Madras High Court
K.Perumal vs Sudha ... 1St on 4 June, 2025
S.A.No.534 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 23 / 10 / 2024
JUDGMENT PRONOUNCED ON : 04 / 06 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.534 OF 2021
AND
CMP NO.11147 OF 2021
K.Perumal ... Appellant / Appellant /
1st Defendant
Vs.
1.Sudha ... 1st Respondent/1st Respondent
Plaintiff
2.The Sub Registrar
Sub Registrar Office
Chetpet,
Thiruvannamalai District. ... 2nd Respondent / 2nd Respondent /
2nd Defendant
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
January 29, 2021 made in A.S.No.57 of 2017 on the file of the Additional
District Court (FTC), Arani, confirming the Judgment and Decree dated
December 5, 2013 made in O.S.No.89 of 2007 on the file of the Sub
Court, Arani.
Page No.1 of 18
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S.A.No.534 of 2021
For Appellant : Mr.Thilageswaran
for Mr.N.Elumalai
For Respondent-1 : Mr.Ralph V. Manohar
For Respondent-2 : Mrs.R.Anitha
Special Government Pleader
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated January 29, 2021 passed in A.S.No.57 of 2017 by the
'Additional District Court (FTC), Arani' ['First Appellate Court' for
brevity], whereby the Judgment and Decree dated December 5, 2013
passed in O.S.No.89 of 2007 by the ‘Sub Court, Arani ' ['Trial Court' for
brevity] was confirmed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF'S CASE
3. Originally, the Suit Property belonged to the first
defendant. The first defendant entered into an Agreement for the sale of
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the Suit Property to the plaintiff on January 6, 2007, for Rs.1,20,000/-. As
per the Sale Agreement, the Sale Deed was to be executed by the first
defendant before March 2007. Accordingly, an advance amount of Rs.
15,000/- was paid by the plaintiff to the first defendant. According to the
plaintiff, she was always ready and willing to perform her part of the
contract, but the first defendant refused to receive the balance amount of
the consideration and evaded executing the Sale Deed. Therefore, the
plaintiff sent a legal notice dated November 16, 2007, to the first
defendant. The first defendant failed to respond and did not come forward
to execute the Sale Deed. Since the first defendant failed to perform his
part of the contract, the plaintiff filed a Suit for specific performance and
for a permanent injunction restraining the first defendant from alienating
the Suit Property to third parties and injunction restraining the Sub
Registrar, Chetpet (second defendant) from registering any document
pertaining to the Suit Property, if any alienation is effected by the first
defendant in favour of third parties.
FIRST DEFENDANT'S CASE
4. The first defendant filed a written statement denying the
allegations made by the plaintiff. It is specifically averred that the
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Agreement for the sale of the Suit Property was entered into on January 6,
2007, and the Sale Deed was to be executed before the end of March
2007, as the first defendant was in dire need of money to discharge family
debts and purchase cattle. Hence, time is the essence of the Sale
Agreement. But, the plaintiff was not ready and willing to purchase the
Suit Property within the stipulated time. Consequently, the first defendant
has incurred loss and could not repay his debts. Hence, the plaintiff is not
entitled to the discretionary relief of specific performance of the contract.
Thus, the first defendant sought to dismiss the Suit.
SECOND DEFENDANT'S CASE
5. The second defendant was called absent and remained ex-
parte before the Trial Court.
TRIAL COURT
6. At trial, plaintiff was examined as P.W.1 and one
Pichaiappan, father of the plaintiff, was examined as P.W.2 and Ex-A.1 to
Ex-A.13 were marked on the side of the plaintiff. The 1st defendant was
examined as D.W.1 and one Selvaraj was examined as D.W.2 and no
document was marked on the side of the defendants.
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7. After full-fledged trial, the Trial Court concluded that time
was not the essence of the contract and that the plaintiff was ready and
willing to perform her part of contract. Accordingly, it partly-decreed the
Suit granting the relief of specific performance and dismissing the Suit
qua injunction.
FIRST APPELLATE COURT
8. Feeling aggrieved, the 1st defendant preferred an appeal
before the First Appellate Court, which, after hearing both sides,
concurred with the findings of the Trial Court and dismissed the appeal as
devoid of merits confirming the Judgment and Decree of the Trial Court.
SECOND APPEAL
9. Feeling aggrieved, the 1st defendant has preferred the
present Second Appeal under Section 100 of the Code of Civil Procedure,
1908 and it was admitted on August 6, 2021 on the following substantial
questions of law:
"A. Whether the Courts below were correct in law in failing to
consider the fact that time was the essence of the contract
particularly taking into account the recitals of Ex.A.1?
