Madras High Court
T. Kalivalayan @ Chinnakaruppan vs S. Parameswari on 24 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.No.588 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Appeal Suit No.588 of 2024
and
C.M.P. No.18333 of 2024
T. Kalivalayan @ Chinnakaruppan .. Appellant
Versus
S. Parameswari .. Respondent
Appeal Suit is filed under Section 96 of C.P.C against the judgment and
decree dated 30.04.2024 made in O.S.No.96 of 2022 on the file of the learned
III Additional District Judge, Erode at Gobichettipalayam.
For Appellant : Mr.Roshan Atiq
For Respondent : Mr.P.Tamilavel
JUDGMENT
This Appeal Suit had been filed against the judgment and decree dated
30.04.2024 made in O.S.No.96 of 2022 on the file of the learned III Additional
District Judge, Erode at Gobichettipalayam.
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2. The learned Counsel for the Appellant submitted that the
Appellant herein is the Defendant in the suit filed by the Respondent/Plaintiff
for the relief of Specific Performance of the agreement for Sale dated
13.08.2018 and for permanent injunction in O.S.No.96 of 2022. The Trial
Court had decreed the suit for Specific Performance in O.S.No.96 of 2022 and
against which this Appeal has been filed.
3. For the sake of convenience, the parties are described as it is in
the suit.
4. Brief facts of the case are as follows:
4.1. The Defendant is the absolute owner of the suit property by virtue
of a release deed dated 09.04.2012. The Defendant had entered into an
agreement for sale dated 13.08.2018 with the Plaintiff for a total sale
consideration of Rs.14,10,000/- and on the date of the agreement for sale on
13.08.2018, the Plaintiff had paid Rs.10,00,000/- towards advance sale
consideration and had further agreed to pay the balance sale consideration
within 4 months (i.e.13.12.2018). On failure to pay, it was agreed that the
advance sale consideration would be forfeited and the sale agreement
terminated.
4.2. The Plaintiff did not come forward and pay the balance sale
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consideration within the time stipulated in the sale Agreement and further no
consequent actions were also taken by the Plaintiff and therefore, the sale
agreement got terminated on 13.12.2018. When this being so, suddenly on
27.08.2020, after a period of 1 year 8 months and 7 days from the expiry of the
time stipulated in the sale agreement, the Plaintiff had sent a legal notice dated
20.08.2020, demanding to enforce the sale agreement and subsequently again,
no actions were taken by the Plaintiff and thereafter on 24.01.2022, the instant
suit was filed after a period of 3 years 1 month and 11 days from the expiry of
the sale agreement.
4.3. The Plaintiff has filed the instant suit on the premise that the sale
agreement could not be enforced within the timeline stipulated, as the
Defendant delayed on the guise of producing the original parent document and
further did not measure and fix the boundaries of the suit property. In essence,
the Plaintiff has shifted the blame on the Defendant, for non-performance of
the sale agreement and thereby seeks a decree for specific performance.
5. The execution of the sale agreement dated 13.08.2018 has been
admitted by the Defendant and therefore, the issues for determination are:
a. Whether the Plaintiff was ready and willing to perform the contract?
b. Whether time is the essence of the contract for performance?
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6. The learned Counsel for the Appellant submitted that the Plaintiff
was unwilling to perform the sale agreement dated 13.08.2018 throughout the
period of the sale agreement and even after it. It is pertinent to point out that
the Plaintiff has issued the legal notice for performance, after a period of 1
year 8 months and 7 days and has filed the instant suit after a period of 3 years
1 month and 11 days, from the expiry of the stipulated timeline in the sale
agreement dated 13.08.2018. There was no correspondence between
13.12.2018 and filing of the suit on 24.01.2022, apart from the legal notice.
These facts clearly elucidate the unwillingness of the Plaintiff regarding the
performance of the contract.
7. Further, the Plaintiff has not proved her readiness to perform the
sale agreement. The Plaintiff has not deposited the balance sale consideration
before the Trial Court and further the Plaintiff has only produced the bank
statement from 07.11.2018 to 07.12.2018, even though the suit has been filed
on 24.01.2022. The said facts squarely proves that the Plaintiff was not ready
to perform the sale agreement. There are no other evidence that has been
produced by the Plaintiff to prove her readiness and willingness to perform the
sale agreement.
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8. Also, the Plaintiff has not produced a single piece of evidence to
prove her readiness and willingness to perform the sale agreement, whereas
rather has shifted the blame on the Defendant for non-performance of the
contract, on the premise that the Defendant had delayed the execution of the
sale agreement by: -
a. not producing the original parent document, and
b. not measuring and fixing the boundaries of the suit property.
9. It is pertinent to point out that the Sale Agreement dated
13.08.2018 is completely silent on the so-called conditions of producing the
original parent document, measuring and fixing the boundaries of the suit
property by the Defendant, for performance of the contract. Inspite of the
same, the Plaintiff had made baseless and self-serving allegations to suit her
invalid rights. Moreover, there is not even a hint of evidence produced by the
Plaintiff to support the imposition of the so called conditions on the
Defendant. But whereas, the following evidence will prove that the Defendant
was in possession of the original parent document and that there was no
condition to measure and fix the boundaries of the suit property, thereby
negating the case of the Plaintiff in entirety.
10.1. The learned Counsel for the Appellant submitted regarding
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production of original of parent document that:
a. The endorsement made by the Sub Registrar on the original parent
document while registering the sale agreement dated 13.08.2018, clearly
proves that the Defendant was in possession of the orginal parent document
when the sale agreement deed dated 13.08.2018 was registered.
b. Further P.W-2, who is none other than the son of the Plaintiff, has
categorically admitted the availability of the original parent document during
the registration of the sale agreement and that it was verified by the Sub-
Registrar while registering the sale agreement, which is available in cross
examination of P.W-2 and it is held as follows:
"////th/rh/M/2 Md fpua xg;ge;jk; nghLtjw;F Kd;g[ jhth
brhj;jpw;Fz;lhd mry; Mtzj;ij ehd; ghu;j;njd;/ me;j
mry; MtzkhdJ fpua xg;ge;jk; gjpt[ bra;a[k;nghJ rhu;gjpth
su; th';fp ghu;j;J mjpy; nkw;Fwpg;g[ bra;J bfhLj;Js;shu; vd;
why; rupjhd;///"
c. Contrary to the averments in the Plaint, the Respondent has avered in
the counter filed before this Hon'ble Court that the said endorsement was made
during the cancellation of the sale agreement by the Appellant given in favour
of the one Avinasiappan in Ex.A-8, on the same day on 13.08.2018. It is
pertinent to point out that the verification of the original parent document is
made only during the registration of the sale agreement and not during
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cancellation of the sale agreement and the said averment is also against the
deposition of P.W-2.
d. Furthermore, the Appellant herein has also produced the original
parent document before the learned Trial Court in Ex.B-1.
