Telangana High Court
Smt. T.Rukmini Devi, vs Mr.G.V.R.Sastry, on 12 December, 2023
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
APPEAL SUIT No.268 of 2007
JUDGMENT:
This appeal is filed by the appellant - defendant aggrieved by the
judgment and decree dated 21.02.2007 in O.S.No.175 of 2003 on the file of the
V Additional District Judge (Fast Track Court), Ranga Reddy District at
L.B.Nagar.
2. The parties are hereinafter referred as arrayed before the trial court.
3. The respondent - plaintiff filed the suit for specific performance of
agreement of sale dated 26.05.2003 contending that the appellant - defendant
was the owner of the suit schedule property i.e. H.No.37-18/72, constructed on
Plot No.923 in Survey No.218/1, totally admeasuring 350 square yards situated
at Defence Cooperative Housing Society, Malkajgiri, Ranga Reddy District.
The plaintiff came to know that the defendant intended to sell the said property
through mediators and after negotiations entered into an agreement of sale with
the defendant on 26.05.2003 for purchase of the said property for a total sale
consideration of Rs.19,50,000/-. An amount of Rs.5,60,000/- was paid by the
plaintiff by way of advance and part consideration to the defendant in the
following manner:
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Sl. Date Type of Transaction Amount (in Rs.)
No.
1. 26.05.2003 As per agreement Rs.1,00,000/-
2. 28.05.2003 Account Transfer Rs.50,000/-
3. 28.05.2003 Cheque No.044091 Rs.50,000/-
4. 06.06.2003 Account Transfer Rs.1,00,000/-
5. 06.06.2003 Account Transfer Rs.1,00,000/-
6. 06.06.2003 Account Transfer Rs.1,00,000/-
7. 06.06.2003 Account Transfer Rs.60,000/-
Total: Rs.5,60,000/-
4. The plaintiff made all arrangements for obtaining house loan. The
defendant had not cooperated with the plaintiff in getting the loan sanctioned.
However, the plaintiff got the housing loan sanctioned from Canfin Homes
Limited. When the plaintiff approached the defendant for execution of sale
deed, the defendant went on evading the same and tried to go back from the
agreement. The plaintiff got issued a legal notice dated 22.06.2003 to the
defendant demanding execution of sale deed. The defendant issued a reply
notice dated 11.07.2003 disputing Rs.1,00,000/- payment made by the plaintiff,
which was acknowledged by the defendant and incorporated in the agreement of
sale itself. In the reply, the defendant demanded for extra payment of
Rs.1,00,000/-. As a matter of fact, the plaintiff had to pay only Rs.13,90,000/-,
whereas the defendant fraudulently demanded Rs.14,90,000/-. The defendant
took a stand that a self-cheque for Rs.50,000/- was given by the plaintiff
towards payment of the said Rs.1,00,000/- and that the said cheque could not be
encashed for lack of plaintiff's signature on the reverse of the same. The
defendant in such a case should have the cheque with her, but she was not
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mentioning the number or date of the said cheque and was not coming forward
to produce the same. There was no explanation about the remaining
Rs.50,000/-. There was no explanation as to why she did not mention in the
agreement or in any of the subsequent receipts executed by her about the non-
payment of the amount mentioned in the cheque. The said false plea was taken
by the defendant only after receipt of notice from the plaintiff. The fact that the
defendant had been receiving subsequent payments and went on issuing receipts
against them without any demur would show that the earlier Rs.1,00,000/-
payment was in fact made by the plaintiff.
4.1. The plaintiff further submitted that he was stationed at Chennai. As soon
as the reply was given by the defendant to his counsel at Hyderabad and he
came to know about the same, he tried to contact the defendant to explain the
discrepancy about the actual payment made by him, but the defendant did not
allow the plaintiff to communicate with her and avoided him. The mediator
who helped in finalization of the deal had also tried to intervene and settle the
matter. While the negotiations were going on for resolving the dispute about
payment of Rs.1,00,000/-, the defendant got issued a notice dated 23.07.2003
stating that she unilaterally cancelled the agreement of sale dated 26.05.2003
and offered to pay Rs.4,60,000/- to the plaintiff's representative on production
of original agreement. The plaintiff submitted that he was having an account
with ICICI Bank. The defendant without his consent or knowledge unilaterally
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transferred Rs.4,60,000/- on 06.08.2003 to his account through internet and
issued a letter dated 07.08.2003 to that effect. The said unilateral payment was
against the offer made by the defendant in her own reply dated 23.07.2003, but
she clandestinely paid back part of the amount received by her without the
consent of the plaintiff into his account. Thus, the refund of part of the sale
consideration was not binding on the plaintiff and it could not have any effect
on the validity of the agreement of sale.
4.2. The plaintiff further submitted that the defendant right from the beginning
was trying to violate the agreement of sale by not cooperating in obtaining
house loan. Inspite of the non-cooperation of the defendant, the plaintiff
obtained the loan and was always ready and willing to pay the balance sale
consideration. The defendant raised a false dispute about non-payment of
Rs.1,00,000/-. Without resolving the said dispute, she tried to cancel the
agreement of sale and refunded part of the sale consideration received by her
without the consent of the plaintiff, and transferred to his bank account through
internet. Thus, the defendant exhibited malafide intention from the beginning
and committed breach of the agreement with an ulterior motive and without any
justification. The defendant tried to throw the blame on the plaintiff for
cancellation of agreement. The plaintiff made a demand for registration of sale
deed through his notice dated 22.06.2003 within a period of 45 days. Even
otherwise, the time was not the essence of the contract in the agreement. There
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was no forfeiture clause or clause for cancellation of the agreement relating to
the time. The parties had generally agreed to complete the deal within a period
of 45 days. Thus, the defendant had no legal right to cancel the agreement on
the ground of completion of 45 days. The defendant had in fact extended the
said time through her letter dated 11.07.2003. The said letter contained a
dispute about the quantum of balance consideration payable by the plaintiff.
