Madras High Court
A.Shahul Hameed vs N.Malligarjuna on 25 June, 2025
2025:MHC:1455
2025:MHC:1455
S.A.No.905 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 28 / 10 / 2024
JUDGMENT PRONOUNCED ON : 25 / 06 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.905 OF 2017
A.Shahul Hameed ... Appellant /
Respondent /
Plaintiff
Vs.
1.N.Malligarjuna
2.M.Sushma
3.M.Shruthi
4.M.Karthik ... Respondents /
Appellants /
Defendants
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
August 28, 2014 made in A.S.No.09 of 2013 on the file of the learned
Additional District and Sessions Judge, Hosur, reversing the Judgment and
Decree dated December 21, 2012 made in O.S.No.35 of 2011 on the file of
the learned Subordinate Judge, Hosur.
For Appellant : Mr.S.Sadasharam
For Respondents : Mr.S.Sheik Thanveer Ahamed
for M/s.Mukund R. Pandiyan
Page No.1 of 24
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S.A.No.905 of 2017
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated August 28, 2014, passed in A.S.No.09 of 2013 by the
'Additional District and Sessions Court, Hosur' ['First Appellate Court' for
brevity], whereby the Judgment and Decree dated December 21, 2012
passed in O.S.No.35 of 2011 by the 'Subordinate Court, Hosur' ['Trial
Court' for brevity] was reversed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit before the Trial Court.
PLAINTIFF'S CASE
3. Originally the Suit Property belonged to the first defendant
vide registered Sale Deed (Document No.137/1995). Defendants 2 to 4 are
the children of the first defendant. Due to financial needs, the defendants
decided to sell the Suit Property. Through mediators, they agreed to sell it
to the plaintiff for a sum of Rs.9,30,000/- and executed a registered Sale
Agreement dated March 19, 2010 in Document No.1070/2010 on the file
of SRO, Kelamangalam and received an advance amount of Rs.9,00,000/-
while agreeing to execute Sale Deed within four months upon payment of
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the balance Rs.30,000/-.
3.1. The plaintiff was ready and willing to complete the
transaction and in July 2010, requested the defendants to produce the
original documents for verification, but they sought more time. In
December 2010, when the plaintiff insisted on execution of Sale Deed, the
defendants demanded more money against the terms of the Sale
Agreement and when the plaintiff refused, the defendants threatened to
sell the Suit Property to third parties. Even after the plaintiff issued a legal
notice dated February 1, 2011 (which the defendants 1 and 4 received and
defendants 2 and 3 refused to accept), the defendants did not perform their
part of the contract. Since the defendants breached the Sale Agreement,
the plaintiff has filed this Suit for specific performance.
DEFENDANTS' CASE
4. The defendants filed written statement stating that the Suit
Sale Agreement dated March 19, 2010 was created as a security for
another sale transaction; it is not intended to be a real Sale Agreement.
Before the Suit Sale Agreement, one Ramakka, one Narasimhaiah and 42
others agreed to sell certain properties in 4 different Survey Numbers to
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the sons of V.Mohamed Abdullah of Bangalore for Rs.20,00,000/- and
entered into a Sale Agreement dated July 17, 2009. A sum of
Rs.10,70,000/- was given as advance and the remaining Rs.9,30,000/- was
to be paid within 5 months. Pursuantly, Sale Deed was executed in respect
of the properties except one Survey Number viz., Survey No.761/1B, an
extent of 1 Acre 1 Cent. The defendants, plaintiff and one Udhaya Shankar
acted as brokers for the sale transaction. The Bangalore buyers (sons of
V.Mohamed Abdullah) demanded security for the sale of the remaining
property viz., Survey No.761/1B, insisting to execute a Sale Agreement in
respect of some other property in favour of the plaintiff, who is related to
the Bangalore buyers. Hence, the defendants executed the Suit Sale
Agreement in favour of plaintiff as a Security. The defendants never
intended to sell the Suit Property to the plaintiff. On the same day of Suit
Sale Agreement i.e., March 19, 2010, the plaintiff executed another
Agreement in the name and style of “Edhiradi Muchalika (vjpuo
Kr;rypf;fh)” in favour of the defendants for Rs.9,30,000/-. The Suit
Property is also covered under Sale Agreement dated July 17, 2009,
whereby the defendants agreed to sell it to the Bangalore Buyers. Hence,
the Sale Agreement is nominal and executed for security purposes for sale
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of Survey No.761/1B only. No amount was paid under the Sale
Agreement as alleged. Therefore, the defendants sought to dismiss the
Suit.
