to perform. The said period expired on 09.08.2011.
10. In Man Kaur (dead) by LRs. vs. Hartar Singh Sangha reported
in (2010) 10 SCC 512, it is held that:
“17. To succeed in a suit for specific performance,
the plaintiff has to prove: (a) that a valid agreement of sale
was entered into by the defendant in his favour and the
terms thereof; (b) that the defendant committed breach of
the contract; and (c) that he was always ready and willing
to perform his part of the obligations in terms of the
contract. If a plaintiff has to prove that he was always ready
and willing to perform his part of the contract, that is, to
perform his obligations in terms of the contract, necessarily
he should step into the witness box and give evidence that
he has all along been ready and willing to perform his part
of the contract and subject himself to cross-examination on
that issue. A plaintiff cannot obviously examine in his place,
his attorney-holder who did not have personal knowledge
either of the transaction or of his readiness and willingness.
Readiness and willingness refer to the state of mind and
conduct of the purchaser, as also his capacity and
preparedness on the other. One without the other is not
sufficient. Therefore a third party who has no personal
knowledge cannot give evidence about such readiness and
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willingness, even if he is an attorney-holder of the person
concerned.”
11. The case of the plaintiff is that even on 22.07.2011, he was ready
with the cash, but all the defendants did not turn up. It is word against word and
even if this is not held to be proved, the moment he filed the suit after pre-suit
notice and receipt of the reply his intention to get the sale agreement executed is
palpably made clear and the payment of the balance sale consideration soon after
the decree proves his readiness and willingness. Hence, the same cannot be
doubted merely because the plaintiff had not sought for the Court permission to
deposit the balance sale consideration during the pendency of the suit.
12. This Court, at the same time, take note of the fact that, being an
immovable property which has propensity of price escalation every quarterly, the
plaintiff cannot be enriched by holding the sale consideration for 10 years. The
defendants are entitled for an equitable compensation for the delayed payment,
even though the delay is contributable to their own conduct. Hence, the
respondent/plaintiff herein is directed to pay a further sum of Rs.8,00,000/- which
will be around 4% of the balance sale consideration paid 10 years after the date of
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agreement. The said money shall be paid within a period of 30 days. On such
payment, the defendants/appellants shall come forward to execute the sale deed in
favour of the respondent/plaintiff. Failing which, the trial Court should execute the
sale deed in favour of the respondent/plaintiff.
13. Accordingly, this Appeal Suit is partly allowed. There shall be no
order as to costs. Consequently, connected Miscellaneous Petition is closed.
15.07.2025
Index :Yes/No.
Neutral citation :Yes/No.
bsm
To,
1. The Additional District Court, Tiruvannamalai.
2.The Section Officer, V.R.Section, High Court, Madras.
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Dr.G.JAYACHANDRAN,J.
bsm
15.07.2025
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