Thus, it was a fresh offer for negotiations. The defendant prolonged the
negotiations and finally cancelled the agreement. The defendant illegally
retained an amount of Rs.1,00,000/- in the above deal. The defendant had been
blowing hot and cold and repudiated the admitted payment and tried to rescind
the agreement without any justification. The plaintiff was willing to pay the
entire balance sale consideration of Rs.18,50,000/-. The plaintiff made number
of efforts to convince the defendant even after receipt of notice dated
07.08.2003. The mediator Mr.B.Satish played an important role in settling the
deal. He happened to be the attesting witness for the agreement and also tried to
convince the defendant and to instill good sense in her. In spite of the efforts
made by the plaintiff, the defendant was adamant and committed breach of the
agreement, as such filed the suit for specific performance of agreement of sale
dated 26.05.2003, and in the alternative prayed for refund of Rs.1,00,000/-
together with interest @ 24 % per annum, which was illegally withheld by the
defendant from the date of suit till realization.
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5. The defendant filed written statement admitting that she was the owner of
the suit schedule property and that she entered into an agreement of sale with
regard to the suit schedule property on 26.05.2003 with the plaintiff for a sale
consideration of Rs.19,50,000/-, but denied that an amount of Rs.1,00,000/- was
paid as advance on the date of agreement. She contended that the plaintiff
handed over a self cheque for encashment and promised to credit further amount
of Rs.50,000/- in the account of the defendant and on the said assurance, she
executed the agreement of sale and acknowledged the receipt of Rs.1,00,000/-
in the said agreement. The self cheque could not be encashed, as the plaintiff
had not signed on the reverse of the same. The plaintiff deposited an amount of
Rs.50,000/- in the account of the defendant on 26.05.2003 as is evident from the
statement of account issued by the bank. The un-encashed cheque was returned
to the plaintiff. Since the defendant was not aware of the legal complications,
she had not obtained any receipt for the returned cheque nor demanded payment
in lieu of the same. The plaintiff had taken undue advantage of the same and
issued the notice and filed the suit. There was no payment of Rs.50,000/- on
28.05.2003 through account transfer as mentioned in the plaint. The defendant
received cheque bearing No.044091 dated 28.05.2003, but the same was
encashed on 30.05.2003. She admitted payment of Rs.3,60,000/- through
account transfer on 06.06.2003 and contended that she in all received a sum of
Rs.4,60,000/-. She contended that the plaintiff never demanded her for
execution of the sale deed and came into contact with her only by issuing a legal
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notice through his advocate, as such she evading or denying the execution of
sale deed would not arise at all. She further submitted that she agreed to
execute the sale deed even after lapse of 45 days, but before 20.07.2003. She
never demanded any extra payment as mentioned in the plaint, but only claimed
what she was entitled. She further contended that if the version of the plaintiff
was that an amount of Rs.1,00,000/- was paid on 26.05.2003 as acknowledged
in the agreement, there was no need for him to deposit a further sum of
Rs.50,000/- on the same date in her account. The plaintiff had to pay a sum of
Rs.19,00,000/- after receipt of Rs.50,000/- on 26.05.2003. The defendant had
accepted further payment of Rs.4,10,000/- through transfer of funds and cheque
dated 28.05.2003 bearing No.044091.
5.1. She further contended that the plaintiff never contacted her after issuance
of notice dated 22.06.2003 nor paid the balance amount of Rs.14,90,000/- even
before the extended time up to 20.07.2003. Since the plaintiff did not pay the
balance sale consideration within 45 days from the date of agreement or before
20.07.2003, she had withdrawn the agreement of sale and treated it as cancelled
and informed the same to the plaintiff through his advocate on 23.07.2003. The
plaintiff had not denied the averments of her reply received by his advocate on
11.07.2003. She further contended that the very fact that the plaintiff did not
chose to return the amount back to the defendant either through internet or by
way of Demand Draft would confirm that the plaintiff had accepted the
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contention of the defendant's reply received by his advocate on 11.07.2003.
She further contended that the very fact that the plaintiff could get the loan
sanctioned would prove that the involvement or cooperation of the defendant
was not required for the same. She further contended that the notice dated
22.06.2003 showing the willingness of the plaintiff to get the sale deed
registered was received by her on 10.07.2003, after lapse of 45 days fixed for
completion of contract. As such, she had every right to repudiate the contract
and cancel the agreement. The extra time granted was only to facilitate the
advocate to contact his client and the same could not be treated as extension of
time or renewal of contract. She further contended that the suit for specific
performance was itself bad in law unless the suit was amended to declare the
cancellation of agreement of sale as illegal and further contended that since no
amount was due to the plaintiff, she was not liable to pay Rs.1,00,000/- and
interest thereon. She further submitted that she was not interested in selling the
house to anyone and the same was repaired by investing further amounts and
prayed to dismiss the suit with exemplary costs.
6. Basing on the said pleadings, the trial court framed the issues as follows:
(i) Whether the plaintiff is entitled for specific performance of agreement of sale
dated 26.05.2003?
(ii) Whether the plaintiff is entitled to a direction to the defendant, alternatively,
to pay Rs.1,00,000/- together with interest?
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(iii) To what relief?
7. The plaintiff examined himself as PW.1 and got examined the mediator
Mr.B.Satish as PW.2. Exs.A1 to A6 were marked on his behalf. The defendant
examined herself as DW.1 and Exs.B1 to B8 were marked on her behalf.
