Madras High Court
N. Selvaraj vs Ramasamy (Died) on 19 September, 2025
S.A.No.500 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 31.07.2025
Pronounced on 19.09.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVIND THILAKAVADI
S.A.No.500 of 2019 and
C.M.P. No.8402 of 2019
N. Selvaraj ...Appellant
Vs.
1. Ramasamy (died)
2. R. Gowri
3. R. Prema
4. R. Sathyakala ...Respondents
R1 died, RR2 to 4 already on record are recorded as legal
heirs of the deceased R1. Memo dated 04.06.2025 USR
No.9323/2025 recorded vide court order dated 05.06.2025
made in S.A. No.500/19.
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 11.09.2018 passed in A.S. No.66 of 2013
(Old No. A.S. No.36/2008), on the file of the I Additional Sub Court,
Coimbatore, reversing the Judgment and decree dated 11.04.2008 passed
in O.S.No.82 of 2005, on the file of the District Munsif cum Judicial
Magistrate Court, Palladam, Coimbatore District.
For Appellant : Mr. P. Santhosh
Page 1 of 20
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S.A.No.500 of 2019
for Mr. K. Govi Ganesan
For Respondents : Ms. S.B. Madhura
for Mr. R. Bharath Kumar for R2 to R4
JUDGMENT
In this Second Appeal, challenge is made to the decree and
judgment dated 11.09.2018 passed in A.S. No.66 of 2013 (Old No. A.S.
No.36/2008), on the file of the I Additional Sub Court, Coimbatore,
reversing the Judgment and decree dated 11.04.2008 passed in
O.S.No.82 of 2005, on the file of the District Munsif cum Judicial
Magistrate Court, Palladam, Coimbatore District.
2. The Plaintiff in O.S.No.82 of 2005, on the file of the District
Munsif cum Judicial Magistrate Court, Palladam, Coimbatore District, is
the appellant and the defendants therein are the respondents, in the
present second appeal.
3. For the sake of convenience the parties are referred to as per
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their ranking in the trial court.
4. The plaintiff filed the above suit for specific performance of the
sale agreement dated 23.08.2004 against the defendants.
5. The case of the plaintiff is that he entered into a sale agreement
on 23.08.2004 under Ex.A1 with the defendants for purchasing the suit
property for a sale consideration of Rs.73,700/- and on the date of the sale
agreement, a sum of Rs.10,000/- was paid as advance by the plaintiff to
the defendants and three months time was fixed for execution of the sale
deed. Time was not the essence of contract. It is further submitted that
the plaintiff was always ready and willing to perform his part of contract
and approached the defendants with balance sale consideration on several
occasion, but the defendants did not come forward to execute the sale
deed by stating that the 1st defendant was unwell and was admitted in the
hospital and got the execution of sale deed postponed. On 18.01.2005,
the plaintiff caused a legal notice to the defendants calling upon them to
execute the sale deed as per the agreement, for which the defendants sent
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a reply notice on 21.01.2005 with false allegations. Hence, the plaintiff
was constrained to file the suit for specific performance.
6. The claim of the plaintiff was resisted by the defendants.
Though the defendants admitted the sale agreement and receipt of
advance amount, they denied that time is not the essence of contract and
also that the plaintiff approached them with balance sales consideration
within the stipulated time. The further contention of the defendants is
that as per the agreement, the plaintiff's advance amount would be
forfeited if the balance sale consideration of Rs.63,700/- is not paid
within three months from the date of sale agreement. The defendants
denied that the plaintiff was ready and willing to perform his part of
contract and it was the defendants who refused to execute the sale deed
citing the health condition of the 1st defendant. The 1st defendant was
never admitted in hospital and he was always hale and healthy. Further
the defendants admitted receipt of legal notice sent by the plaintiff on
18.01.2005, to which they replied stating that the plaintiff has not come
forward to pay the balance sale consideration before expiry of three
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months. Hence, the advance amount of Rs.10,000/- stood forfeited and
the sale agreement stood cancelled. The defendants further stated that the
plaintiff did not have any source to pay the balance sale consideration
within the stipulated time. Therefore, the suit is liable to be dismissed.
7. The trial court, based on the materials on record, vide its
judgment and decree dated 11.04.2008 decreed the suit infavour of the
plaintiff. Aggrieved by this, the defendants preferred an appeal in A.S.