10.2. The learnede Counsel for the Appellant submitted regarding
survey of the suit property that:
a. The recitals in the sale agreement does not mention the measuring and
fixing of the boundaries as a condition precedent to the performance of the
sale agreement. Baseless allegation without any proof has been made by the
Plaintiff to support her case.
b. Further P.W-2. who is none other than the son of the Plaintiff, has
categorically admitted that the Plaintiff did not request to measure and fix the
boundaries, which is available in the cross examination of P.W-2 and it is
extracted below:
"th/rh/M/2y; fz;l ruj;Jf;fis ehd; goj;J
ghu;j;Js;nsd;/ th/rh/M/2y; tHf;F brhj;ij fpiuj;jpw;F Kd;ghf
mse;J bfhLf;f ntz;Lk; vd;Wk;. mjw;Fupa K:y
Mtz';fis gpujpthjp jahu; bra;J bfhLf;f ntz;Lk; vd;Wk;
thrf';fs; VJkpy;iy/ brhj;ij eh';fs; fpiuak;
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th';fg;nghtjhy; eh';fs; me;j Mtz';fis nfl;ftpy;iy/"
The above said fact and evidence negates the claim of the Plaintiff that
the Defendant was delaying the execution of the sale deed to receive the
original parent document from the financier and to survey the property.
10.3. The learned Counsel for the Appellant regarding erroneous
findings of the Trial Court that:
a. The Trial Court has erroneously imposed the responsibility of
performance of the contract on the Defendant, based on unproven facts and
thereby had decreed the suit, inspite of the above said facts and evidence.
b. The Trial Court has erroneously held that time is not of essence to the
contract and thereby had found that specific performance cannot be denied on
the ground of delay in issuing the legal notice and delay caused in filing suit,
during Corona period, as it does not negate the readiness and willingness of
the Plaintiff for performance of the sale agreement.
c. It is also pertinent to point out that the legal notice dated 27.08.2020
was sent during the peak of Corona period and thereafter the suit was filed
after a delay of 1 year and 6 months. Therefore, the delay cannot be excused.
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d. The said finding of the Trial Court is against the principles laid down
by the Hon'ble Supreme Court of India in the matter of Saradamani
Kandappan Vs S.Rajalakshmi reported in (2011) 12 SCC 18 and in the matter
of Desh Raj &ors. Vs Rohtash Singh reported in (2023) 3 SCC 714 whereby
the Hon'ble Supreme Court of India has held that time is of essence in the
contract and specific performance cannot be granted if there is undue delay to
institute the suit.
e. The Trial Court ought to have seen that the sale agreement specifically
stipulates a timeline of 4 months and the further condition of forfeiture of the
advance sale consideration (on failure to pay the balance sale consideration)
after the stipulated time period clearly reflects that time is of essence of the
contract.
f. The Trial Court has erred in decreeing the suit on the ground that the
delay for performance of the sale agreement has been caused by the Defendant,
as the Defendant did not measure and fix the boundaries of the suit property,
though the Defendant had the said obligation, as the suit property was sub-
divided and boundaries were not specified in the sale agreement, and further
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the Defendant had not taken any steps to prove the availability of the original
parent document. The Trial Court ought to have seen that the sale agreement
does not contain any provision for production of original documents or for
measuring and fixing boundaries of the suit property. Sub-division of the suit
property and failure to mention the boundaries in the sale agreement does not
create an obligation on the Defendant, as the same was signed by the Plaintiff
without any objection. Further, if there is any trouble in identifying the suit
property, the Plaintiff would not have entered into the sale agreement with the
Defendant. Further, the Plaintiff had admitted in her cross examination that
there are no encumbrances over the suit property at the time of the sale
agreement. These issues have not been raised in the plaint. When that being
so, the Trial Court cannot presume obligations against the Defendant and
decree the suit on that basis.
g. Further, the trial Court ought to have considered that the evidence
categorically proves the availability of the original parent document and that
there is no condition to survey the suit property.
h. The Plaintiff has taken a contradictory stand with respect to the
performance of the sale agreement, wherein the Plaintiff on one hand states
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that the sale agreement could not be performed as the original documents has
not been produced by the Defendant and on the other hand states that the
Defendant is taking steps to sell the suit schedule property for a higher price
and also states in the suggestion in the cross examination of the Defendant that
the sale agreement could not be performed due to the death of the Defendants
sister. The multiple contradictory stands clearly invalidates the case of the
Plaintiff.
11. In support of his contention, the learned Counsel for the Appellant
relied on the reported decision in the cases of :
(i) Saradamani Kandappan vs. S.Rajalakshmi and Others reported
in MANU/SC/0717/2011, particularly in paragraphs 25 and 26 it is held as
follows:
“25. The reality arising from this economic change cannot continue to
be ignored in deciding cases relating to specific performance. The steep
increase in prices is a circumstance which makes it inequitable to grant the
relief of specific performance where the purchaser does not take steps to
complete the sale within the agreed period, and the vendor has not been
responsible for any delay or non-performance. A purchaser can no longer
take shelter under the principle that time is not of essence in performance of
contracts relating to immovable property, to cover his delays, laches,
breaches and `non-readiness'. The precedents from an era, when high
inflation was unknown, holding that time is not of the essence of the contract
in regard to immovable properties, may no longer apply, not because the
principle laid down therein is unsound or erroneous, but the circumstances
that existed when the said principle was evolved, no longer exist. In these
days of galloping increases in prices of immovable properties, to hold that a
vendor who took an earnest money of say about 10% of the sale price and
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agreed for three months or four months as the period for performance, did
not intend that time should be the essence, will be a cruel joke on him, and
will result in injustice. Adding to the misery is the delay in disposal of cases
relating to specific performance, as suits and appeals therefrom routinely
take two to three decades to attain finality. As a result, an owner agreeing to
sell a property for Rs.One lakh and received Rs.Ten Thousand as advance
may be required to execute a sale deed a quarter century later by receiving
the remaining Rs.Ninety Thousand, when the property value has risen to a
crore of rupees.