8. On considering the oral and documentary evidence on record, the trial
court decreed the suit directing the defendant to execute a registered sale deed in
favour of the plaintiff in respect of the suit schedule property either by herself or
through her General Power of Attorney (for short "GPA") holder after receiving
the remaining sale consideration of Rs.18,50,000/- from the plaintiff within two
months from the date of the judgment, with the expenses of the plaintiff and if
the defendant failed to do so, the plaintiff was at liberty to obtain the registered
sale deed through the process of Court after depositing the sale consideration of
Rs.18,50,000/- into the Court.
9. Aggrieved by the said judgment and decree, the defendant preferred this
appeal contending that the lower court failed to see that the defendant refunded
the entire amount of Rs.4,60,000/- sent to her husband's account through E-
banking, as evident from Exs.B7 and B8 and the plaintiff received the same
without any demur and the same was also informed to the plaintiff under Ex.A5
dated 07.08.2003. The plaintiff failed to give any reply to the said legal notice
issued by her. The plaintiff kept quiet for about six months after sending Ex.A2
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legal notice dated 22.06.2003 which itself would disclose that the plaintiff was
never ready and willing to perform his part of the contract under Ex.A1. The
lower court failed to see that the conduct of the plaintiff was dubious from the
beginning and he deliberately issued Ex.A2 legal notice with false allegations of
payment of Rs.5,60,000/- and sanction of loan, contrary to the terms of Ex.A1
before the expiry of 45 days to avoid payment, but thereafter kept quiet for
about six months. The lower court failed to see that there was no plea made by
the plaintiff that any amount was paid before Ex.A1 agreement and there was no
plea taken in the plaint with regard to the payment of Rs.50,000/- on
21.05.2003. Therefore, the evidence of PW.1 that an amount of Rs.50,000/-
was paid on 21.05.2003 was without any plea and could not be taken into
consideration. The lower court failed to see that there was no dispute except
with regard to the amount of Rs.1,00,000/- allegedly paid under Ex.A1
agreement. The defendant clearly explained it by saying that it was on account
of the trickery played by the plaintiff by giving a self-drawn cheque for
Rs.50,000/- without signature on the reverse, and as the same could not be
encashed, it was returned to the plaintiff. Nothing was elicited from DW.1 to
disbelieve her version. The lower court failed to see that the evidence of PW.2
was contrary to the evidence of PW.1. There was express stipulation of time
under Ex.A1 for 45 days, which would show that time was the essence of the
contract. The plaintiff's plea under Ex.A2 seeking time to enable him to obtain
sale deed was contrary to Ex.A1. The evidence of PW.2 that PW.1 had obtained
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loan of Rs.16,00,000/- to Rs.18,00,000/- which was higher than the balance sale
consideration would prove that Ex.A2 itself was dubious. The lower court
failed to see that the plaintiff could not take the plea that Rs.1,00,000/- was paid
under Ex.A1 on 26.05.2003 and at the same time Rs.50,000/- was paid on
21.05.2003, in which case, the total amount would go beyond Rs.6,10,000/-,
contrary to his own plea. The statement of PW.2 in his cross-examination that
on 21.05.2003, the plaintiff offered a cheque of Rs.50,000/-, but the defendant
did not accept the same would also probabilise the defendant's case that an in-
effective cheque was given which could not be encashed. The lower court
failed to see that Ex.A6 was a fabricated document brought into existence in
collusion with PW.2 after the suit was filed. The evidence of PW.1 that four
persons including the defendant's husband were present, but he did not know
who was the scribe of Ex.A6 would create any amount of doubt about his
evidence. The lower court failed to see that the conduct of the plaintiff in
giving invalid cheque and the interpolation in Ex.A1 and his rushing with
Ex.A2 legal notice before 45 days and serving the same after 45 days and
keeping quiet thereafter would create any amount of doubt about his bonafides.
The lower court failed to see that though DW.1 reported no objection in her
cross-examination for sending Ex.A6 receipt for expert opinion, no steps were
taken by the plaintiff for such examination and it was only after the defendant
left to USA, he came with an application in a half-hearted manner and got it
dismissed without really pressing for it. The lower court failed to see that the
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defendant had taken a consistent plea that she received only Rs.4,60,000/-
which was apparent by record under Exs.B7 and B8, which were not disputed
and she had refunded the amount of Rs.4,60,000/- received by her through E-
banking in the same way and further informed the plaintiff about the remittance
under Ex.A5 legal notice dated 07.08.2003, but, there was no protest from the
plaintiff. He would not have kept quiet afterwards if really there was a shortfall
of Rs.1,00,000/- as contended by him. The lower court failed to see that the
conduct of the person seeking specific performance must be blemishless and
gravely erred in decreeing the suit in favour of the plaintiff. The lower court
failed to see that the defendant at the earliest opportunity under Ex.A3 itself
stated that the self-cheque for Rs.50,000/- given by the plaintiff could not be
encashed and hence returned to him and she had consistently taken the same
stand where as the plaintiff had come with a false explanation that Rs.1,00,000/-
was paid under Ex.A1, was not paid on 26.05.2003, but was paid on
21.05.2003, which was found false by the lower court itself. The lower court
failed to see that the remittances made by DW.1 under Exs.B7 and B8 were
through E-banking and erred in finding fault with the defendant without any
reason and prayed to allow the appeal.
10. Heard Sri M.V.Durga Prasad, the learned counsel for the appellant and
Sri M.V.Suresh, the learned counsel for the respondent.
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11. The learned counsel for the appellant contended that there was no dispute
with regard to payment of Rs.4,60,000/- by the respondent - plaintiff to the
husband of the appellant through account transfer which was mentioned at serial
nos.4 to 7 in the plaint. Two payments were shown on 28.05.2003, one through
account transfer and other through cheque bearing No.044091. No amount was
paid through account transfer on 28.05.2003. Only a cheque bearing
No.044091 was received by the appellant - defendant on 30.05.2003 and no
amount of Rs.1,00,000/- was paid on 26.05.2003. On the date of agreement, the
respondent - plaintiff gave a self-cheque for Rs.50,000/- without attesting his
signature on the back of the cheque, as such the same was returned to the
plaintiff, but the defendant failed to obtain any acknowledgment of the same.