No.66/2013 before the I Additional Subordinate Court, Coimbatore. The
first appellate court reversed the judgment and decree of the trial court
thereby allowing the said appeal by holding that time is the essence of
contract and that the plaintiff failed to prove his readiness and willingness
to perform his part of the contract. The first appellate court ordered for
refund of advance money along with interest to the plaintiff since it was
admitted by the defendants. Aggrieved by this, the present second appeal
is filed by the plaintiff.
8. The following substantial questions of law were raised in the
memorandum of second appeal.
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A) When Ex.A1, Agreement of sale stipulates that NOC has to be
obtained from panchayat before executing sale deed and when
admittedly the defendants have not obtained the same, is it correct
on the part of the lower appellate court to find that the plaintiff was
not ready and willing to perform his part of the contract?
B) When Ex.A1, Agreement of sale contains the clause of obtaining
NOC from panchayat coupled with admission by D.W.1, is it
correct to non suit the plaintiff by the lower appellate court on the
ground of non pleading the same?
C) When Ex.A8 to Ex.A14 has been marked to prove the means of the
plaintiff and more especially Ex.A14 sale deed, is it correct on the
part of the lower appellate court to hold that the plaintiff has no
means to non suit him?
9. The learned counsel appearing for the appellant/plaintiff submits
that the first appellate court erroneously reversed the well considered
judgment of the trial court and dismissed the suit for specific performance
and the same is liable to be set aside. His further contention is that duty
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is cast upon the defendants to obtain No Objection Certificate from the
Panchayat within the contract period as per the clause incorporated in
Ex.A1 sale agreement. In fact, the 1st defendant examined as D.W.1
himself has admitted that No Objection Certificate was not obtained and
therefore, the sale could not be registered. Moreover, P.W.1 and P.W.2
have categorically spoken about the readiness and willingness of the
plaintiff to perform his part of the contract, while so, the first appellate
court ought not to have come to the conclusion that the plaintiff was not
ready and willing to perform his part of the contract. The first appellate
court failed to appreciate that the balance sale consideration was also
deposited in the court. He would further submit that under Ex.A14 sale
deed, the plaintiff has established that he had sufficient means to purchase
the suit property and also Ex.A8 to Ex.A13proves the capacity of the
plaintiff to purchase the suit property. It is his further submission that
time is not the essence of contract as the defendants failed to produce No
Objection Certificate from panchayat before executing the sale deed. The
presumption in agreement to sell immovable properties in that is not of
the essence of the contract. Where there was no express stipulation in
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sale agreement saying that time was of the essence of the contract though
it mentioned that within three months from the date of the agreement, the
performance must be completed by executing and registering the sale
deed and paying the balance price, such stipulation would not make time
the essence of the contract. His further contention is that the defendants
are trying to take execuse from the terms of the contract and having
agreed to get No Objection Certificate from the panchayat for the purpose
of completing the sale transaction, the defendants cannot simply say that
it is not necessary unless it is proved before the court that no objection
certificate is necessary. Hence, credit has to be given to the plaintiff's
situation for having waited for getting the No Objection Certificate by the
defendants, though that alone cannot be the reason for not being ready
and willing to perform the contract. In support of his contentions, the
learned counsel for the appellant relied on the following decision:
I. Vairavan vs. K.S. Vidyanandam and others reported in AIR 1996
MADRAS 353
II. Judgment of this Court dated 23.01.2025 in S.A. No.575 of
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2014(V. Petchi vs. Ramasamy (deceased) rep by legal heirs)
Hence, the first appellate court was not justified in reversing the well
considered judgment and decree of the trial court and hence prayed for
setting aside the judgment and decree passed by the first appellate court.
10. On the other hand, the learned counsel for the
respondents/defendants submit that Section 16(c) of the Specific Relief
Act, 1973 provides for personal bars to the relief, and one such bar under
it is the failure to prove readiness and willingness. The plaintiff has relied
upon Ex.A8 to Ex.A14 to show his financial capacity and readiness and
willingness as per Section 16(c) of the Act. The above documents are
monthly salary slips of the plaintiff showing his monthly salary at
Rs.9,158/- and Rs.9,416/- per month. It is pertinent to note that the
balance sale consideration to be paid by the plaintiff was Rs.63,700/- and
the salary slips show that carry home salary is only a meagre amount of
Rs.9,158/-, which does not in any way show that the plaintiff had
sufficient means to pay the balance sale consideration. The plaintiff has
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also relied upon Ex.A8 bank passbook to show that he has sufficient bank
amount to pay the balance sale consideration, but the same cannot be
accepted because the above bank passbook pertains the period after the
expiry of the stipulated period in the sale agreement dated 23.08.2004.