26. It is now well settled that laws, which may be reasonable and valid when
made, can, with passage of time and consequential change in circumstances,
become arbitrary and unreasonable.”
(ii) Desh Raj and Others vs. Rohtash Singh reported in
MANU/SC/1615/2022, particularly in paragraph 20 and 23, it is held as
follows:
“20. Before venturing into the aforementioned issue, we must highlight
that throughout the entire dispute, Appellants have taken a consistent stand of
time bound performance being an essence of the contract. They have
maintained that sale deed was needed to be executed necessarily on the Date
of Execution as agreed between the parties. It is unfortunate that all the
Courts below have failed to render a finding on this aspect despite the fact that
this was one of the key defenses taken by the Appellants in respect of the
prayer seeking specific performance.
23. At this juncture, we must note the decision of this Court in Citadel
Fine Pharmaceuticals v Ramaniyam Real Estates Private Ltd4 and
Saradamani Kandappan v S. Rajalakshmi5 wherein it was held that defense
under Section 55 of Contract Act is valid against anyone who is seeking the
relief of specific performance. The facts of the instant case make the
observations in Saradamini Kandappan6 even more pertinent, which are to
the following effect -
“36. The principle that time is not of the essence of contracts relating to
immovable properties took shape in an era when market values of immovable
properties were stable and did not undergo any marked change even over a
few years (followed mechanically, even when value ceased to be stable). As a
consequence, time for performance, stipulated in the agreement was assumed
to be not material, or at all events considered as merely indicating the
reasonable period within which contract should be performed. The assumption
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was that grant of specific performance would not prejudice the vendor
Defendant financially as there would not be much difference in the market
value of the property even if the contract was performed after a few months.
This principle made sense during the first half of the twentieth century, when
there was comparatively very little inflation, in India. The third quarter of the
twentieth century saw a very slow but steady increase in prices. But a drastic
change occurred from the beginning of the last quarter of the twentieth
century. There has been a galloping inflation and prices of immovable
properties have increased steeply, by leaps and bounds. Market values of
properties are no longer stable or steady. We can take judicial notice of the
comparative purchase power of a rupee in the year 1975 and now, as also the
steep increase in the value of the immovable properties between then and now.
It is no exaggeration to say that properties in cities, worth a lakh or so in or
about 1975 to 1980, may cost a crore or more now.”
12. The learned Counsel for the Respondent submitted that the
Appellant had entered into an agreement for sale on 13.08.2018 to sell the suit
schedule property for a sum of Rs.14,10,000/-. The Respondent had paid
Rs.10,00,000/- as advance on the date of agreement i.e on 13.08.2018 and the
said agreement was registered on the same day vide Document No. 2981/2018.
13. The Appellant had agreed to sell an extent of 3.01 Acres of land
out of 3.24 Acres. Whereas in the partition deed (Parental Document) executed
by Sadayammal and others in favour of the Appellant and registered as
Document No. 2704 of 2012, the total extent of the properties mentioned is
3.24 Acres which consists of three Survey numbers, namely Survey No.142/1-
0.09.0 Hectare, Survey No.142/5-0.49.0 Hectare and Survey No.142/8 -0.73.0
Hectare. Whereas the Appellant agreed to sell only the land in Survey
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No.142/5-0.49.0 Hectare and Survey No.142/8-0.73.0 Hectare. Therefore, if at
all the land is surveyed, sub divided and earmarked the boundaries of the
subject land, Respondent were unable to purchase the land mentioned in the
agreement. Despite of several requests made by the Respondent to the
Appellant to measure and earmark the land, the Appellant had not acted upon.
14. The Appellant had not produced parental document which is
marked as Ex.D-1 by the Appellant. The contention of the Appellant that the
original documents has been produced before the Sub-Registrar at the time of
executing the sale agreement and that the same was verified by the Sub-
Registrar and endorsement was made, is false. It is pertinent to mention that
the Appellant has mortgaged the subject property on 11.04.2012 in favour of
one Avinasiyappan under registered mortgage deed in Doc. No. 2706 of 2012.
And the said mortgage was cancelled on 13.08.2018, on the day on which
agreement for sale was made between the Appellant and the Respondent. The
endorsement was made in the original document by the Sub Registrar during
the cancellation of mortgage deed but not at the time of registration of sale
agreement. The said Avinasiappan had produced the parental document before
the Sub Registrar and got back the said document, as the Appellant did not pay
the outstanding balance due to Avinasiappan. Hence, Avinasiappan kept the
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original document with him. Since the parental document was with
Avinasiappan, he was not in a position to hand over the same to Respondent.
Therefore, the Appellant had adopted delayed tactics to execute the sale deed
as per sale agreement. As it is evident that the Appellant did not file the
original document, at the time of filing written statement, but the fact is that
the Appellant had not filed the original document as Ex.D-1 only at the time of
filing proof affidavit.
15. Order VIII, Rule 1 (1a) stated that "duty of Defendant to produce
documents upon which relief is claimed or relied upon by him - where the
Defendant bases his defence upon a document or relies upon any document in
his possession or power, in support of his defence or claim for set-off or
counter-claim, he shall enter such document in a list, and shall produce it in
Court when the written statement is presented by him and shall, at the same
time, deliver the document and a copy thereof, to be filed with the written
statement". It shows that the Appellant did not have the original document, till
filing proof affidavit.