Taking advantage of the acknowledgment made in the agreement of sale by the
defendant for receipt of Rs.1,00,000/-, the respondent - plaintiff was contending
that Rs.1,00,000/- was paid on the date of agreement of sale. The defendant,
even without making any payment, signed on the agreement of sale.
Rs.50,000/- was sent through bank remittance on the same night i.e. on
26.05.2003 by the respondent - plaintiff to the account of the defendant.
Though the 45 days period which was fixed for payment of the balance sale
consideration would expire by 10.07.2023, the appellant - defendant extended
the time for another 10 days. She gave the legal notice extending the time for
payment of the balance sale consideration to the respondent - plaintiff till
20.07.2023, which would prove the bonafides of the defendant. But, no reply
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was given by the respondent - plaintiff or by his counsel to the legal notices
marked under Exs.A4 and A5 dated 23.07.2003 and 07.08.2003. The conduct
of the respondent- plaintiff was trickery from the beginning. The plaintiff made
the defendant to sign on the agreement of sale without actually paying the
amount. He gave notice before the expiry of 45 days, but served the same after
the expiry of the agreement period. There was no incident pleaded and proved
to provoke for issuing Ex.A2 notice. There was no necessity for the plaintiff to
plead that time was not the essence of the contract except to avoid it. The
respondent - plaintiff wanted to pay the balance money at his convenience. The
plaintiff maintained stoic silence from 22.06.2003. Even without issuing any
reply to the notices issued by the appellant - defendant marked under Exs.A4
and A5, he filed the suit after four (04) months on 08.12.2003. He tried to
create an alibi for non-payment and blamed the defendant as non-
communicable, but not replied through any advocate whom he already
approached. The plaint and evidence of PWs.1 and 2 were full of
contradictions. For claiming alternative relief, the respondent - plaintiff had to
prove payment of Rs.1,00,000/-. The respondent - plaintiff for the first time
during the trial alleged that he made payment of Rs.50,000/- on 21.05.2003.
When the agreement was finalized only on 26.05.2003, any payment could not
be made prior to that date. The plaintiff failed to prove his "readiness and
willingness" in payment of balance sale consideration and relied upon the
judgments of the Hon'ble Apex Court in I.S.Sikandar (Dead) by LRs. v.
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K.Subramani and Others 1, Mohinder Kaur v. Sant Paul Singh 2, Lourdu
Mari David and Others v. Louis Chinnaya Arogiaswamy and Others 3 ,
T.Jagannadam (Died) and Another v. Akkineni Radhakrishna and
Another 4 , M.N.Mohammad Mirza @ Mirza v. B.Subhan Saheb 5 , Atma
Ram v. Charanjit Singh 6, Kamal Kumar v. Premlata Joshi and Others 7,
Shenbagam and Others v. KK Rathinavel 8 , C.S.Venkatesh v.
A.S.C.Murthy 9.
12. The learned counsel for the respondent on the other hand contended that
the agreement of sale marked under Ex.A1 would disclose that the appellant -
defendant had acknowledged receipt of Rs.1,00,000/-. When the defendant was
contending contrary to the written recitals of the document, the burden lies upon
her to prove the same. No specific plea was taken by the defendant in Ex.A3
notice that she was forced to sign on Ex.A1. The defendant had taken a specific
defence that she returned the cheque to the plaintiff through PW.2, but no such
plea was taken by her in her written statement. The plea taken by her in her
written statement was that the respondent - plaintiff had given a self-cheque
which was not signed on the back, but no evidence was produced by her to
(2013) 15 SCC 27
(2019) 9 SCC 358
(1996) 5 SCC 589
1997 (6) ALD 261 (DB)
1993 (3) ALT 634 (DB)
(2020) 3 SCC 311
(2019) 3 SCC 704
2022 SCC Online SC 71
(2020) 3 SCC 280
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prove the same. The details of the cheque number were not mentioned by her.
Time was not the essence of the contract. The defendant could not unilaterally
fix the time as essence of the contract in a subsequent notice. The plaintiff
issued Ex.A2 notice before the expiry of 45 days and informed that he was
ready and willing to perform his part of the contract by paying the balance sale
consideration. The respondent - plaintiff had also applied for housing loan and
the same was sanctioned, which would prove that he was having capacity to pay
the balance sale consideration. There was no plea taken by the defendant that
the plaintiff had no capacity to pay the balance sale consideration or that the
plaintiff had not expressed his "readiness and willingness" to pay the balance
sale consideration. No issue was framed by the trial court on these aspects or no
ground was raised in the appeal. No defence was taken that loan was not
sanctioned or that any hardship would be caused to the defendant in executing
the agreement of sale due to escalation of price and relied upon the judgments
of the Hon'ble Apex Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri
and another 10 and of the Constitutional Bench Judgment in Chand Rani
(Smt.) (Dead) by LRs. v. Kamal Rani (Smt.)(Dead) by LRs. 11 ,
P.Purushottam Reddy and another v. M/s.Pratap Steels
Limited 12,P.S.Ramakrishna Reddy v. M.K.Bhagyalakshmi and Another 13,
AIR 1977 SC 1005
(1993) 1 SCC 519
2002 (2) ALT (SC) 14 (SB)
AIR 2007 SC 1256
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V.Pechimuthu v. Gowrammal 14 and of the High Court of Bombay in
Smt.Swarnam Ramachandran and another v. Aravacode Chakungal
Jayapalan 15 and of the Hon'ble Apex Court in Zarina Siddiqui v.
A.Ramalingam @ R.Amarnathan 16, K.Prakash v. B.R.Sampath Kumar 17.
