[Cites 6, Cited by 0]
Madras High Court
M/S. Para Enterprises Pvt.Ltd vs M/S. A.R. Dairy Food Pvt Ltd on 30 April, 2026
Author: C.V.Karthikeyan
Bench: C.V. Karthikeyan
2026:MHC:1674
APPEAL(CAD) No. 51 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 16.02.2026
PRONOUNCED ON : 30.04.2026
CORAM
THE HON'BLE MR JUSTICE C.V. KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE K.KUMARESH BABU
APPEAL(CAD) No. 51 of 2024
M/s.Para Enterprises Pvt. Limited,
No. 7th Floor, Tamarai Tech Park,
No. 16-20A(SP) Developed Plots,
Jawaharlal Nehru Road, Guindy Industrial Estate,
Guindy, Chennai Tamil Nadu 600032.
Represented by its Authorised Signatory
Mr.Pradeep Sankar
..Appellant
Vs
M/s. A.R. Dairy Food Private Limited
Having office at No. 10/5C, Madurai Road,
Begampur Post, Dindigul 624002.
..Respondent
PRAYER: Appeal filed under Section 96 of CPC r/w Section 13 (1-A) of
Commercial Court Act, 2015 to set aside the Fair and Decreetal order dated
27.07.2023 passed in C.O.S. No. 413 of 2022 on the file of Principal Judge,
Commercial Courts Egmore, Chennai.
For Appellant : Mr.P.J.Rishikesh
For Respondent : Mr.R.Sathish Kumar
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APPEAL(CAD) No. 51 of 2024
JUDGMENT
(Judgment of the Court was delivered by C.V.Karthikeyan J.)
The plaintiff in COS No.413 of 2022, on the file of the Principal
Commercial Court at Chennai is the appellant herein aggrieved by the judgment
and decree dated 27.07.2023, by which judgment, the suit filed by the plaintiff
was dismissed.
2.The suit in COS No.413 of 2022 had been filed under Order VII Rule 1
and Order XIII-A Rule 1 and 2 of the Code of Civil Procedure, 1908 read with
the provisions of the Commercial Courts Act, 2015 seeking a direction against
the defendant/respondent herein to pay a sum of Rs.72,15,000/- together with
interest at 18% per annum from the date of the plaint till the date of recovery
and for costs.
3.It had been contended in the plaint that the plaintiff/appellant herein
was engaged in the manufacture, supply, erection and commissioning of Wind
Energy Generators. The defendant/respondent herein had placed a purchase
order on 09.11.2016 for purchase of a P750/49-750 KW Wind Generator for a
sum of Rs.3.85/-crores. It had been further contended that the
defendant/respondent had failed to effect complete payment and a balance sum
of Rs.38,00,000/- was still due and payable. The appellant/plaintiff had
addressed several E-mails from 09.05.2018 to 06.07.2020 and also made
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telephonic reminders for payment of the outstanding amount. A final notice
was issued on 24.09.2020. It had been contended that there was admission of
placing of the purchase order in the reply dated 01.10.2020. Thereafter, the suit
had been filed seeking recovery of the principal amount and interest.
4.In the written statement, it had been contended that the contract had
obligations to be performed by both parties and one of the important obligations
was that the land for such erection of Wind Energy Generator was to be
provided by the appellant herein. It was contended that the land should be fit
for the said purpose. The parties had also entered into a sale deed on
09.11.2016 for the land at S.Nos.1848/1C (part) and 1845/6 (part) of about 1.8
acres and a sum of Rs.3,65,000/- had been paid and the deed had also been
registered in the Sub Registrar Office at Gangaikondan. It was stated that the
land sold by the plaintiff to the defendant did not have any free and public
access and therefore, the defendant was not in a position to carry out the
objectives of the Wind Energy Generator. In this connection, they had pointed
out that there was no common pathway or exclusive pathway for the defendant
and there was no proper response by the plaintiff for the complaints made in this
regard. It had been further stated that under such circumstances, the
respondent/defendant was not liable for the suit claim.
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5.On the basis of the above pleadings, the following issues were framed:
(i)Whether the plaintiff is entitled to the suit claim?