16. The Defendant has admitted in his cross-examination that
“ xU g{kpia tpw;why; xU vy;iyf;fy;iy milahsk;
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fhl;o mse;J mj;J fhl;o tpw;fntz;Lk; vd;why; rupjhd;/
ve;j g{kpia mse;jhYk;; tl;lhr;rpau; mYtyfj;jpy; cs;s
ru;ntaiu itj;J Mtz';fspd; mog;gilapy; msf;f ntz;Lk;
vd;why; rupjhd;/ tpLjiy gj;jpuk; vGjpf;bfhLf;fg;gl;l
ehspypUe;J ,d;iwa njjp tiu fl;Ltjw;F eltof;if vJt[k;
vLf;ftpy;iy”
17. It clearly shows that the Appellant did not survey the land, since
the total extent of the lands are 3.24 Acres, whereas the Appellant agreed to
sell only an extent of 0.49.0 Hectare in Survey No. 142/5 and 0.73.0 Hectare
in Survey No.142/8, in total 3.01 Acres out of 3.24 Acre. Until or otherwise
boundaries had been fixed by the Appellant, the Respondent would be unable
to purchase the property and the Respondent would be unable to mention the
boundaries in the sale deed. Therefore, delay occurred on the part of the
Appellant due to non surveying the subject land in time.
18. The Respondent/Plaintiff was always ready and willing to
purchase the property since he paid 70 percent (Rs. 10,00,000/-) as advance
amount out of Rs. 14,10,000/-. In order to prove the same, the
Respondent/Plaintiff marked Ex.A-6 dated 17.11.2018 related to the Oriental
Bank of Commerce passbook in which the Respondent/Plaintiff had Rs.
6,00,000/- in his account. The same is also mentioned in the judgment wherein
it is stated that the Plaintiff had sufficient money during that period.
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19. The learned Counsel for the Respondent submitted that the
Respondent/Plaintiff made repeated requests to the Appellant to measure the
land and fix the boundaries to enable the Respondent to purchase the same.
Similarly, the Respondent requested the Appellant to hand over the parental
document to him. However, the Appellant had not done so in time, due to the
above said act, the delay had happened. The Appellant never sent any notice to
the Respondent/Plaintiff that he was ready and willing to execute the sale deed
within a period of four months from the date of agreement. Whereas the
Respondent had issued legal notice dated 27.08.2020, which was marked as
Ex. A-4. The same was admitted by the Appellant in the cross examination as
under:
“thjp. tHf;fwp"u; th/rh/M/3d; K:yk; vdf;F mwptpg;g[
mDg;gpdhu; vd;why; rupjhd;/ me;j mwptpgi ; g ehd;
bgw;Wf;bfhz;nld;/ nkw;go mwptpg;gpy; jhth brhj;ij mse;J
mj;J fl;o bfhLf;f ntz;Lk; vd;W thjp brhy;ypa[s;shu;
vd;why; rupjhd;/ Mdhy; ehd; mt;thW bra;atpy;iy/
mtpdhrpag;gdplk; bfhLj;j mry; Mtz';fis
th';fptpl;Ou;fsh vd;gJ gw;wpa[k; mwptpg;gpy; brhy;ypa[s;shu;
vd;why; mJ gw;wp vdf;F bjupahJ”
It clearly shows that the Appellant did not take any steps to survey the
land.
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20. The Respondent/Plaintiff has filed a suit in O.S. No. 96 of 2022
on the file of the learned III Additional District Judge, Erode at
Gobichettipalayam against the Appellant for specific performance to enforce
the agreement dated 13.08.2018. The Covid Pandemic started from
23.03.2020 to 2022. The Hon'ble Supreme Court in Suo Motu Writ Petition in
C. No. 3 of 2020 the limitation period of filing the suit or other proceedings
has been extended periodically and particularly the period from 15.03.2020 till
28.02.2022 shall stand excluded for the purpose of limitation as may be
prescribed by any general or special law in respect of all judicial or quasi-
judicial proceedings. The Respondent/Plaintiff has instituted a suit on
24.01.2022 which is within the limitation period.
21. The trial Court had appreciated the evidence and documents of the
Plaintiff and passed a well discussed judgment by considering all the aspects
mentioned in the plaint and written statement.
22. The learned Counsel for the Respondnet relied on the reported
decision in the case of Chandan Rani Vs. Kamal Rani reported in 1993 1
SCC 519 wherein it is clearly and categorically stated that time is not essential
where immovable property is concerned. This basic judgement has been
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followed by all the Courts in cases of specific performance. In paragraph 23.
"in Indira Kumar Sheolal Kapoor in paragraph 6, it was held that under the
law it is well settled that in transaction of sale of immovable property time is
not essence of contract." Similarly in the paragraph 25, it is held as, "from an
analysis of above case law it is clear that in the case of sale of immovable
property there is no presumption as to time being the essence of contract.
Even if it is not of the essence of the contract, the Court may infer that it is to
be performed in a reasonable time if the conditions are evident.
1. from the express terms of contract
2. from the nature of the property and
3. from the surrounding circumstances, for example the object of
making the contract"
Here is a case that it is an agricultural property, therefore, the market value of
the property would not increase in the short period.
22.1. Further the Supreme Court further observed that,
"The construction is, and must be, in equity the same as in a
Court of law. A Court of equity will indeed relieve against, and
enforce, specific performance, notwithstanding a failure to keep
the dates assigned by the contract, either for completion, or for
the steps towards completion, if it can do justice between the
parties, and if (as Lord Justice Turner said in Roberts v. Berry)
there is nothing in the 'express stipulations between the parties,
the nature of the property, or the surrounding circumstances'
which would make it inequitable to interfere with and modify the
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legal right. This is what is meant, and all that is meant, when it is
said that in equity time is not of the essence of the contract. Of
the three grounds.... mentioned, by Lord Justice Turner express
stipulations' requires no comment. The 'nature of property' is
illustrated f by the case of reversions, mines, or trades. The
surrounding circumstances must depend on the facts of each
particular case."
22.2. In Govind Prasad Chaturvedi v. Hari Dutt Shastri following the
above ruling it was held at pages 543-544: (SCC para 5)
"... It is settled law that the fixation of the period within which the
contract has to be performed does not make the stipulation as to time the
essence of the contract. When a contract relates to sale of immovable
property it will normally be presumed that the time is not the es- sence of the
contract. [Vide Gomathinayagam Pillai v. PallaniswamiNadar (at p. 233).] It
may also be mentioned that the language used in the agreement is not such as
to indicate in unmistakable terms that the time is of the essence of the
contract. The intention to treat time as the essence of the contract may be
evidenced by circumstances which are sufficiently strong to displace the
normal presumption that in a contract of sale of land stipulation as to time is
not the essence of the contract."