13. Now the points for consideration in this appeal are:
1) Whether time is essence of the contract?
2) Whether the plaintiff is ready and willing to perform his obligations under
the contract?
3) Whether the conduct of the plaintiff is blemishless and whether he is entitled
for specific performance of agreement of sale dated 26.05.2003?
4) Whether the plaintiff could seek the relief of specific performance of sale
without challenging the cancellation of agreement of sale?
5) Whether the plaintiff is entitled for the alternate relief of return of
Rs.1,00,000/- with interest?
6) To what result?
P O I N T No.1:
Whether time is essence of the contract?
AIR 2001 SC 2446
AIR 2000 Bombay 410
AIR 2015 SC 580
2014 (6) ALD 196 (SC)
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14. It is well settled principle that in the case of sale of immovable property,
time is never regarded as the essence of the contract. In fact, there is a
presumption against time being the essence of the contract. However, specific
performance of contract is an equitable remedy and it has to be ascertained from
the terms of the contract whether the parties had specified any time limit within
which the contract has to be completed. An intention to make time the essence
of the contract must be expressed in unequivocal language. Even, if it is not the
essence of the contract, the Court may infer that the contract has to be
performed within a reasonable time, if the conditions are evident from the
express terms of the contract, from the nature of the property and from the
surrounding circumstances for example, the object of making the contract.
15. As seen from the terms of the contract of agreement of sale dated
26.05.2003, the parties agreed that:
1) The seller agreed to sell the schedule property in favour of the purchaser for a
total sale consideration of Rs.19,50,000/-.
2) The purchaser has paid an amount of Rs.1,00,000/- to the seller towards part
payment of sale consideration and advance. The seller hereby acknowledges
the receipt of the same.
3) The balance sale consideration is agreed to be paid by the purchaser within
45 days from the date of the agreement at the time of the execution of sale deed.
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16. It was also mentioned in the agreement that the seller wanted to sell the
schedule property due to her personal necessities and the purchaser came
forward to purchase the same subject to the above covenants. The agreement of
sale was entered on 26.05.2003 and as per the terms agreed there on an amount
of Rs.1,00,000/- was paid towards part payment of sale consideration and
advance and the balance amount was agreed to be paid by the plaintiff within 45
days from the date of the agreement i.e. the same would expire by 10.07.2003.
But, in the meanwhile, the respondent - plaintiff had issued a legal notice
marked under Ex.A2 dated 22.06.2003 stating that he paid an amount of
Rs.5,60,000/- towards sale consideration and that he applied for housing loan
from Canfin Homes Limited and that loan was sanctioned to a tune of
Rs.16,00,000/- under sanction letter dated 12.06.2003 and he wanted to get the
sale deed executed by payment of balance sale consideration. As the defendant
orally communicated to him that she was not interested in selling house and
wanted to cancel the agreement, issued the notice calling upon her to signify her
willingness for execution of the sale deed as per the terms of the agreement.
17. To the said legal notice issued by the respondent - plaintiff, the appellant
- defendant issued a reply notice on 11.07.2003 disputing the receipt of
Rs.1,00,000/- as mentioned in Para 2 of the agreement. She contended that no
payment was made on the date of agreement, but a self-cheque for Rs.50,000/-
was handed over to her for encashment as part payment, but the same could not
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be encashed as the plaintiff had not signed on the reverse of the cheque as
required. She stated that she waited for the entire 45 days from the date of
agreement for receipt of balance sale consideration of Rs.14,90,000/-, but the
plaintiff had never informed her about his willingness to fulfill his part of the
contract within the said period. But, to keep up good relations she stated that,
even then she was prepared to execute the sale deed for the same sum of
Rs.19,50,000/- provided, the plaintiff would pay the balance amount of
Rs.14,90,000/- before 20.07.2003 and get the sale deed registered in his favour.
18. Thus, a further time was granted by the defendant to pay the balance
amount. No reply was given by the plaintiff for the said letter dated 11.07.2003.
The defendant addressed another letter dated 23.07.2003 to the plaintiff through
her counsel stating that as the balance consideration was not paid within 45 days
from the date of agreement or even before the extended date i.e. before
20.07.2003, she was not interested to sell the schedule property and further
informed that the agreement of sale dated 26.05.2003 would stand withdrawn
and asked to depute a representative along with the original agreement to
receive the amount of Rs.4,60,000/- received by her. No reply was given by the
respondent - plaintiff to the said letter dated 23.07.2003 also. Thereafter, the
appellant - defendant vide letter dated 07.08.2003 marked under Ex.A5, stated
that since the plaintiff failed to depute his representative for receiving the
amount of Rs.4,60,000/-, the defendant transferred the said sum of
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Rs.4,60,000/- to the plaintiff's account with ICICI Bank through internet
banking on 06.08.2003 and asked to confirm and acknowledge the same and
return the original agreement duly cancelled. No reply was given by the
respondent - plaintiff to the said letter dated 07.08.2003 also, but filed the suit
subsequently on 08.12.2003 (4 months later).
19. The agreement of sale marked under Ex.A1 would specify the time for
completion of the balance sale consideration as within 45 days from the date of
the agreement. The agreement would also reveal that the defendant intended to
sell the property due to her personal necessities. She also extended the time for
a further period of 10 days even after the completion of the agreed period. But
no reply was given by the plaintiff expressing his willingness to pay the balance
sale consideration.
20. The contention of the learned counsel for the respondent - plaintiff was
that time was not the essence of the contract and relied upon the judgments of
the Hon'ble Apex Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri
and Another (cited supra), wherein it was held that:
"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 immoveable property it will normally
be presumed that the time is not the essence of
the contract. (vide Gomathinayagam, Pillai &
Ors. v. Palaniswami Nadar) [AIR 1967 SC
868 at Page 871]. It may also be mentioned that
the language used in the agreement is not such
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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."