(ii)Whether the plaintiff was guilty of breach of
contract by not providing the pathway to the
defendant?
(iii)Whether the suit was barred by limitation?
(iv)Whether the interest claimed was proper?
(v)To what relief the parties are entitled to?
6.During trial, the plaintiff examined one witness as PW1 and marked
Exs.A1 to A17. Ex.A3 dated 09.11.2016 was the purchase order. Exs.A4 –
A13 were E-mails exchanged between the plaintiff and the defendant. Exs.A14
& A15 were legal notices exchanged between the parties. Ex.A16 was the
statement of accounts. The defendant also examined one witness and marked
Exs.D1 to D3. Ex.D2 series were E-mail correspondences exchanged between
the parties. Ex.D3 was the FMB sketch drawings.
7.On the basis of the pleadings and the oral and documentary evidence
adduced, the Trial Court held that among the conditions in the purchase
order/Ex.A3 was that the plaintiff should provide suitable land at a specified site
on point basis. It had also been provided that the pathway rights for smooth
movement of crane and vehicles should be provided. It was observed that
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though there was a reference to a sale deed dated 09.11.2016, neither party had
produced a copy of the same. It was held that the initial burden of proof was on
the plaintiff to prove that non availability of the pathway was not true. The E-
mails exchanged between the parties were also examined and it was found that
the dispute was access to the site for maintenance and service of the Wind
Energy Generator. The learned Trial Judge then placed reliance on Section 20
of the Specific Relief Act and observed that without a pathway, it would not be
possible for the defendant to go to the site for service and maintenance.
Holding as above, it was held that the plaintiff was not entitled for recovery of
any amount or interest thereon. The suit was then dismissed necessitating the
plaintiff to file the present appeal.
8.Heard Mr.P.J.Rishikesh, learned counsel for the appellant and
Mr.R.Sathish Kumar, learned counsel for the respondent.
9.It was the contention of the learned counsel for the appellant that the
respondent had placed a purchase order on the appellant for supply, erection and
commissioning of 750 KW Wind Generator. The total price was fixed at
Rs.3.85crores. The terms of the payment was that 20% of the total order value
should be paid along with the order which amounted to Rs.77,00,000/-.
However, it was contended by the learned counsel that a sum of Rs.10,00,000/-
alone had been paid as token advance. It was contended that the respondent did
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not effect payments in accordance with the terms of the purchase order, but
however the appellant had supplied the Wind Turbine Generator along with
ancillary equipments and also erected and commissioned the same. It was also
contended by the learned counsel that the appellant had to provide land with
pathway rights for smooth movement of crane and vehicles. It was further
contended that the appellant had also identified land and had also executed a
sale deed in favour of the respondent on 21.10.2016 conveying 1.80 acres in
Pirancheri Village, Tirunelveli District. It was further contended that the
appellant had raised bills for a total sum of Rs.3.85/- crores and the respondent
had left a balance of Rs.38,00,000/-. It had been contended that several E-mails
had been issued calling upon the respondent to effect payment. It was further
contended that the clause in the purchase order did not contemplate exclusive
pathway to be granted to the site. It was further stated that a common pathway
had been provided and it was used by the respondent. It was therefore
contended by the learned counsel for the appellant that the judgment and decree
of the Trial Court should be set aside.
10.On the other hand, the learned counsel for the respondent pointed out
the terms and conditions of the purchase order which necessitated the appellant
to provide suitable land at a specified site on point basis and the same should
also be registered in favour of the respondent. The main contention of the
learned counsel for the respondent was that the appellant had not provided an
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exclusive pathway to be used by the respondent for maintenance of the Wind
Turbine Generator. In this connection, the learned counsel for the respondent
quite apart from laying specific reliance to Section 20 of the Specific Relief Act
also placed reliance on the judgment of the Hon’ble Supreme Court in Surinder
Kaur (Dead) through legal representative Jasinderjit Singh (Dead) through
legal representatives Vs Bahadur Singh (Dead) through legal representatives
reported in (2019) 8 SCC 575, wherein, the question which arose in the appeal
was as follows:
The question of law arising in these appeals is
whether a vendee who does not perform one of his
promises in a contract can obtain the discretionary
relief of specific performance of that very contract.