Therefore, time is not of essence to the contract where immovable property is
concerned.
Points for determination:
1. Whether the suit for specific performance is maintainable
after three years from the date of execution of the registered
sale agreement deed?
2. Whether the judgment of the learned III Additional District
Judge, Erode at Gobichettipalayam in O.S.No.96 of 2022 dated
30.04.2024 is erroneous warranting interference by this Court?
3. Whether the Plaintiff is entitled to the relief of specific
performance of contract when he had filed the suit belatedly
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after three years?
4. Whether the Appeal is to be allowed and the suit for specific
performance filed by the Plaintiff is to be dismissed?
5. To what relief the Plaintiff is entitled?
23. Heard the learned Counsel for the Appellant Thiru. Roshan Atiq
(Defendant in O.S.No.96 of 2022 before the learned III Additional District
Judge, Erode at Gobichettipalayam). Heard the learned Counsel for the
Respondent Mr.P.Tamilavel. Perused the original records in O.S.No.96 of 2022
on the file of the learned III Additional District Judge, Erode at
Gobichettipalayam.
24. The Appeal is preferred by the Defendant in O.S.No.96 of 2022
against the grant of decree by the learned III Additional District Judge, Erode
at Gobichettipalayam in favour of the Plaintiff (decree for specific
performance of contract without proper appreciation of evidence).
25. On perusal of the registered sale agreement deed marked as Ex.A-
2 on the side of the Plaintiff, it is found that the suit was instituted by the
Respondent in the Appeal as Plaintiff seeking relief of specific performance of
contract for sale of the property. As on the date of entering the sale agreement
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dated 13.08.2018, the sale price was fixed at Rs.14,10,000/-. The sale
agreement was registered with the Sub Registrar, Gobichettipalayam. On the
date of sale agreement, an advance amount of Rs.10,00,000/- was paid by the
Plaintiff. As per the sale agreement deed, the Plaintiff had to pay the balance
amount of Rs.4,10,000/- within a period of 4 months. The Defendant shall not
execute the sale deed if the Plaintiff fails to pay the balance amount of
Rs.4,10,000/- within four months upon which the Plaintiff shall forfeit the
money already paid to the Defendant. As per the agreement, if the Plaintiff is
ready and willing to pay the balance of sale consideration within time
specified and the Defendant is not executing the sale deed, then the Plaintiff is
entitled to approach the Court for execution of the sale deed.
26. The Plaintiff is referred to as 2nd party and the Defendant is
referred to as 1st party. Except these two recitals, there are no other recitals in
the sale agreement deed.
27. As per the plaint averments, the suit property belongs to
Defendant through Document Nos. 1735 of 1934 and 1853 of 1947 which
were registered before the Sub Registrar, Punjai Puliampatti and the release
deed vide Doc. No.2704 of 2012 before the Sub Registrar, Punjai Puliampatti.
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The Defendant approached the Plaintiff to sell the suit property for a total sale
consideration of Rs.14,10,000/-. Since the Defendant's original document was
with the Financier, where the Defendant had borrowed a sum of Rs.5,00,000/-,
the Defendant had asked an advance amount of Rs.10,00,000/- only for
settling the same. The Defendant had entered into agreement of sale on
13.08.2018 stating that the Plaintiff was agreeing to sell the suit property for a
sum of Rs.14,10,000/-. On the date of sale agreement deed dated 13.08.2018,
the Plaintiff had paid an advance of Rs.10,00,000/- and the same was adjusted
towards the sale consideration. The agreement was registered before the Sub
Registrar, Punjai Puliampatti as Document No.2981 of 2018 and it was agreed
by both the parties that the balance sale consideration of Rs.4,10,000/- was to
be paid within a period of four months from the date of execution of sale
agreement. Within four months period, the Plaintiff should pay balance sale
consideration of Rs.4,10,000/- to complete the sale deed. The Plaintiff was
always ready and willing to pay the balance sale consideration, within the
stipulated time period as agreed and undertook to pay the same immediately on
execution of sale deed in his name. But the Defendant had not come forward
to produce the original sale deed before the Sub Registrar, Punjai Puliampatti.
The Defendant had not come forward to fix the four boundaries of the suit
property in the presence of the Plaintiff, hence time was delayed. The
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Defendant had not produced original property tax book, Patta, Chitta and
Encumbrance Certificate. From the date of the Defendant’s title deed till the
date of execution of the sale agreement, the Defendant represented that the
original document was not yet received from the Financier by the Defendant.
Whenever the Plaintiff asked the Defendant to come for registration, the
Defendant had represented that the original document was not received by the
Defendant from the Financier and sought extension of time. The Plaintiff was
always ready and willing to purchase the property. The Plaintiff had also
contacted the Defendant over phone several times and in person to execute the
sale deed after measuring and fixing the four boundaries of the suit property
on receiving the balance sale consideration. Since the Defendant had not
executed the sale deed as per the terms of the contract, the Plaintiff was forced
to issue legal notice dated 20.08.2020 directing the Defendant to come to the
Sub Registrar Office and to execute the sale deed within a week from the date
of receipt of the notice, failing which the Plaintiff will be constrained to take
legal action for specific performance of contract and for other reliefs for which
the Defendant will be held liable for cost and consequences.
28. As per the written statement, it is the contention of the Defendant
that the Plaintiff was not ready and willing to perform his part of the Contract.
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The Defendant disputed the claim of the Plaintiff in the plaint that the
Defendant sought time to obtain original document from the Financier after
settling the dues to the Financier for Rs.5,00,000/-. The claim made by the
Plaintiff that the Plaintiff was ready and willing to pay the balance of sale
consideration of Rs.4,10,000/- right from the date of agreement for sale was
also disputed by the Defendant. The claim made by the Plaintiff that the
Defendant sought time to obtain the original deeds from the Financier for
execution of the sale deed was also denied.