21. The learned counsel for the respondent - plaintiff also relied upon the
Constitutional Bench Judgment of the Hon'ble Apex Court in Chand Rani
(Smt.)(Dead) by LRs. v. Kamal Rani (Smt.)(Dead) by LRs. (cited supra),
wherein after analyzing the case law on the aspect, it was held therein that:
"25. From an analysis of the 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 the 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:
* From the express terms of the contract;
* From the nature of the property; and
* From the surrounding circumstances,
for example: the object of making the
contract."
22. The learned counsel for the respondent - plaintiff also relied upon the
judgment of the Hon'ble Apex Court in P.Purushottam Reddy and another v.
M/s.Pratap Steels Limited (cited supra), wherein it was held that:
"Time is not the essence of the contract,
however parties may intend to make time as
essence of the contract."
23. The learned counsel for the respondent - plaintiff also relied upon the
judgment of the High Court of Bombay in Smt.Swarnam Ramachandran and
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another v. Aravacode Chakungal Jayapalan (cited supra), wherein it was
held that:
"Ordinarily, time is not the essence of a contract
for the sale of immovable property. The parties,
in a given case, may make time the essence
either expressly in terms which unmistakably
provide that they intended to do so. Alternately,
making of time as the essence of a contract may
be inferred from the nature of the contract, the
property or the surrounding circumstances. A
mere stipulation in a contract laying down the
time for performance is not sufficient to make
time the essence of a contract for sale of
immovable property. A party to a contract
cannot by his unilateral act make time the
essence unless the circumstances are such as
would establish that the other party to the
contract had delayed or defaulted in the
performance of his obligations under the
agreement. Moreover, the stipulation of a
particular date by which the purchase price is to
be paid would not necessarily result in an
invalidation of the right of the purchaser if the
payment was not effected by that date. So long
as the purchaser is willing to make payment on
or before the date which was prescribed or
within a reasonable time, the ordinary
presumption of time not being the essence of the
contract for the sale of immovable property
would not be displaced."
24. In the present case, the parties had expressly stipulated in clause 3 of the
agreement, the time for performance of the contract as 45 days from the date of
agreement of sale on 26.05.2003. The respondent - plaintiff though stated that
he was willing to make payment on or before the prescribed date and that he
obtained housing loan on 12.06.2003, failed to make the payment or expressed
his willingness for making the balance payment within the stipulated period or
within the extended period. Considering the circumstances of the case, wherein
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the defendant intended to sell the property for her personal necessities and the
parties had expressly stipulated time as the essence of the contract and the
circumstances wherein, the defendant had also extended the time for a further
period of 10 days, but the plaintiff remained silent without making any payment
or expressing his "readiness and willingness" to make the balance payment, it is
considered that time is the essence of the contract. It would also establish that
the respondent - plaintiff had delayed or defaulted the performance of his
obligations under the agreement by raising a dispute with regard to the payment
of Rs.1,00,000/-.
P O I N T No.2:
Whether the plaintiff is ready and willing to perform his obligations under
the contract?
25. Section 16 of the Specific Relief Act, 1963 provides certain bars to the
relief of specific performance. Section 16(c) of the Specific Relief Act
mandates "readiness and willingness" on the part of the plaintiff as a condition
precedent for obtaining the relief of grant of specific performance. In a suit for
specific performance, the plaintiff must allege and prove continuous "readiness
and willingness" to perform the contract on his part from the date of the contract
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and the burden is always on the plaintiff. The Hon'ble Apex Court in
J.P.Builders and Another v. A.Ramadas Rao and Another 18, held that:
"It is settled law that even in the absence of
specific plea by the opposite party, it is the
mandate of the statute that the plaintiff has to
comply with Section 16(c) of the Specific Relief
Act and when there is non-compliance with this
statutory mandate, the Court is not bound to
grant specific performance and is left with no
other alternative but to dismiss the suit. It is also
clear that readiness to perform must be
established throughout the relevant point of
time. "Readiness and willingness" to perform
the part of the contract has to be
determined/ascertained from the conduct of the
parties."
26. In His Holiness Acharya Swamiganesh Dassji v. Shri Sita Ram
Thapar 19 , a 2-Judge Bench of the Hon'ble Apex Court observed that
"readiness" means the capacity of the plaintiff to perform the contract, which
would include the financial position to pay the purchase price and to ascertain
"willingness", the conduct of the plaintiff has to be properly scrutinized. The
Court noted that:
"There is a distinction between "readiness" to
perform the contract and "willingness" to
perform the contract. By "readiness", it may be
meant the capacity of the plaintiff to perform the
contract which includes his financial position to
pay the purchase price. For determining his
willingness to perform his part of the contract,
the conduct has to be properly scrutinized. The
factum of "readiness and willingness" to
(2011) 1 SCC 429
(1996) 4 SCC 526
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perform the plaintiff's part of the contract is to
be adjudged with reference to the conduct of the
party and the attending circumstances. The court
may infer from the facts and circumstances
whether the plaintiff was ready and was always
ready and willing to perform his part of the
contract."
27. In P.Meenakshisundaram v. P.Vijayakumar and Another 20 , the
Hon'ble Apex Court while dealing with a suit for specific performance of
contract for sale of an immovable property which had a mortgage over it held
that:
"8.As regards suit for specific performance, the
law is very clear that the plaintiff must plead and
prove his readiness and willingness to perform
his part of the contract all through i.e., right
from the date of the contract till the date of
hearing of the suit. If respondent No.1 was well
aware about the encumbrance and the parties
had chosen that the balance consideration be
paid to the appellant before 20.03.2001 so that
the sale deed could be registered without any
encumbrance, it was for respondent No.1 to
have taken appropriate steps in that behalf for
completion of transaction. As a matter of fact,
the first step thereafter was six months after the
deadline namely on 22.09.2001 when the
communication was sent along with amount of
Rs.10 lakhs. The written submissions filed on
behalf of respondent No.1 also do not indicate
any steps till this time so as to say that he was all
the while ready and willing to complete the
transaction."