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B. Whether the Courts below were correct in law in coming
to the conclusion that the plaintiff was ready and willing
to perform her part of the contract particularly when the
plaintiff has entered into other agreement of sale and her
bank balance does not show the necessary balance
particularly in respect of Ex.A.7 and Ex.A.8?
C. Whether the Courts below were correct in ignoring the
conduct of the plaintiff especially when the suit is one for
specific performance?"
ARGUMENTS:
10. Mr.Thilageswaran, learned Counsel for the appellant / 1st
defendant would argue that the Trial Court as well as the First Appellate
Court miserably failed to consider that time is the essence of the contract
and that the plaintiff was not ready and willing to perform her part of
contract within the stipulated period. Further, the Trial Court as well as
the First Appellate Court failed to consider the fact that the plaintiff
issued notice only on November 16, 2007 and filed the Suit on December
12, 2007. The Trial Court as well as the First Appellate court, erred in
holding that the plaintiff was ready and willing to perform his part of the
contract and decreeing the Suit. Accordingly, he prayed to allow the
Second Appeal, and set aside the Judgment and Decree passed by the
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First Appellate Court as well as the Trial Court.
10.1. He would rely on the following decisions:
(i) Judgment of Hon'ble Supreme Court in Chand Rani Vs. Kamal
Rani, reported in (1993) 1 SCC 519;
(ii) Judgment of Hon'ble Supreme Court in Katta Sujatha Reddy
Vs. Siddamsetty Infra Projects, reported in (2023) 1 SCC 355.
11. Per contra, learned Counsel for the 1st respondent /
plaintiff would contend that the Trial Court as well as the First Appellate
Court rightly concluded that time is not the essence of contract viz., Ex-
A.1 – Sale Agreement. Further, the plaintiff was always ready and willing
to perform her part of contract. Further, the 1st defendant did not deny the
buying capacity of the plaintiff. The plaintiff purchased some other
properties under Ex-A.9 to Ex-A.12 during the relevant time and the said
fact would establish that the plaintiff was having sufficient income and
wherewithal to purchase the Suit property within the stipulated period.
The Trial Court as well as the First Appellate Court after considering the
evidence and documents has rightly arrived at a decision. There is no
warrant to interfere in the said decisions. There is no question of law
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much less substantial question of law involved in this appeal.
Accordingly, he prayed to dismiss the Second Appeal.
11.1. He would rely on the following decisions:
(i) Judgment of Hon'ble Supreme Court in Chand Rani Vs. Kamal
Rani, reported in CDJ 1979 SC 248;
(ii) Judgment of Hon'ble Supreme Court in A.Kanthamani Vs.
Naseer Ahmed, reported in (2023) 1 SCC 355.
DECISION
12. This Court has considered the submissions made on either
side and perused the evidence available on record.
13. Ex-A.1 is the Sale Agreement entered between the
plaintiff and the first defendant whereby the first defendant agreed to sell
the Suit property to the plaintiff. Sale price was fixed as Rs.1,000/- per
Cent. The total extent of Suit Property is approximately 1 Acre 20 Cents
[0.48 Hectares]. On the date of Sale Agreement, the first defendant
received a sum of Rs.15,000/- as advance. The balance sale price is
Rs.1,05,000/-. Three months’ time was agreed by the parties for
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performance. There is no dispute with regard to the aforesaid facts.
Time as essence of the contract
14. The first question is whether time is the essence of the
contract viz., Ex-A.1. It is settled law that in a Suit for specific
performance, in general, time is not essence of contract in respect of
immovable property, unless and until it is specifically agreed between the
parties. The intention of the parties is to be taken into account while
deciding whether time is essence of contract or not.