29. It is the contention of the Defendant in the written statement that
the suit is barred by limitation, lapses, flaws and latches of the Plaintiff.
Therefore, the Defendant had in the written statement sought dismissal of the
suit.
30. Based on the pleadings of both parties, the learned III Additional
Judge, Erode had framed the following issues:
1. Whether the sale agreement dated 13.08.2018 is true, valid and
binding on the Defendant?
2. Whether the Plaintiff was ready and willing to perform his part
of the contract?
3. Whether the Plaintiff is entitled to the relief of specific
performance of contract?
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4. Whether the Plaintiff is entitled to the relief of permanent
injunction?
5. Whether time is the essence of the contract?
6. To what relief, the Plaintiff is entitled?
31. The Plaintiff had instituted the suit for specific performance of
contract for sale and for permanent injunction restraining the Defendant from
encumbering the suit property and for cost.
32. The Plaintiff Parameshwari examined herself as P.W-1. Her son
Ramesh Kumar was examined as P.W-2. During the evidence of Plaintiff as
P.W-1, the documents in support of the claim of the Plaintiff were marked as
Ex.A-1 to Ex.A-8. Ex.A-1 is the certified copy of the release deed dated
09.04.2012 in favour of the Defendant by Sadaiammal and others. Ex.A-2 is
the sale agreement deed entered into between the Plaintiff and the Defendant
dated 13.08.2018 which was registered with the Sub Registrar, Punjai
Puliampatti. Ex.A-3 is the pre-suit notice issued on behalf of the Plaintiff
directing the Defendant to come and execute the sale deed dated 20.08.2020.
Ex.A-4 is the acknowledgment card dated 27.08.2020 acknowledging the
receipt of the legal notice on behalf of the Plaintiff by the Defendant. Ex.A-5
is the certified copy of the sale deed executed by one Nagalakshmi in favour of
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Venkatesh. Ex.A-6 is the bank passbook of the Plaintiff dated 17.11.2018 as
proof of the claim of the Plaintiff that he was always ready and willing to
perform his part of the contract. Ex.A-7 is the copy of the sale agreement deed
between Defendant and one Avinasiappan dated 11.04.2012. Ex.A-8 is the
revocation of the sale agreement deed between Defendant and Avinasiappan
dated 13.08.2018. On behalf of the Defendant, the Defendant examined
himself as D.W-1. One Varadarajan was examined as D.W-2. The only
document filed on behalf of the Defendant was marked as Ex.B-1 which is the
release deed executed by Sadaiammal and Others dated 09.04.2012 in favour
of the Defendant.
33. During evidence, the Plaintiff had in her affidavit filed as
examination in chief as P.W-1, had stated the facts mentioned in the plaint. In
the cross examination on behalf of the Defendant, she had admitted that in the
sale agreement deed marked as Ex.A-2, there are no recitals mentioned about
the deposit of the original title deeds with any Financier. She had also admitted
that there are no recitals in the sale agreement deed regarding measuring the
suit property and identifying the boundaries marked in Ex.A-2. The pre-suit
notice was sent by Plaintiff only on 20.08.2020.
34. On perusal of the cause of action paragraph in the plaint, which is
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extracted below:
“11. The cause of action for the suit arose on 13.08.2018 when the
Defendant has registered deed document No.1735/1934 and 1853/1947,
which were registered before the Sub-Registrar Office, Punjai Puliampatti,
Erode District and Release deed Document No.2704/2012 which was
registered before the Sub-Registrar Office, Punjai Puliampatti, Erode District
on 13.08.2018 when the Plaintiff had entered into an agreement and the
Plaintiff paid an advance of Rs.10,00,000/- (Rupees Ten Lakhs) and within
the time period he agreed that he will fix the four boundaries and give the
necessary papers pertaining to the suit property and execute the sale deed
after receiving the balance sale consideration of Rs.4,10,000/- and on
subsequent dates: on 20.08.2020 when the Plaintiff has issued a legal notice
through his Counsel; When the Defendant received the same on 27.08.2020;
on subsequent dates when the Defendant attempting to alienate the suit
properties to third parties and the Plaintiff thwarted the attempt and will the
Defendant at any time can alienate the suit property and where the Defendant
at any time can alienate the suit property and where the suit property is
situated at Nallur Village, Bhavanisagar Union, Sathiyamangalam taluk,
Punjai Puliampatti, Erode District which is well within the jurisdiction of this
Hon'ble Court."
Regarding whether time is of essence of the contract in Issue-5, the learned
Judge had observed in the judgment that the original title deed of the
Defendant was in custody of one Avinasiappan. Therefore, the Defendant was
unable to handover the original title deeds to the Plaintiff within the time
stipulated by the Defendant. That is why the Plaintiff was unable to pay the
balance of sale consideration. Also the sale agreement did not contain the
exact measurements and boundaries. Therefore, it is the duty of the Defendant
to measure the same in the presence of the Plaintiff and execute the sale deed
with specific boundaries.
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35. On perusal of Ex.A-2, there is no such recitals. Therefore, the
observation of the learned Judge that time is not the essence of contract due to
the conduct of the Defendant and Plaintiff is without any support from the
recitals in Ex.A-2. If Ex.A-2 is to be enforced, the Plaintiff ought to have been
careful enough to execute the sale agreement deed with specific boundaries
and specific measurements. There is no such specific boundaries and specific
measurements in Ex.A-2. Ex.A-2 claims that the sale deed is to be executed
within four months after paying Rs.4,10,000/- to the Defendant. Also in the
sale agreement it is mentioned as -
f/r/142/5 be/g[/bcw/0/49/0 ,J g{uht[k;/
f/r/142/8 be/g[/bcw/0/73/0 ,J g{uht[k;/
that does not mean part of the survey field. The entire survey field extent is
given. Therefore, the observation of the learned Judge is without any evidence
to that effect.
36. If that be the case, there shall be recitals in Ex.A-1 that the
Defendant had to obtain the original title deed from the Financier, that the
Defendant has to measure the property with the help of a surveyor within four
(4) months. Only then the Defendant will be paid the balance of sale
consideration. In the alternate, the Defendant has to repay the advance amount
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already paid by the Plaintiff. There is no such recital in Ex.A-2. On perusal of
Ex.A-2 sale agreement, the recitals regarding description of property is clear.