28. In order to demonstrate his "readiness and willingness" to perform the
contract, the respondent - plaintiff alleged that he issued a legal notice vide
Ex.A2 stating that the loan was sanctioned to a tune of Rs.16,00,000/- under
(2018) 15 SCC 80
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sanction letter dated 12.06.2003 and that he wanted to get the sale deed
executed by payment of balance sale consideration. But, the respondent -
plaintiff failed to file the loan sanction letter before the Court. The same was
not marked as an exhibit by the plaintiff. The respondent - plaintiff had not
filed any statement of his bank account to show that the balance amount was
available with him. It was reported by the learned counsel for the appellant that
even after the decretal of the suit, the respondent - plaintiff had deposited the
balance amount, but had immediately withdrawn the same.
29. The learned counsel for the respondent - plaintiff contended that no plea
was taken by the defendant with regard to the plaintiff's "readiness and
willingness" to pay the balance sale consideration within the stipulated time and
that no issue was framed and no ground was raised in the appeal that the
plaintiff had no capacity to pay the balance sale consideration.
30. But, as rightly contended by the learned counsel for the appellant,
statutory requirements need not be pleaded and whether pleaded or not,
discretion has to be exercised by the Court to see whether there was "readiness
and willingness" on the part of the plaintiff to pay the balance sale
consideration. Mere plea of readiness and willingness on the part of the
plaintiff is not sufficient without proof. There is no proof that the plaintiff has
ability to pay the balance sale consideration inspite of Ex.A2 notice and the
reply given by the defendant under Ex.A3. The plaintiff never showed his
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eagerness or readiness to perform his part of the contract. His stoic silence after
Ex.A3 and after refund of money for months together, is fatal to his own case.
He failed to file any evidence to show that loan was sanctioned and that he was
ready and willing to pay the balance sale consideration. As such, the point No.2
is also answered in favour of the appellant - defendant as against the respondent
- plaintiff holding that the plaintiff failed to prove his "readiness and
willingness" to perform his obligations under the contract.
P O I N T No.3:
Whether the conduct of the plaintiff is blemishless and whether he is
entitled for specific performance of agreement of sale dated 26.05.2003?
31. As the grant of specific performance is an equitable relief, the conduct of
the plaintiff should be unblemished to grant the said relief. The plaintiff issued
Ex.A2 legal notice on 22.06.2003 calling upon the defendant to execute the sale
deed as per the terms of the agreement within 15 days from the date of receipt
of the notice. Though the notice was dated 22.06.2003, it was sent to the
defendant by speed post and was received by her on 10.07.2003. As the 45 days
period would expire by 10.07.2003, the plaintiff chose to send the notice to the
defendant only by that date so as to buy another 15 days time for payment of
balance sale consideration. Though the plaintiff was a resident of Chennai, the
notice was sent by the counsel representing the plaintiff from Secunderabad. As
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such, it would not take so much time from 22.06.2003 to 10.07.2003, when sent
by speed post. No incident of provocation was stated by the respondent -
plaintiff for issuing the notice on 22.06.2003 calling upon the defendant to
signify her willingness for execution of the sale deed either in the legal notice
marked under Ex.A2 or in the plaint. The notice marked under Ex.A2 would
blame the defendant that she orally communicated that she was not interested in
selling the house and that she intended to cancel the agreement. If the
defendant really communicated the same to the plaintiff, no such details like
when it was communicated and through whom it was communicated was not
stated by the plaintiff. If the defendant really intended to cancel the agreement,
she would not have extended the time period for further 10 days, for payment of
balance sale consideration, as stated by her in her reply notice marked under
Ex.A3. The conduct of the plaintiff in throwing the blame on the appellant -
defendant that she is not cooperative for sanction of loan, as stated in the plaint
and throwing the blame on the defendant that she was non-communicable
appears only to create an alibi for non-payment of the balance amount within
the stipulated period. As rightly contended by the learned counsel for the
appellant - defendant, there was no term stipulated in the agreement that the
defendant has to co-operate with the plaintiff for obtaining the house loan.
32. PW.1 also stated in his cross-examination that the defendant did not
cooperate for getting house loan, as she had not provided with Nil EC, sanction
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plan and not permitted inspection of house by bank officials, etc. But admitted
in his cross-examination that without the above documents itself, Canfin Homes
Limited sanctioned loan to him. He also admitted that he had not filed loan
sanction order or copy issued by Canfin. The same would disclose that he could
obtain housing loan from Canfin without the above documents as contended by
him, but simply throwing the blame on the defendant about her non-cooperation
in obtaining the loan.
33. If the defendant was not communicable to him, he could have addressed a
letter through his advocate as he had already issued notice to her vide Ex.A2.
But, not issuing reply to Exs.A3 to A5 and remaining silent would show that the
conduct of the plaintiff is not unblemished. The plaintiff who approaches the
Court seeking an equitable relief must prove his conduct blemishless. But all
these aspects pointed above would prove that the conduct of the plaintiff is not
unblemished and that he is not entitled for specific performance of agreement of
sale dated 26.05.2003.
P O I N T No.4:
Whether the plaintiff could seek the relief of specific performance of sale
without challenging the cancellation of agreement of sale?
34. The learned counsel for the appellant - defendant contended that the
plaintiff is not entitled for specific performance of agreement sale without
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challenging the cancellation of termination of agreement of sale and relied upon
the judgment of the Hon'ble Apex Court in I.S.Sikandar (Dead) by LRs. and
Others v. K.Subramani (cited supra), wherein it was held that:
"37. As could be seen from the prayer sought for
in the original suit, the plaintiff has not sought
for declaratory relief to declare the termination
of agreement of sale as bad in law. In the
absence of such prayer by the plaintiff the
original suit filed by him before the trial court
for grant of decree for specific performance in
respect of the suit schedule property on the basis
of Agreement of Sale and consequential relief of
decree for permanent injunction is not
maintainable in law.