Hence, the plaintiff failed to establish that he has sufficient financial
capacity to pay the balance amount of Rs.63,700/- during the stipulated
time. Thus the plaintiff failed to prove that he was ready and willing to
perform his part of contract by establishing his financial capacity.
10.1. The learned counsel further submits that the Hon'ble Supreme
Court in catena of judgments regarding proving of 'readiness and
willingness' has reiterated that the plaintiff need not jingle his coins
before the court, but he has to adduce to show availability of funds to
make payments in terms of the contract in time. If the plaintiff does not
have sufficient funds with him to discharge his obligations, then he would
have to specifically plead how the funds would be made available to him
through making arrangement for loans to perform his part of contract in
time. It is well settled position that readiness is the financial capacity of
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the plaintiff to pay the balance sale consideration as per the contract terms
and willingness is the intention to pay and both ought to be individually
proved by the plaintiff', both of which have not been met in the present
case. Hence, the first appellate court rightly concluded that the plaintiff
failed to prove his readiness and willingness to perform his part of the
contract. The further submission of the learned counsel for the
respondents is that under Ex.A1 sale agreement the time fixed for the
contract is three months which expired on 22.11.2004. A specific clause
is incorporated in the sale agreement that failure on the part of the
plaintiff to pay the balance sale consideration within the stipulated period
would lead to the forfeiture of the advance money paid by him and that
the agreement would be cancelled. In the present case, the express terms
of the contract for a fixed period of 3 months and additionally a forfeiture
clause of the advance money paid by the plaintiff on failure to perform
his part of contract within the stipulated 3 months and cancellation of the
agreement, along with the surrounding circumstances that the plaintiff
could not prove that he was ready and willing to perform his part of the
contract to pay balance sale consideration within the stipulated time
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period under the contract, and that the plaintiff failed to send any pre-suit
notice when the agreement was in force within the stipulated three
months period, all would show that the intention of the parties was to
make time the essence of contract. The defendants in the reply notice
have clearly stated that since the plaintiff did not come forward to pay
the balance sale consideration within the stipulated period of three
months from the date of agreement, the advance money stands forfeited
and the sale agreement is cancelled and not binding on the defendants.
The first appellate court has rightly held that the plaintiff has not come to
the court with clean hands. The contention of the plaintiff that as per
Ex.A1 sale agreement, a clause has been incorporated that the defendants
should obtain No Objection Certificate after clearing the property charges
for the plot and since the defendants failed to procure No Objection
Certificate within the period of three months, the plaintiff could not pay
the balance sale consideration and perform his part of the contract, which
is incorrect. It is not the case of the plaintiff that he was unable to
perform his part of contract because the defendants did not obtain No
Objection Certificate from panchayat but to execute the sale deed. From
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the inception, it is the case of the plaintiff that the 1st defendant had fallen
ill and admitted in hospital thus kept postponing the execution of sale
deed. More particularly, nowhere in the plaint it was pleaded about No
Objection Certificate or that the defendants refused to obtain No
objection Certificate or that the plaintiff faced any hindrance due to the
same. Moreover the alleged health condition of the 1st defendant was also
not proved by the plaintiff. Therefore, in the absence of pleadings, the
court cannot rely on the evidence produced by the parties, even if
admitted by the parties in oral evidence. Therefore, even assuming the
defendants have committed breach, if the plaintiff fails to prove that he
was ready and willing to perform the essential terms of the contract which
are required to be performed by him, there is a bar to specific
performance in his favour. Therefore, the assumption that readiness and
willingness of plaintiff is something which need not be proved if the
plaintiff is able to establish that the defendants refused to execute the sale
deed and thereby committed the breach, is not correct. Moreover the
judgment relied upon by the appellant/plaintiff is not similar to the facts
and circumstances of the case on hand and therefore, the same was not
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applicable to the facts and circumstances of the present case. In support
of her contentions, the learned counsel for the respondents has relied on
the following judgments.
i. Saradamani Kandappan vs. S. Rajalakshmi and others reported
in (2011) 12 SCC 18.01.2005.
ii. U.N. Krishnamurthy (since deceased) through legal
representatives vs. A.M. Krishnamurthy reported in (2023) 11
SCC 775.
iii. Mohammed Abdul Wahid vs. Nilofer and another reported in
(2024) 2 SCC 144.
iv. P. Ravindranath and another vs. Sasikala and others reported in
2024 SCC Online SC 1749.
11. Heard on both sides. Records perused.
12. As per the pleading in the plaint, the defendants agreed to sell
the suit property to the plaintiff for a consideration of Rs.73,600/- and out
of the same, a sum of Rs.10,000/- was paid by the plaintiff to the
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defendants in advance. It was agreed between the parties that the plaintiff
would get the sale deed registered within a period of three months upon
payment of full sale consideration. According to the plaintiff, he
approached the defendants with the balance sale consideration several
times and requested the defendants to execute the sale deed in his favour.