What was agreed to be sold is entire extent of survey field No. 142/5 and
142/8. Then where is the question of measuring the properties to find out the
extent of property sold. Where is the necessity for identifying boundaries.
Therefore, the contention of the Defendant that the learned Judge erred in
granting specific performance of contract for sale of property in favour of the
Plaintiff by presumption instead of the evidence available through the
documents is found acceptable in the light of the recitals in Ex.A-1. Therefore,
the grant of decree by the learned III Additional District Judge, Erode at
Gobichettipalayam is found erroneous. Also the learned Judge claims that in
the intervening period, there was Corona lockdown. Therefore, the benefit of
the Corona lockdown is to be extended to the Plaintiff for enforcement of
contract. The Plaintiff had marked his bank pass book to show that she had the
resources to pay the balance of sale consideration.
37. On perusal of the plaint averments, it is found that the Plaintiff
had not sought refund of the advance amount as alternate relief. She had
insisted for execution of the sale deed in continuation of the sale agreement
deed. If the evidence of the Plaintiff is to be considered, the Defendant has to
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measure the property in the presence of the Plaintiff and mark the boundaries.
If that was the case, the Plaintiff should have insisted for the same, before ever
entering into the sale agreement.
38. In the cross examination, the Plaintiff had clearly admitted that
there is no such recitals in the sale agreement deed Ex.A-2 regarding
measuring the property in the presence of the Plaintiff and fixing the
boundaries. Also in the sale agreement there is no such recitals that the
Defendant has to obtain the original title deed from the Financier. The Plaintiff
had marked Ex.A-6, Bank pass book of the Plaintiff in Oriental Bank of
Commerce to prove her resources and also the prior sale agreement deed
executed by the Defendant in favour of one Avinasiappan dated 11.04.2012
and Ex.A-7 which was cancelled as per document marked as Ex.A-8 dated
13.08.2018. Ex.A-3, pre-suit notice was issued only on 20.08.2020 which is
beyond the period of limitation. The Plaintiff ought to have caused statutory
notice before 13.12.2018 seeking the Defendant to execute the sale deed and
the Plaintiff was within his discretion to institute the suit within 3 years from
13.12.2018. As observed by the learned Judge, lockdown was effected from
18.03.2020 till 20.06.2022. Government Offices functioned with skeleton
staff. There were restrictions regarding public being prevented from forming
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group in public places. If that is accepted, still the suit was instituted only in
the year 2022. Therefore, the claim of lockdown by the Plaintiff as well as its
acceptance by the learned Judge is found unacceptable in the absence of
issuance of statutory notice before the expiry of four months period by the
Plaintiff. The observation of the learned Judge that time is not the essence of
contract, is found unacceptable in the facts and circumstances of the case.
Therefore, the finding of the learned Judge that time is not essence of the
contract due to the conduct of the parties to the sale agreement itself is
erroneous. When there is absence of recital, the learned Judge arriving at a
conclusion that generally in matters of this nature the stipulated time is
flexible and that time is not essence of contract in sale agreement deeds in
cases of specific performance of contract itself is against the observations of
the Honourable Supreme Court in two judgments in the case of Saradamani
Kandappan and Others v. S.Rajalakshmi and Others and in the case of Desh
Raj and Others vs. Rohtash Singh.
39. It is to be noted that the sale agreement was in the year 2018. The
value of the property multiplied by geometric progression in the following
years. In the year 2022, it again multiplied. Therefore, granting of a decree by
the learned Judge in favour of the Plaintiff as per the sale agreement deed itself
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is erroneous. When the Plaintiff insists for measuring the property, there
should be a recital in Ex.A-2. But. there is no such recital. When the Plaintiff
was confronted regarding measuring the property with a specific boundaries
and fixing the boundaries, she would submit that there is no such recital
regarding issuance of statutory notice before the expiry of 4 months. She
would submit that she had been in regular contact with the Defendant on a
daily basis. Therefore, she did not issue notice. The said evidence is not found
acceptable.
40. On perusal of bank passbook of the Plaintiff, it is found that there
had been sufficient amount available with the Plaintiff, still the evidence of the
Plaintiff was not satisfactory regarding non issuance of statutory notice
immediately before expiry of four months period.
41. In the absence of specific recitals regarding measurement of the
property and handing over title deeds, the evidence of the Plaintiff is
unacceptable. In the absence of such evidence, the learned Judge granting a
decree based on presumption is found unacceptable and erroneous. Therefore,
the claim made by the Defendant in the written statement that the Plaintiff was
not ready and willing to perform her part of the contract is found probable in
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the light of the evidence available through the Plaintiff. The son of the Plaintiff
was examined as P.W-2. His evidence was supportive to his mother. On
perusal of his cross examination, it is found that he had denied the suggestions
on behalf of the Defendant regarding readiness and willingness regarding
recitals in Ex.A-2 sale agreement deed. Therefore, his evidence was not
supportive to the Plaintiff case. It is found that he does not have direct
knowledge of the disputed facts. In the absence of recitals in Ex.A-2, the
learned Judge granting a decree based on presumptions without specific
recitals in Ex.A-2 that time is not the essence of contract due to the conduct of
the parties in not handing over title deeds of the property from the Financier by
the Defendant and not measuring the property in the presence of the Plaintiff
marking the boundaries itself is found erroneous. The sale agreement is clear.
The entire extent of the survey field had been mentioned as the subject matter
of the sale agreement. Therefore, there is no necessity for marking boundaries.
The observation of the learned Judge that in matters of specific performance,
generally time is not the essence of contract is an outdated proposition not in
tune with the present days, where the value of the immovable property
multiplies every day and therefore, granting a decree for the value fixed in the
year 2018 as per judgment dated 13.04.2024 itself is against fairness, equity
and good conscience which governs the Civil Court in granting decree.
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42. After six years of insisting the Defendant to execute the sale deed
for the value fixed in 2018, in the absence of recitals in the sale agreement for
measuring the property for obtaining title deed from financier itself, is found
to be erroneous. Therefore, the judgment of the learned III Additional District
Judge, Erode at Gobichettipalayam is to be set aside.