15. In this case, in Ex-A.1 it has been stated that the first
defendant intended to sell the Suit property to meet his urgent family
expenses. In his evidence as D.W.1, he has stated that he was in need of
money for the purpose of meeting out the marriage expenses of his
daughter. Relevant portion of Ex-A.1 – Sale Agreement reads thus:
'. . . tpf;fpiua xg;ge;jk; ahbjdpy; vd;
mtru epkpj;jk; FLk;g rpytpw;fhf fPH;fz;l
epyj;ij brd;l; 1f;F +gha; 1000-00
vGj;jhy; +gha; xU Mapuk; tPjk;
tpf;fpiuak; ngrp Kd;gzkhf +gha; 15000-
00 vGj;jhy; +gha; gjpide;jhapuk; kl;Lk;
bgw;Wf;bfhz;nld;. kPjp +gha; khh;r;R
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khjk; Koa gj;jpugjpt[ bra;J bfhs;s
ntz;oaJ jtpu ,e;j njjp eph;zaj;jpw;Fs;
gzk; fl;o gj;jpugjpt[ bra;a jtwpdhy; ePh;
fl;oa bjhif ,Hf;f nehpLk;. nkYk; ehd;
gj;jpu gjpt[ bra;a jtwpdhy; ehd; th';fpa
bjhiff;F ,Ukl';F fl;o tpLfpnwd;.
nkYk; ehk; tha;bkhHp fpiuak;
bra;Js;nshk;.'
15.1. The above recitals would show that the plaintiff was in
urgent need of money towards family expenses and only for that purpose,
he intended to sell the Suit property. Further, as stated supra, in his
evidence, he has deposed that he intended to sell the Suit property for the
marriage expenses of his daughter. Urgent family expenses includes one’s
son’s / daughter’s marriage expenses. These would clearly show that the
parties intended time to be the essence of the contract. Thus, the Trial
Court was not right in its findings that the first defendant introduced a
new plea viz., daughter’s marriage during his evidence and that time is not
the essence of contract. The First Appellate Court also failed to consider
the said aspects.
16. In Chand Rani’s Case relied on by either side, Hon'ble
Supreme Court held that, in general, there is no presumption as to time
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being an essence of a contract for sale of immovable property. Further, it
was held that even if time is not an essence of the contract, the Court may
infer that it is to be performed in a reasonable time if the conditions are so
evident and that such conditions include the express terms of the contract,
nature of property and the attending circumstances. In the case on hand,
there is an express mention that the sale is to meet out urgent family
expenses. Further, D.W.1 / first defendant has also deposed that the sale
was to meet out his daughter’s marriage expenses. Notice was issued by
plaintiff only in November 2007 i.e., after a delay of 8 months. The delay
is not reasonable considering the fact that the purpose of the sale was to
meet the urgent monetary requirement of first defendant daughter’s
marriage. The plaintiff, who contends that she was ready and willing to
perform his part of Ex-A.1 during the stipulated time period and it was the
first defendant who was evasive, ought to have been proactive and issued
a Notice as soon as the time period prescribed in the contract came to an
end, but she failed to do.
17. Originally the case of the plaintiff is that the plaintiff was
ready and willing to perform her part of contract as per the terms of the
agreement and tendered the balance sale price within the stipulated period
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i.e., three months from the date of execution of Ex-A.1, but the first
defendant refused to execute the Sale Deed. But during cross
examination, P.W.1 / plaintiff has introduced a new plea that the first
defendant agreed to sell some other 40 Cents which is being enjoyed by
him along with the Suit Property. The said fact was not stated in the plaint
pleadings as well as in Ex-A.2 - Notice. Moreover, the Suit Property has
been sub-divided as 70/23, and measures 1.18 Acres (0.48 Hectare). There
is no evidence available on record to show that the first defendant was
enjoying an extent of 1 Acre 60 Cents i.e., the Suit Property along with
the said 40 Cents. Further, there is no evidence available on record to
show that the first defendant delayed the execution of Sale Deed by
stating that he would purchase 40 Cents from Subramani and thereafter,
transfer the same to the plaintiff along with the Suit Property. Moreover,
the plaintiff had purchased the said 40 Cents from the said Subramanian
on February 5, 2009 by paying consideration, vide Ex-A.11 – Sale Deed
and it is seen that the property covered in Ex-A.11 i.e., said 40 Cents, is in
a separate Survey Number viz., Survey No.70/29. It is settled law that
without pleadings, any amount of oral evidence is of no use. Hence, the
Trial Court rightly arrived at a finding that the new plea raised by the
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plaintiff is untenable in law.
18. The new plea is untenable in law, and there is no other
reason assigned by the plaintiff for having waited till November 2007 for
issuing Ex-A.2 – Notice. As stated supra, she ought to have proactively
issued Notice soon after the completion of the prescribed time period,
when according to her the first defendant was not ready. Hence, Chand
Rani’s Case does not come to the aid of the plaintiff. Therefore, this
Court concludes that the parties to Ex-A.1 had agreed / intended that time
is the essence of contract for Ex-A.1 - Sale Agreement. Accordingly,
substantial question of law (A) is answered in favour of the appellant /
first defendant and against the respondent / plaintiff.