But the defendants kept on postponing the execution of the sale deed on
one pretext or the other. Hence, the plaintiff issued a legal notice to the
defendants stating that he is always ready and willing to perform his part
of the contract and called upon the defendants to execute the sale deed in
favour of the plaintiff by receiving the balance sale consideration.
However, the defendants replied that since the plaintiff failed to perform
his part of contract within the stipulated time, the advance amount is
forfeited and the sale agreement is cancelled. Hence, the plaintiff filed
the above suit for specific relief. On the side of the defendants it is
submitted that since time was essence of contract and the plaintiff failed
to establish his financial capacity and readiness and willingness to
perform his part of contract, the plaintiff is not entitled for the specific
relief.
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13. It is settled law that for relief of specific performance, the
plaintiff has to prove that all along and till the final decision of the suit,
he was ready and willing to perform his part of the contract. It is the
bounden duty of the plaintiff to prove his readiness and willingness by
adducing evidence. This crucial facet has to be determined by
considering all circumstances including availability of funds and mere
statement or averment in plaint of readiness and willingness would not
suffice. As rightly pointed out by the learned counsel for the respondent,
the plaintiff has to stand on his own legs to establish that he had made out
case for grant of relief of specific performance of contract. On perusal of
the plaint it is seen that nowhere it is pleaded about the execution of the
sale deed only after the procuration of No Objection Certificate by the
defendants. It is only stated that, the defendants took time to execute the
sale deed by stating about the ill health of the 1st defendant and his
admission in the hospital, which according to the defendants is false.
Only for the first time in the evidence, the plaintiff has deposed about the
No Objection Certificate. It is well settled that in the absence of
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pleadings, the court cannot rely on the evidence produced by the parties.
No amount of evidence is admissible beyond the pleadings. Even in
Ex.A1 agreement it is only stated as follows:
"ico fpiuag; gj;jpuk; gjpt[ bra;a cz;lhFk; Kj;jpiuj; jPh;ita[k;
gjpt[ fl;lzfSk;. ek;kspy; 5 yf;fkpl;ltiur; rhh;e;jJ/ nkYk;
fPH;fhQqk; brhj;Jf;F njitg;gl;lhy; g";rhaj;J jilapd;ik rhd;W
kw;Wk; mgptpUj;jpf; fl;lzfs; Mfpaitfisa[k; 1 ? 4 yf;fkpl;lth;
brytpy; bra;J bfhLf;f ntz;oaJ/"
Therefore, the clause in Ex.A1 sale agreement show that it is not an
obligation on the part of the defendants to obtain the NOC and clear
development charges in order to perform their part of the contract. Even
assuming that the defendants have committed breach, the plaintiff must
prove that he was always ready and willing to perform his part of
contract. Failing to do so, the plaintiff is not entitled for the specific
relief of performance. Therefore, when the readiness and willingness of
the plaintiff to perform his part of contract is not proved, within the three
months period stipulated under the contract, particularly when time was
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the essence of contract which could be derived from the express terms of
the contract, along with forfeiture clause, I am of the view that the decree
of specific performance was not warranted in the present case. However,
in order to adjust equities between the parties, the first appellate court has
granted the alternate relief of refund of advance money. No perversity or
infirmity found in the judgment and decree passed by the first appellate.
Moreover, there was no question of law, let alone any substantial question
of law, involved in the Second Appeal.
14. In the result,
i. The Second Appeal is dismissed. No costs. Consequently
connected miscellaneous petition is closed.
ii. the decree and judgment dated 11.09.2018 passed in A.S. No.66
of 2013 (Old No. A.S. No.36/2008), on the file of the I Additional
Sub Court, Coimbatore, is upheld.
19.09.2025
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Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The I Additional Sub Judge, Coimbatore
2. The District Munsif cum Judicial Magistrate, Palladam, Coimbatore
District.
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J
bga
Pre delivery Judgment in
19.09.2025
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