TRIAL COURT
5. At trial, plaintiff was examined as P.W.1, and two other
witnesses were examined as P.W.2 and P.W.3, and Ex-A.1 to Ex-A.6 were
marked on the side of the plaintiff. The first defendant was examined as
D.W.1 and one Venkatasamy was examined as D.W.2, and Ex-B.1 to Ex-
B.3 were marked on the side of the defendants.
6. After full-fledged trial, the Trial Court held that the Suit
Sale Agreement is true and valid, and the defendants executed it with an
intention to sell the Suit Property in favour of the plaintiff. Further held
that, the Suit Sale Agreement is enforceable. Accordingly, it decreed the
Suit as prayed for.
FIRST APPELLATE COURT
7. Feeling aggrieved, the defendants preferred an appeal
before the First Appellate Court, which, after hearing both sides,
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concurred with the Trial Court’s findings that the Sale Agreement is true
and valid. It held that the defendants failed to prove that Ex-A.1 – Suit
Sale Agreement was executed for security purposes. However, it held that
the plaintiff caused legal notice only on February 1, 2011 and the plaintiff
failed to prove his readiness and willingness to perform the contract within
the stipulated period i.e., on or before July 19, 2010. Accordingly, it
modified the Judgment and Decree granting return of advance amount of
Rs.9,00,000/- along with 6% interest from the date of Decree till
realisation and dismissed the Suit for Specific Performance.
SECOND APPEAL
8. Feeling aggrieved, the plaintiff has preferred the present
Second Appeal under Section 100 of the Code of Civil Procedure, 1908.
The Second Appeal was admitted on December 15, 2023 on the following
Substantial Questions of Law:
“ (i) After having concurred with the findings of the trial
Court on the point of genuineness of the agreement
and enforceability of the same, can the Lower
Appellate Court reverse the judgment and decree of
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the trial Court for specific performance of the
contract finding that the appellant/plaintiff has not
come to the court within the time stipulated in the
agreement dated 19.10.2010 [sic, should be
19.03.2010] ?
(ii) Whether the readiness and willingness shown by the
appellant in the notice issued under Ex.A-2 dated
01.02.2011 and his averment in the plaint that he is
ready and willing to perform his part of the contract
having parted with a sum of Rs.9.00 lakhs are not
sufficient compliance of the requirement as
contemplated under Section 16 of the Specific Relief
Act to decree the suit for specific performance of the
contract?”
ARGUMENTS:
9. Mr.S.Sadasharam, learned Counsel for the appellant /
plaintiff would argue that the Trial Court as well as the First Appellate
Court concurrently held that Ex-A.1 – Suit Sale Agreement is true, valid
and enforceable. The First Appellate Court, however, failed to appreciate
the pleadings as well as evidence in the right perspective and negatived
the plaintiff’s claim for specific performance. He would refer to the Plaint
Paragraph Nos.IV to VII and argue that the plaintiff was always ready and
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willing to perform his part of the contract. Further, he would argue that the
defendants’ case is not that the plaintiff was never ready and willing. Their
defence was that Ex-A.1 – Suit Sale Agreement was executed for security
purposes of another sale transaction and the same has not been proved.