11.The Hon’ble Supreme Court had held as follows:
13. Explanation (ii) to Section 16(c) of the
Specific Relief Act lays down that it is incumbent on
the party, who wants to enforce the specific
performance of a contract, to aver and prove that he
has performed or has always been ready and willing
to perform the essential terms of the contract. This the
plaintiff miserably failed to do insofar as payment of
rent is concerned.
14. A perusal of Section 20 of the Specific
Relief Act clearly indicates that the relief of specific
performance is discretionary. Merely because the
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plaintiff is legally right, the court is not bound to
grant him the relief. True it is, that the court while
exercising its discretionary power is bound to exercise
the same on established judicial principles and in a
reasonable manner. Obviously, the discretion cannot
be exercised in an arbitrary or whimsical manner.
Sub-clause (c) of sub-section (2) of Section 20
provides that even if the contract is otherwise not
voidable but the circumstances make it inequitable to
enforce specific performance, the court can refuse to
grant such discretionary relief. Explanation (2) to the
section provides that the hardship has to be
considered at the time of the contract, unless the
hardship is brought in by the action of the plaintiff.
12.Pointing out the above dictum, the learned counsel for the respondent
argued that since the appellant had failed to perform their obligation to provide
pathway, the respondent was not liable to effect payment to the appellant and
stated that the Trial Court had correctly dismissed the suit.
13.We have carefully considered the arguments advanced and perused the
material records.
14.The points which arise for consideration are as follows:
(i)Whether the appellant herein was entitled for
the suit relief irrespective of whether they had
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provided land to the respondent as access pathway for
maintenance and servicing of the Wind Turbine
Generator supplied to the respondent?
(ii)Whether the land conveyed by the appellant
satisfied the condition in the purchase order for
providing suitable land by the appellant?
(iii)Whether the Trial Court was correct in
holding that the appellant had not performed their
reciprocal promise and that therefore the respondent
was not liable to effect payment for the Wind Turbine
Generator supplied, erected and commissioned?
15.Since evidence on all the three points overlapped, all the three points
are taken up for consideration and determination together.
16.The respondent had placed a purchase order on 09.11.2016 for supply
of P750/49-750 KW Wind Turbine Generator, at SF No.1848, Ayyanaruthu
Site, Near Kayathar. It was stated that land would be provided by the appellant
as per the terms of the purchase order. The total price for supply, installation,
commissioning and payment of infrastructure development charges to
TANGEDCO was Rs.385/- Lakhs. This fact is not in dispute.
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17.The payment terms had also been reduced in writing and the terms of
such payment are also not in dispute. The completion charge for the project
was determined as 31.12.2016 subject to receipt of the payment. Thereafter in
the Appendix to the purchase order, further terms and conditions had been
given.
18.Clause 2 in the said Appendix was as follows:
2.Land:
Para Enterprises agrees to provide suitable Land at
the specified site on point basis. Encumbrance
Certificate for last 30 years and Patta copy upto
previous owner’s name and pathway rights for smooth
movement of crane and vehicles will be provided by
Para Enterprises. The expenses for registration of
land in favour of Customer will be borne by Para
Enterprises. Charges, if any, for OH line and O&M
charges payable to TANGEDCO will also be borne by
Para Enterprises.
19.There is also no dispute raised that the Wind Turbine Generator was
supplied, erected and commissioned. The only dispute between the parties was
with respect to the land provided by the appellant for access by the respondent
for maintenance and other purpose of the Wind Turbine Generator. The
appellant had produced a series of E-mails marked as Ex.A4 to Ex.A13. In
Ex.A4 dated 09.05.2018, they had stated as follows:
The site was accessed through a pathway for
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construction and electrification. We feel your request
for an alternate pathway is impractical and frivolous.
Any attempt to provide you with an alternate pathway
is out of courtesy and is a contractual obligation.
Please pay your balance.
20.In Ex.A5 dated 30.05.2018, the appellant had called upon the
respondent to pay the balance amount payable to them. In Ex.A6 also dated
30.06.2018, the respondent had stated as follows:
The balance payment is being held with us
because you have not completed the project by not
providing legal pathway to our site.