Readiness and Willingness
19. As already stated, date of Ex-A.1 Sale Agreement is
January 6, 2007. The period for performance of contract is end of March,
2007. Notice was issued on November 16, 2007. There is no acceptable
evidence available on record to show that on or before March 30, 2007,
the plaintiff approached the first defendant and tendered the balance sale
consideration calling upon to execute Sale Deed. Notice was issued on
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November 16, 2007 i.e., after the stipulated period in the Sale Agreement.
The burden is upon the plaintiff to prove that she approached the first
defendant along with the sale price and called upon to execute the Sale
Deed. In this connection, the plaintiff failed to examine any person
connected with the Sale Agreement. The plaintiff’s side examined P.W.2
who is none other than the plaintiff's father. He deposed that he received
some compensation amount from Award of Motor Accidents Claims
Tribunal and gave the same to his only daughter / plaintiff. He has further
deposed that at the time Ex-A.2 – Legal Notice to first defendant,
plaintiff’s bank balance was Rs.2686/- only.
20. This Court has perused Ex-A.7 - Bank Passbook of P.W.2
/ plaintiff’s father as well as Ex-A.8 – Bank Passbook of plaintiff. Ex-A.8
- Passbook of the plaintiff would show that a sum of Rs.2,50,000/- was
deposited on November 27, 2006 by way of a cheque and the same was
withdrawn by her on the same day. Again a sum of Rs.2,52,359/- was
credited into plaintiff's account on January 29, 2007 and the same was
withdrawn on the same day by the plaintiff. It is an admitted fact that the
plaintiff purchased some other properties vide Ex-A.9 to Ex-A.12
between February 1, 2007 and September 9, 2012. At the end of day on
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January 29, 2007, Rs.27,156/- was lying on the plaintiff account, and on
February 3, 2007, Rs.25,000/- was withdrawn and thus, the lying balance
went down to Rs.2,156/- which remained the same until the deposit of
Rs.500/- on June 25, 2007.
21.Ex-A.7 – plaintiff's father Passbook, a sum of Rs.44,161/-
was only lying on his bank account as on November 2006. To be noted,
the plaintiff had advanced only Rs.15,000/- and the remaining sale
consideration to be paid is Rs.1,05,000/-. From the above, it is clear that
there was no sufficient balance in the bank accounts of the plaintiff and
her father to perform their part of the contract. There is no evidence
available on record to show that the plaintiff was ready and willing to
perform her part of contract within the stipulated period. Further, the first
defendant has deposed that the plaintiff issued notice on November 16,
2011 and immediately, filed the Suit leaving no time for him to send a
reply notice. To be noted, the Suit was filed on December 12, 2007.
22. In A.Kanthamani’s Case, Hon'ble Supreme Court held
that the purchaser may not have money ready with him always to prove
his readiness and willingness which could also be gathered from the
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attending circumstances. In this case, as stated supra, there is no evidence
available on record to show that the plaintiff was ready and willing to
perform her part of the agreement. She failed to send Notice within or
shortly after the stipulated period and the reason assigned for the same is
not plausible as discussed above. P.W.2, who is none other than the
plaintiff’s father, is not an independent witness and his evidence about the
plaintiff’s readiness and willingness does not inspire the confidence of
this Court. In these circumstances, wherewithal of the plaintiff gains
significance. Hence, this Court is of the view that A.Kanthamani’s Case
is not applicable to the facts and circumstances of this case.
23. Considering the cumulative facts and circumstances of
the case, this Court is of the view that the plaintiff was not ready and
willing to perform her part of contract within the agreed time period as
per Ex-A.1. The substantial questions of law (B) and (C) are answered in
favour of the first defendant and against the plaintiff.
24. Further, it appears that the plaintiff had deposited the
balance sale consideration before the Court. If so, the plaintiff is entitled
to claim the same along with any accrued interest thereon.
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RESULT
25. In the result, the Second Appeal is allowed. Decree and
Judgment passed by the First Appellate Court as well as the Trial Court
are set aside. The Suit is dismissed. Considering the facts and
circumstances of the case, the parties shall bear their own costs.
Connected Civil Miscellaneous Petition is closed.
04 / 06 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
To
1.The Additional District Court (FTC)
Arni.
2.The Sub Court
Arni.
3.The V.R. Section
Madras High Court, Madras.
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R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.534 OF 2021
04 / 06 / 2025
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