Ex-B.3 – Agreement / “Edhiradi Muchalika (vjpuo Kr;rypf;fh)”
was also not proved. Considering the above aspects, the Trial Court rightly
decreed the Suit for Specific performance but the First Appellate Court
erred in holding that the plaintiff was not ready and willing and
pursuantly, granting return of advance amount dismissing the Suit qua
Specific performance. He would also submit that after passing of the Trial
Court Decree, the plaintiff has submitted the balance sale consideration
before the Court on January 22, 2013. Accordingly, he prayed to allow the
Second Appeal, dismiss the Judgment and Decree of the First Appellate
Court and confirm that of the Trial Court.
9.1. He would rely on the following decisions in support of
his contentions:
(i) Motilal Jain’s Case - Judgment of Hon'ble Supreme Court in
Motilal Jain -vs- Ramdasi Devi, reported in (2000) 6 SCC 420;
(ii) Sugani’ s Case - Judgment of Hon'ble Supreme Court in
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Sugani -vs- Rameshwar Das, reported in (2006) 11 SCC 587;
(iii) Ramakrishna Pillai’s Case - Judgment of Hon'ble Supreme
Court in Ramakrishna Pillai -vs- Muhammed Kunju, reported in
(2008) 4 SCC 212;
(iv) Lakshmikantham’s Case - Judgment of Hon'ble Supreme Court
in R.Lakshmikantham -vs- Devaraji, reported in 2019 (6) CTC
859;
(v) Sughar Singh’s Case - Judgment of Hon'ble Supreme Court in
Sughar Singh -vs- Hari Singh, reported in AIR 2021 SC 5581;
(vi) K.C.Rajabathar’s Case - Judgment of this Court in
K.C.Rajabathar -vs- B.Purushothaman, reported in 2019 (6)
CTC 26.
10. Mr.S.Sheik Thanveer Ahamed for M/s.Mukund R.
Pandiyan, learned Counsel for the respondents / defendants would argue
that the Suit Sale Agreement was executed for security purposes alone.
The plaintiff did not specifically deny the execution of Ex-B.3 –
Agreement / “Edhiradi Muchalika (vjpuo Kr;rypf;fh)”; he has
been evasive when it comes to Ex-B.3 by deposing that he does not
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remember executing the same. The defendants proved Ex-B.3 by
examining one of the attestor. Further, he would argue that the plaintiff
should plead and prove his readiness and willingness in order to obtain a
Decree of specific performance, dehors the plea of defence. If really Ex-
A.1 – Suit Sale Agreement was intended to be a true Sale Agreement, then
the plaintiff would have urged the defendants to execute the Sale Deed
within the stipulated time period, whereas in this case, the plaintiff has
issued legal notice on February 1, 2011 while the period of performance is
on or before July 19, 2010. The conduct of the plaintiff would establish
that Ex-A.1 – Suit Sale Agreement was executed only for security
purposes and never intended as a Sale Agreement. This is also supported
by the fact that there is no need for 4 months’ time, if the plaintiff has
already paid Rs.9,00,000/- and the remaining is only Rs.30,000/-. The
First Appellate Court failed to note that there was no passing of
consideration under Ex-A.1 – Suit Sale Agreement, as it was meant only
for security purposes and erred in ordering return of advance money. The
Trial Court failed to note that Ex-A.1 was never intended to be a true Sale
Agreement and erred in granting the relief of specific performance.
Accordingly, he prayed to set aside the Judgment and Decree of the First
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Appellate Court as well as those of the Trial Court and dismiss the Suit in
its entirety.
DISCUSSION:
11. This Court has heard on either side and perused the
materials available on record in light of the Substantial Questions of Law.
12. The Suit Property belongs to first defendant as ancestral
entitlement and the defendants 2 to 4 are his daughters and son. The
defendants admitted the execution of Ex-A.1 – registered Sale Agreement.
The case of the defendants is that Ex-A.1 was never intended or meant to
be a true Sale Agreement; it was not executed for sale of the Suit Property,
instead it was executed as a security for another sale transaction between
one Ramakka, one Narasimhaiah and 42 others on one side and the
Bangalore buyers (sons of V.Mohamed Abdullah) on the other side. If it is
so, the burden of proof lies upon the defendants to establish that Ex-A.1
was a security and not intended for sale of Suit Property.