However we were reminding you for the,
provision of legal pathway to complete the project for
a long time. Kindly, go through our earlier mails
requesting you to provide legal pathway. That too
was ignored by you.
21.In Ex.A8 dated 01.06.2018, the appellant again called upon the
respondent to effect payment of the balance amount. In Ex.A9, the respondent
had replied as follows:
We have dues only regarding the project which
is incomplete. Provide a legal pathway and your
money which is held for the purpose.
22.In Ex.A10, the respondent had stated as follows:
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We have been corresponding with each other in
the matter of providing a clear title over the path way
rights. Even though you have initially agreed to
provide the same with an accepted time frame, the
matter is not getting settled and is being continuing as
an issue till now in spite of our protracted pressures.
Hence, as the wind season has commenced now, we
require the clear title made over on us towards the
path way rights, so as to move men and materials to
the spot. Hence, we request you to arrange to provide
us the clear title over the path way rights on or before
15.06.2018. In case of continuing default in providing
the title over the path way rights, we would be taking
appropriate action to get the path way right on our
own and all the costs involved over the same should
be to your account only. Therefore, please arrange to
get the title of the path way right at your earliest and
however, not later than 15.06.2018. This may be
treated urgent and important and also a final notice
issued to you on this matter of providing us with the
title of the path way rights."
23.The appellant had by Ex.A13 dated 06.07.2020 stated as follows:
Further to our telecom earlier on the pathway to your
wind turbine, please find attached the alternate route
sketch.
There is a subdivided road (yellow marked) coming
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from Ayyanaroothu and goes upto to ABT location (SF
no.1838). You can approach your wind turbine at
1848 either from Ayyanaroothu or from coming via SF
no.1833. From the subdivided road, we have planned
a approach road till SF no.937 (Deva & Co) and
already from Deva & Co to your location there is
pathway which needs pathway rights from Deva,
which we will facilitate and get it.
Now the proposed road is From the subdivided road
to Deva WTG which is highlighted in blue (Proposed)
is a private land and we are in discussion with the
land owner.
Please let us have you views on the above.
For any clarification, you may contact our GM - Land
Mr. Rajasekar stationed at Tirunelveli.
24.A rough map had also been attached by the appellant to the respondent
indicating the alternative pathway.
25.It is thus seen that the only issue between the parties was with respect
to the provision of the pathway for the respondent to access the Wind Turbine
Generator. In its correspondence under Ex.A13 extracted above, the appellant
claimed to provide an alternate pathway. This would indicate an admission that
the appellant was aware that the pathway provided was not conducive for the
respondent.
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26.It is seen that notices had been exchanged between the parties with the
appellant demanding payment of Rs.38,00,000/- together with interest and the
respondent reiterating that the issue relating to land must first be resolved. The
respondent had also marked Ex.B2 series containing E-mail correspondences
between the parties. The appellant had issued a mail on 10.08.2017, wherein
they had stated as follows:
Dear sir
While we are thanking you and completely
agree with you, we would like to highlight that we
have commissioned your WTG while Rs, 38.00 lacs
payment in balance. This is not happened to anyone of
our client. We did this purely because of your supports
in critical situation and Intention to build long-term
relationship.
As we discussed the path way issue will not
take more than Rs.3.00 lacs to solve it, but present
atmosphere is not being suitable for that from our end.
So considering this situation and enjoying benefits
from WTG we kindly request you to accept our
commitment to provide break free o&m services
irrespective of path way issue and solve the path way
issues as quickly as possible, please stretch your
support further as earlier.
Thanking you and looking forward for your
supports.
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27.It is thus seen that again the appellant had admitted that the pathway
provided was not conducive. The respondent replied stating that the alternate
pathway lies in Government poromboke land and that they are not agreeable to
utilize the same. This would effectively mean that the appellant had failed to
provide a pathway and the solution provided was to encroach onto Government
poromboke land which is clearly unlawful.
28.The correspondences between the parties continued only on this issue.