43. In the absence of alternate prayer sought by the Plaintiff in the
suit, the suit has to be dismissed which is also not found fair. Therefore, this
Court grants alternate relief i.e. refund of the advance amount. The Civil Court
can always mould the relief. Therefore, the relief sought in the issue to what
relief the Plaintiff is entitled, the learned Judge ought to have moulded the
relief, thereby, granting the alternative relief of refund of the amount. In
Appeal, the Defendant seeks dismissal of the suit for specific performance.
The Suit that was instituted in the year 2022 by the Plaintiff is beyond the
period of limitation. Therefore, the Plaintiff is not entitled to the return of
advance amount. The Civil Court exercises its discretion, the principles of
fairness, equity and good conscience.
44. The Appellant has produced two judgments reported in
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Manupatra, one is Saradamani Kannappan Vs Rajalakshmi and another and
the other is Siddharth Mittal and another Vs Sonali Joon. In respect of the
Saradamani Kannaapan case, the facts is not applicable to the present case,
since the Plaintiff and Defendant had exchanged notices regarding the
enforcement of contract. Whereas the Appellant did not send any notice even
after lapse of four months. And even thereafter he did not reply to the legal
notice dated 27.08.2020 issued by the Respondent/Plaintiff. If the Appellant
really had any intention to execute the sale agreement, he would have replied
to the legal notice issued by the Respondent. The Appellant also admitted in
the cross examination that he received the legal notice. Therefore, at any point
of time, the Appellant was not ready to execute the sale deed. On the other
hand, the Respondent/Plaintiff had sufficient money during that period. The
other judgement produced by the Appellant is irrelevant to the present case.
The Respondent/Plaintiff had proved his case by marking documents of Ex.A-
1 to Ex.A-8 and also examined P.W-1 and P.W-2.
45. The ruling cited by the learned Counsel for the Respondent/
Plaintiff in the case of Chand Rani (Dead) by Legal heirs vs. Kamal Rani
(Dead) by Legal heirs reported in (1993) 1 Supreme Court Cases 519 is not
applicable to the facts of this case. In the reported case, the Defendant had
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undertaken to evict the tenant and handover vacant possession to the Plaintiff
within 10 days from the date of sale agreement. Also the purchaser has to pay
the balance of sale consideration within 10 days. Inspite of repeated notices by
the vendor, the vendee did not execute. In the reported decision, the Plaintiff
was not ready and willing to perform her part of the contract by paying Rs.
98,000/- the balance sale consideration within 10 days, inspite of repeated
notices by the vendor. Therefore, the suit for specific performance which was
decreed by the Court was set aside in Appeal by the High Court. The High
Court had set aside the decree of the trial Court for specific performance which
was upheld in the Appeal against which the Plaintiff filed Appeal before the
Honourbale Supreme Court. The Appeal was dismissed.
46. The reliance placed by the learned Counsel for the Respondent
will not help his case. The ruling cited by the learned Counsel for the
Appellant/Defendant is found applicable to the facts of this case. Particularly,
when there is absence of recitals regarding measurement of the property,
regarding release of the title deed from the Financier in the sale agreement.
Also in the sale agreement, it is clearly mentioned that the entire extent in the
respective survey number had been agreed for sale. There is no question of
identifying the boundaries, when the entire extent is sold. If the Plaintiff
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insisted for identifying boundaries, it shall find a place in the agreement.
Without there being any recitals, the evidence of the Plaintiff to that effect has
no evidentiary value. In that context, the claim made by the Plaintiff that the
balance of sale consideration was available with the Plaintiff and that the
Plaintiff was always in contact with the Defendant insisting for execution of
sale deed is found not acceptable in the light of the evidence. Particularly, the
institution of the suit in the year 2022 insisting for specific performance of
contract for sale entered in the year 2018 for an amount of Rs.14,10,000/-
cannot at all be accepted in the light of the reported rulings cited by the
learned Counsel for the Appellant/Defendant. Therefore, the Appeal is to be
allowed.
47. The assessment of the evidence by the learned III Additional
District Judge is not found proper as per the provisions of Indian Evidence
Act, Specific Relief Act and Indian Contract Act. Regarding the interpretation
of the evidence, when there is an absence of recitals, the learned Judge
granting relief based only on surmises, conjectures and presumptions cannot
be accepted in the light of the provisions of Indian Evidence Act. The claim
made by the Plaintiff in the witness box that due to intervening Corona period
they were unable to execute the sale deed is also found unacceptable.
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48. In the light of the above discussion, the points for determinations
1 to 4 are answered in favour of the Defendant as under:
Point for determination-1:
The suit for specific performance is not maintainable after three years
from the date of execution of the registered sale agreement deed.
Point for determination-2:
The judgment of the learned III Additional District Judge, Erode at
Gobichettipalayam in O.S.No.96 of 2022 dated 30.04.2024 is found erroneous
warranting interference by this Court.
Point for determination-3:
The Plaintiff is not entitled to the relief of specific performance of
contract when he had filed the suit belatedly after three years.
Point for determination-4:
The Appeal is to be allowed partly and the suit for specific performance
filed by the Plaintiff is modified.
Point for determination-5:
However, even though the Plaintiff is not entitled to any relief,
considering the principles of equity, the Defendant is directed to repay the
advance amount. Point for determination-5 is answered partly in favour of
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Plaintiff in equity only.
In the result, this Appeal Suit is partly allowed thereby the decree
dated 30.04.2024 granted in O.S.No.96 of 2022 by the learned III Additional
District Judge, Erode at Gobichettipalayam, is modified as Defendant is
directed to repay the advance amount of Rs.10,00,000/- under Ex.A-2, with
interest at the rate of 12% per annum from the date of filing of the suit
(24.01.2022) till the date of decree (30.04.2024) before the trial Court and 6%
per annum from the date of decree in the trial Court till the date of realisation.
No costs. Consequently, connected miscellaneous petition is closed.
24.06.2025
Shl/srm
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
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To
1. The III Additional District Court,
Gobichettipalayam.
2. The Section Officer,
V. R. Section,
High Court Madras.
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SATHI KUMAR SUKUMARA KURUP, J.
Shl/srm
Judgment made in
24.06.2025
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