13. This Court has perused the evidence of P.W.1 / plaintiff
and it is not consistent when it comes to Survey Number. He seems to
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interchange the subdivisions of Survey Number in his evidence. However,
comprehensive perusal of his cross-examination would reveal that the said
Bangalore buyers are his relatives; that he, along with the first defendant
and one Udhaya Shankar, acted as intermediaries between the landowners
and the Bangalore buyers for the sale of lands in sub-divisions 1A, 1B, 1C
and 1D of Survey No.761 and negotiated at a rate of Rs.26,70,000/- per
Acre with the Bangalore buyers; that the plaintiff obtained legal opinion
from an Advocate for the sale transaction and there was some cloud
around the title over one sub-division of Survey No.761; and that, hence,
on June 9, 2008 and on January 5, 2009, two Sale Deeds were registered
in respect of the other lands except the land in that one sub-division of
Survey No.761 in favour of the Bangalore buyers. Relevant extract of
P.W.1’s evidence in cross-examination is hereunder:
'. . . gpujpthjpia 2009k; tUlk; Kjy; bjhpa[k;.
mth; g{dg;gs;sp nrh;e;jth; vd;why; rhpjhd;. mth;
hpay;v!;nll; bjhHpy; bra;tJ vdf;Fj; bjhpa[k;.
vdf;F cjar';fiuj; bjhpa[k;. mth; \ykhfj;jhd;
gpujpthjpia vdf;Fj;bjhpa[k;. mth;kfd; bgah;
rPdpthrd; vd;why; rhpjhd;. bg';f~hpy; ,Ug;gJ
vk;.V.KfkJ bkhifjPd; g[fhhp/ vk;.V.KfkJ
rhFy;QkPJ/ vk;.V.ckh;fhdp g+f; Mfpnahh;fs;jhd;.
mth;fs; \d;WngUk; mz;zd; jk;gpfs; vd;why;
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rhpjhd;. mth;fs; epue;ju trpg;gplk; bg';f~h;jhd;.
mth;fs; vdf;F brhe;jf;fhuh;fs;jhd;. nkw;brhd;d
3 ngUk; rh;nt vz;. 761/1V/ gp/ rp/ o Mfpatw;wpy; 3
Vf;fh; 33 brz;l; th';FtJ Fwpj;J ngrpaJ
vdf;Fj;bjhpa[k;. nkw;brhd;d 17.7.2009e; njjp
bg';f~iur;nrh;e;j 3 ngh; mz;zd; jk;gpfs;
uhkf;fh/ f/bg. rpj;jigug;gh/ kw;Wk; eurpk;ikah/
j/bg.rpj;jigug;gh mth;fs; \ykhf 3 Vf;fh; 36
brz;l; epyk; fpuak; ngrp gjpt[bra;ag;gl;lJ
vd;why; rhpjhd;. me;j fpuag; gj;jpuk; 42 ngUf;F
vGjg;gl;lJ. ehd; rptr';fh; tf;fPy;\ykhf fUj;J
th';fpf;bfhLj;njd;. gpd;dh; me;jf; fpuak;
eilbgw;wJ. nkw;brhd;dJf;F 1 Vf;fUf;F +.26
yl;rj;J 90 Mapuk; ngrg;gl;lJ vd;why; 26 yl;rj;J
70 Mapuj;Jf;F ngrg;gl;lJ. 3 Vf;fh; 17 brz;l;Lf;F
+.85 yl;rj;J 27 Mapuj;J 300 ,Uf;Fk; vd;why;
,Uf;fyhk;. tpw;gth;fsplk; ehd; +.25 yl;rj;J 50
Mapuj;Jf;F ngrpndd; vd;why; rhpay;y. eh';fs; 3
ngUk; juF ntiy bra;njhk;. ehDk; cjar';fUk;/
gpujpthjpa[k; nrh;e;Jjhd; bra;njhk; vd;why; ehd;
bra;atpy;iy. rh;nt vz;.761/1V-y; 1 Vf;fh; 17
brz;l; epyj;ijg; bghWj;J 24tJ fpuajhuUf;F
chpik ,y;iy vd;W tHf;fwpOh; rl;lf;fUj;J
Fwpg;gpl;lhh; vd;why; kw;wth;fs; nrh;e;J tpw;why;
mJ bry;Yk; vd;W tf;fPy; brhd;dhh;.