The appellant had in subsequent correspondences stated that the respondent may
withhold a sum of Rs.3,00,000/- which was the cost of one acre of land in
Kayatharu Village till the pathway issues are cleared and pay the balance
amount to restart the Wind Turbine Generator. The respondent had however
replied that they would withhold 10% of the total amount payable to the
appellant and justified the same since proper pathway to the property had not
been conveyed or even provided. The correspondences thereafter turned hostile
with both parties not prepared to shift from their original stand.
29.During his cross examination, PW1, stated that under Ex.A13, an
alternate passage pathway had been provided for which the respondent had not
issued any reply. He had stated as follows:
th/rh/M/13 ;y khw;W ghij bfhLf;fg;gl;ljhf
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Fwpg;gplg;gl;Ls;sJ. mJ jah tpc&akhf
bfhLf;fg;gl;Ls;sJ rl;lg;goahd tHpg;ghij bfhLf;f
Koahj fhuzj;jpdhy;jhd; khw;Wghij bfhLj;Js;nshk;
vd;why ; rhpay;y/ mjw;F gpujpthjpfs ; jug;gpy ; gj[py;
vJt[k; tutpy;iy/
30.The witness specifically denied that an alternate pathway was
provided only because they were not able to provide a conducive pathway
DW1, during his cross examination admitted supply of the Wind Turbine
Generator and its erection, but stated that it was not possible to maintain the
same since there was no separate pathway. During his cross examination with
respect to the clause on this aspect as provided in the purchase order Ex.A3, the
witness stated as follows:
th/rh/M/3 y ; jdpg;gl;l ghij v';fSf;F
juntz;Lbkd;W Fwpg;gplgltpy;iy vd;why;
rhpay;y/ gf;fk ; ?6y ; brhy;yg;gl;Ls;sJ/ mjpy;
jdpg;gl;l ghij vd;W Fwpg;gplg;gltpy;iy vd;why;
rhpjhd;. rhl;rp ve;j ghija[k ; brhy;yg;gltpy;iy
vd;fpwhh;/ ,g;nghJ xU ghijapy ; tz;ofs;
brd;W tUfpd;wd vd;why; rhpjhd;. rhl;rp gl;lh
epyj;jpy; bry;fpwJ vd;fpwhh;/
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31.It is seen that DW1 had denied that there was no specific clause in the
purchase order about provision of a separate pathway and had further stated that
as on date, vehicles are moving in a pathway but on patta land. This would
obviously mean that the respondent had made alternate arrangements for
pathway from a patta land.
32.Section 16 (c) of the Specific Relief Act 1963 is as follows:
16. Personal bars to relief.—
Specific performance of a contract cannot be enforced
in favour of a person—
(a)……..
(b)……...
(c)who fails to aver and prove that he has performed
or has always been ready and willing to perform the
essential terms of the contract which are to be
performed by him, other than terms the performance
of which has been prevented or waived by the
defendant.
Explanation.—
For the purposes of clause (c),—
(i)where a contract involves the payment of money, it
is not essential for the plaintiff to actually tender to
the defendant or to deposit in court any money except
when so directed by the court;
(ii)the plaintiff must aver performance of, or readiness
and willingness to perform, the contract according to
its true construction.
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33.Section 20 of the Specific Relief Act 1963 is as follows:
20. Discretion as to decreeing specific performance.—
(1)The jurisdiction to decree specific performance is
discretionary, and the court is not bound to grant such
relief merely because it is lawful to do so; but the
discretion of the court is not arbitrary but sound and
reasonable, guided by judicial principles and capable
of correction by a court of appeal.
(2)The following are cases in which the court may
properly exercise discretion not to decree specific
performance:—
(a) where the terms of the contract or the conduct of
the parties at the time of entering into the contract or
the other circumstances under which the contract was
entered into are such that the contract, though not
voidable, gives the plaintiff an unfair advantage over
the defendant; or
(b)where the performance of the contract would
involve some hardship on the defendant which he did
not foresee, whereas its non-performance would
involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract
under circumstances which though not rendering the
contract voidable, makes it inequitable to enforce
specific performance.