mjdhy;jhd; rh;nt vz;.1 Vf;fh; 17 brz;l;
epyj;ijg; bghWj;J fpuak; epd;W nghdJ vd;why;
rhpjhd;. . . .'
13.1. He further deposed as hereunder:
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'. . . vd;dplk; fhl;lg;gLk; 19.3.2010
njjpapl;ljpy; cs;s xg;ge;jj;jpy; cs;sJ vd;
ifbaGj;Jjhd;. me;j Mtzk; 3708 Kjy; 3713
tiu cs;sJ vd;why; rhpjhd;/ (xg;ge;jj;jpy;)/
thpir vz;fspy; Kj;jpiuj;jhs;fs; cs;sd
vd;why; rhpjhd;. mnj njjpapy; gpujpthjpfSf;F
vjphpilg; gj;jpuk; vGjpf;bfhLj;njd; vd;why;
vdf;F epidt[ ,y;iy. . . . '
14. The defendants’ side have let in Ex-B.1 and Ex-B.2. Ex-
B.1 is a Sale Deed dated January 5, 2009 executed in respect of 1 Acre 11
Cents in Survey No.761/1C by Balasubramaniam and 7 others in favour of
the Bangalore buyers. Ex-B.2 is another Sale Deed dated June 9, 2008
executed by Ramakka and 23 others in respect of 1 Acre 11 Cents in
Survey No.761/1A and another 1 Acre 11 Cents in Survey No.761/1D in
favour of the Bangalore buyers. The defendants’ case is that while the
negotiation for sale was also in respect of Survey No.761/1B, the same
was kept pending and Sale Deed was executed in respect of the other
properties alone, as there was some cloud around the title to the land in
Survey No.761/1B. Defendants’ further case is that for execution of Sale
Deed in respect of the property in Survey No.761/1B after removal of the
clouds surrounding the title thereto, as insisted by the Bangalore buyers,
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defendants executed a Sale Agreement in respect of the Suit Property only
for security purposes with no intention to sell the same to the plaintiff.
15. The defendants have marked Ex-B.3 – Agreement /
“Edhiradi Muchalika (vjpuo Kr;rypf;fh)” whereby the plaintiff
has agreed to cancel Ex-A.1 – Sale Agreement upon payment of
Rs.9,30,000/- within a period of four months. The plaintiff when posed
with questions about Ex-B.3 – Agreement in his cross-examination, has
answered in a evasive manner that he does not remember executing such
an agreement. The defendants examined D.W.2, who is a witness to Ex-
B.3 - Agreement. D.W.2 has deposed that Sale Deeds were not executed
in respect of all the properties as negotiated with the Bangalore buyers as
Sale Deed in respect of a portion the properties negotiated was kept
pending as it lacked a clear title; that in this regard, Ex-A.1 – Sale
Agreement and Ex-B.3 – Agreement was entered into between the
plaintiff and the defendants and that no consideration passed under Ex-
A.1. Though D.W.2 did not employ the term “security” anywhere, his
deposition that Ex-A.1 and Ex-B.3 were executed on the same day, that the
plaintiff did not pay any consideration as recited in Ex-A.1, coupled with
the factum of previous sale transaction mediated by the plaintiff and first
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defendant and the pending of sale in respect of one sub-division of Survey
No.761, would render the defendants’ case that Ex-A.1 was intended to be
a security document highly probable. More so, perusal of Ex-A.1 and Ex-
B.3 would show that the Stamp papers for both were purchased from the
same stamp vendor on the same date and their serial numbers are
consecutive. The defendants have clearly and specifically pleaded that the
plaintiff executed Ex-B.3 – Agreement in return for the execution of Ex-
A.1 – Sale Agreement as security by the defendants. This Court is of the
view that the evidence of D.W.2 is sufficient to prove the execution of Ex-
B.3 – Agreement by the plaintiff. If really Ex-A.1 was intended for sale
of Suit Property, there is no need for the plaintiff to enter into Ex-B.3 –
Agreement with the defendants agreeing to cancel the Sale Agreement
upon payment of Rs.9,30,000/-. This creates a strong inference in favour
of the defendants’ case that Ex-A.1 was never intended for the sale of Suit
Property but executed as a security for another sale transaction.
16. Though the pleadings and evidence in this case are not
specific and suffers from lack of clarity, considering the fact that the
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pleadings are mofussil ones and the parties also hail from village, this
Court has appreciated them with utmost care and caution, trying to make
sense by comprehensive perusal wherever there are ambiguity and minor
inconsistencies. Upon such cumulative reading of the above oral and
documentary evidence, it could be reasonably inferred that the first
defendant as broker received money in respect of all the four subdivisions
of Survey No.761 viz., 1A, 1B, 1C and 1D; that Sale Deed in respect of
sub-division 1B could not be executed for lack of clear title; that Sale
Deeds were successfully executed in respect of other sub-divisions; that
in view of not being able to execute Sale Deed in respect of sub-division
1B, the first defendant owed Rs.9,30,000/- to the Bangalore buyers; that,
thus, the first defendant either had to clear the title around the land in sub-
division 1B of Survey No.761 or repay Rs.9,30,000/- to the Bangalore
buyers and as a security for the same, the Bangalore buyers insisted on the
first defendant executing a Sale Agreement in respect of some other
property in favour of the plaintiff who is their relative; that accordingly,
the defendants and the plaintiff entered into even dated Ex-A.1 – Sale
Agreement and Ex-B.3 – Agreement, both in respect of the Suit Property.
Thus, Ex-A.1 – Sale Agreement was executed only to stand as a security
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as discussed above and never intended to for sale of Suit Property.
17. This view is further supported by the fact that Ex-A.1 –
Sale Agreement is dated March 19, 2010 and the period of performance
was set to be 4 months i.e., on or before July 19, 2010. If really Ex-A.1 -
Sale Agreement was intended for sale of Suit Property, the plaintiff need
not have waited till February 1, 2011 for issuing Legal Notice calling upon
the defendants to perform their part of the contract. To be noted, there is
no evidence available on record to show the plaintiff’s readiness and
willingness to perform his part of the contract during the stipulated period.
One another fact supporting the aforesaid view is that there is no reason
for the plaintiff to wait for 4 months to get Sale Deed executed, when he
has allegedly almost paid the entire sale consideration i.e., Rs.9,00,000/-
out of the sale consideration of Rs.9,30,000/-.
18. It is settled law that even in the absence of specific plea
by the defendant, it is the duty of the plaintiff to prove his readiness and
willingness to perform his part of the contract [See J.P. Builders -vs-
A.Ramadas Rao, reported in (2011) 1 SCC 429]. It is apposite to mention
here that the Suit Sale Agreement transaction took place on March 19,
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2010 i.e., prior to the commencement of the Specific Relief (Amendment)
Act, 2018. Leaving aside the question whether the said amendment is
retrospective or prospective in operation, the said amendment dispenses
only with the pleadings of readiness and willingness and not proof thereof.
Hence, the plaintiff is to prove that he is always ready and willing to
perform the essential terms of the contract not only during the period
performance but till the conclusion of trial. In this case, readiness may be
inferred from the fact that 93% of the alleged sale consideration has been
paid upfront as advance but there is no evidence available on record to
show the plaintiff’s willingness, a mental attitude, to perform his part of
the contract. The lack of willingness on the side of the plaintiff coupled
with Ex-B.3 and other aspects discussed above, probablizes the case of the
defendants.