Explanation 1.—
Mere inadequacy of consideration, or the mere fact
that the contract is onerous to the defendant or
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improvident in its nature, shall not be deemed to
constitute an unfair advantage within the meaning of
clause (a) or hardship within the meaning of clause
(b).
Explanation 2.—
The question whether the performance of a contract
would involve hardship on the defendant within the
meaning of clause (b) shall, except in cases where the
hardship has resulted from any act of the plaintiff
subsequent to the contract, be determined with
reference to the circumstances existing at the time of
the contract.
(3)The court may properly exercise discretion to
decree specific performance in any case where the
plaintiff has done substantial acts or suffered losses in
consequence of a contract capable of specific
performance.
(4)The court shall not refuse to any party specific
performance of a contract merely on the ground that
the contract is not enforceable at the instance of the
party.
34.In the instant case, the respondent had placed a purchase order on the
appellant for supply of 750 KW Wind Generator. There is no dispute that the
Wind Turbine Generator was supplied. It had been commissioned. It had been
erected and it had been working. It is to be noted from the evidence of DW1
that as on date, the respondent has an alternate pathway to access to the Wind
Turbine Generator which they accessed through patta land and not on the land
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provided by the appellant. But however, they claim that there was an obligation
on the part of the appellant to provide a separate pathway exclusively to the
respondent to access the Wind Turbine Generator. They placed reliance on
Clause 2 of the purchase order. The said Clause had been extracted above and
the same is extracted again for better appreciation.
2.Land:
Para Enterprises agrees to provide suitable Land at
the specified site on point basis. Encumbrance
Certificate for last 30 years and Patta copy upto
previous owner’s name and pathway rights for smooth
movement of crane and vehicles will be provided by
Para Enterprises. The expenses for registration of
land in favour of Customer will be borne by Para
Enterprises. Charges, if any, for OH line and O&M
charges payable to TANGEDCO will also be borne by
Para Enterprises.
35.The appellant had agreed to provide a suitable land and pathway rights
for smooth movement of crane and vehicles.
36.There is a reference in the written statement of a sale deed executed by
the appellant. It had been specifically pleaded in the written statement as
follows:
It is stated that the land sold by the plaintiff to
the defendant herein does not have any free and
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public access to the defendant and therefore, the
defendant is not and would not be in a position to
peacefully carry out the objectives of the Wind Energy
Generator.
37.The provision of land which does not provide free access can never be
stated to be compliance of Clause 2 of the Annexure to the purchase order. We
hold that the respondent was justified in withholding payment of the last 10% of
the amount payable under the purchase order.
38.The judgment relied on by the respondent has proceeded on the
ground that the purchaser of the property did not pay rent and therefore was not
entitled for specific performance of the agreement. It was observed that
payment of rent was a reciprocal promise and failure to pay rent disentitled the
vendee to seek specific performance. In the instant case, the appellant had
provided the pathway, land which cannot be put to effective use. The learned
Trial Judge had proceeded to hold that the appellant had failed in their
reciprocal promise. The correspondences extracted above also reflect that the
appellant had not actually provided an effective alternate pathway.
39.In view of that particular fact, in answer to the points framed for
consideration, we hold that the learned Trial judge was justified in holding that
the respondent had lawful reasons for not effecting payment of the balance sale
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consideration. We also hold that the appellant has to be non suited as there is
evidence that they have not produced exclusive pathway to the respondent. We
further hold that the land provided was not conducive for the respondent. We
also hold that the appellant had not performed their part of the agreement to
provide access land to the respondent.
40.Holding as above, we would dismiss the Appeal and confirm the
judgment and decree dated 27.07.2023 in C.O.S. No. 413 of 2022, on the file of
Principal Judge, Commercial Courts Egmore, Chennai. The Appeal stands
dismissed with costs.
(C.V.K.,J.) (K.B.,J.)
Index: Yes/No 30.04.2026
Speaking/Non-speaking order
Neutral Citation: Yes/No
sli
To
The Principal Judge,
Commercial Courts Egmore,
Chennai.
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C.V.KARTHIKEYAN, J.
AND
K.KUMARESH BABU, J.
sli
Pre-delivery Judgment in
30.04.2026
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