19. To sum up, this Court concludes that Ex-A.1 – Sale
Agreement was never intended for sale of Suit Property and it was
executed only as a security, as insisted by the Bangalore buyers in favour
of plaintiff, for either getting Sale Deed executed in respect of Survey
No.761/1B or returning Rs.9,30,000/-, which the first defendant owed the
Bangalore buyers in lieu of non-execution of Sale Deed in respect of
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Survey No.761/1B. There is no evidence available on record to show that
first defendant got Sale Deed executed in respect of Survey No.761/1B in
favour of the Bangalore buyers. The defendants cannot absolve their
liability. Hence, the First Appellate Court was right in ordering return of
money but it failed to consider that the first defendant’s liability is to the
tune of Rs.9,30,000/-, though it seems to be only Rs.9,00,000/- as per Ex-
A.1. Further, considering the fact that the transaction in this case, being
one of real estate, is commercial in nature and hence, the First Appellate
Court ought to have awarded 12% interest considering the facts and
circumstances of the case. Hence, this Court directs the defendants to pay
the plaintiff a sum of Rs.9,30,000/- with interest at the rate of 12% from
the date of plaint till the date of realisation. Further, to enable the plaintiff
to realise the said amount, a charge shall be created on the Suit Property.
20. The First Appellate Court’s concurred with the Trial
Court’s finding that Ex-A.1 – Sale Agreement is true and valid but the
First Appellate Court went on to hold that the plaintiff failed to prove his
readiness and willingness to perform his part of the contract within 4
months and hence, the plaintiff is not entitled to the relief of specific
performance. The First Appellate Court has not denied the relief of
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specific performance on the ground that the plaintiff failed to approach the
Court on time. Hence the first Substantial Questions of Law does not arise
at all in this case. As regards the second one, mere pleadings do not
amount to proof. As stated supra, the payment of a major chunk of the
alleged sale consideration as advance by the plaintiff may show his
readiness, but there is no evidence available on record to prove his willing
to perform his part of the contract within the stipulated time period i.e., on
or before July 19, 2010. It is settled law that even in the absence of
specific plea by the opposite party, in view of Section 16 (c) of the
Specific Relief Act, 1963, the plaintiff has to prove his readiness and
willingness to perform his part of the contract. The plaintiff is bound to
prove his readiness and willingness during the stipulated period of
performance till the conclusion of trial but in this case Ex-A.2 – Notice
issued quite long after the lapse of period of performance cannot be
termed to show his readiness and willingness during the period of
performance. Hence, the plaint pleadings, Ex-A.2, as well as payment of
Rs.9,00,000/- as advance does not prove the readiness and willingness of
the plaintiff. Thus Section 16 (c) of the Specific Relief Act, 1963 is not
complied with by the plaintiff. Substantial Questions of Law No.2 is
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answered accordingly.
21. The rulings relied on by the plaintiff are distinguishable
from the case on hand on facts and hence not applicable.
CONCLUSION:
22. Resultantly, the Second Appeal stands partly-allowed and
the Judgment and Decree of the First Appellate Court is modified as
hereunder:
(a) The Suit is dismissed qua the relief of specific performance
and decreed for return of money;
(b) The defendants are directed to pay a sum of Rs.9,30,000/-
along with 12% interest per annum from the date of Suit i.e.,
March 10, 2011, till the date of realisation to the plaintiff;
(c) A charge is created on the Suit Property for due payment of
the aforesaid amount and interest;
(d) The defendants shall pay the costs incurred by the plaintiff for
the Original Suit before the Trial Court;
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(e) The plaintiff is entitled to get refund of money deposited by
him pursuant to the Trial Court’s Judgment and Decree along
with interest accrued thereon, if any.
22.1. Keeping in mind the facts and circumstances of the case,
there shall be no order as to costs for this Second Appeal.
25 / 06 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
To
1.The Additional District and Sessions Judge
Hosur.
2.The Subordinate Judge
Hosur.
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R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.905 OF 2017
25 / 06 / 2025
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