38. Therefore, we have to hold that the relief
sought for by the plaintiff for grant of decree for
specific performance of execution of sale deed
in respect of the suit schedule property in his
favour on the basis of non existing Agreement of
Sale is wholly unsustainable in law."
35. He also relied upon the judgment of the Hon'ble Apex Court in
Mohinder Kaur v. Sant Paul Singh (cited supra), wherein also as per the facts
of the said case, the agreement was cancelled by the appellant on 01.09.1989
and the consideration already paid confiscated under intimation to the
respondent and the respondent never challenged the communication of
cancellation. The Hon'ble Apex Court by relying upon the judgment in
I.S.Sikandar (Dead) by LRs. and Others v. K.Subramani (cited supra), held
that:
"9. We are of the considered opinion that merely
because the respondent may not have been
satisfied by the intimation given by the appellant
regarding release of the property from mortgage,
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it cannot be construed as readiness and
willingness on part of the respondent and his
capacity to perform his obligations under the
agreement, particularly when he is stated to have
subsequently migrated to America and in which
circumstance he executed the power of attorney
in favour of PW1. The relief of specific
performance being discretionary in nature, the
respondent cannot be held to have established
his case for grant of such relief. The conclusions
of the High Court, both on aspects of readiness
and willingness of the respondent and lack of
due intimation by the appellant to the respondent
regarding redemption of the mortgage are held
to be unsustainable."
36. As seen from the facts of this case, the defendant after issuing notice to
the plaintiff extending the time for payment of balance sale consideration after
the 45 days time stipulated in the agreement is completed and as the plaintiff did
not come forward to comply his obligation cancelled the agreement of sale
dated 26.05.2003 and returned the money paid by the plaintiff under the
agreement. Though the plaintiff contended that it was unilateral cancellation,
without challenging the same, whether he could file a suit for specific
performance is the moot question raised in this appeal. As seen from the
judgments of the Hon'ble Apex Court, it was held that the respondent - plaintiff
without seeking a declaratory relief to declare the termination of the agreement
of sale as bad in law, could not seek for the relief of specific performance and
the trial court committed a mistake in granting the decree for specific
performance of agreement of sale dated 26.05.2003. As such, this point is also
answered in favour of the appellant holding that the plaintiff could not seek the
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relief of specific performance without challenging the cancellation of agreement
of sale.
P O I N T No.5:
Whether the plaintiff is entitled for the alternate relief of return of
Rs.1,00,000/- with interest?
37. The main dispute between the parties is with regard to the payment of
Rs.1,00,000/-. The plaintiff contended that he paid Rs.5,60,000/- towards part
sale consideration on different dates as mentioned below:
Sl. Date Type of Transaction Amount (in Rs.)
No.
1. 26.05.2003 As per agreement Rs.1,00,000/-
2. 28.05.2003 Account Transfer Rs.50,000/-
3. 28.05.2003 Cheque No.044091 Rs.50,000/-
4. 06.06.2003 Account Transfer Rs.1,00,000/-
5. 06.06.2003 Account Transfer Rs.1,00,000/-
6. 06.06.2003 Account Transfer Rs.1,00,000/-
7. 06.06.2003 Account Transfer Rs.60,000/-
Total: Rs.5,60,000/-
The defendant objected to the same and stated that she received only
Rs.4,60,000/- but not Rs.5,60,000/- as contended by the plaintiff. There was no
dispute with regard to the payments mentioned at Sl.Nos.4 to 7 in the plaint.
The plaintiff contended that on the date of agreement of sale, he paid
Rs.1,00,000/- to the defendant, which was acknowledged by her under Ex.A1.
The defendant disputed that she received the said amount. She contended that
the plaintiff persuaded her to sign on Ex.A1 agreement dated 26.05.2003
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containing a recital of payment of Rs.1,00,000/- by handing over a self-drawn
cheque for Rs.50,000/- and promising to credit Rs.50,000/- to her husband's
account and took details of the account of her husband. The self-drawn cheque
could not be encashed as the plaintiff did not sign on the reverse of the same
and hence she returned the un-encashed cheque to the plaintiff. She stated that
the plaintiff transferred an amount of Rs.50,000/- to the account of her husband
on 26.05.2003 after going to Chennai. Thus, she admitted the receipt of
Rs.50,000/- on 26.05.2003, but not Rs.1,00,000/- as acknowledged by her under
the agreement of sale. With regard to the amount of Rs.50,000/- alleged to have
transferred to the account of her husband on 28.05.2003, she denied the same.
She admitted the receipt of cheque No.044091 for Rs.50,000/- , but stated that it
was credited on 30.05.2003, but not on 28.05.2003 as alleged by the plaintiff.
Thus, the defendant admitted receipt of Rs.4,60,000/- as follows:
Sl. No. Date of Credit Amount (in Rs.)
1. 26.05.2003 Rs.50,000/-
2. 30.05.2003 Rs.50,000/-
3. 06.06.2003 Rs.1,00,000/-
4. 06.06.2003 Rs.1,00,000/-
5. 06.06.2003 Rs.1,00,000/-
6. 06.06.2003 Rs.60,000/-
Total: Rs.4,60,000/-
38. The defendant at the earliest occasion itself in Ex.A3 reply categorically
stated that she received only Rs.4,60,000/-. She filed Exs.B7 and B8 statements
of account of her husband which would show the remittances made by the
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plaintiff through the bank. The said statements of the account were not disputed
by the plaintiff in the cross-examination.
39. In Ex.A2, plaint and the chief-affidavit of PW.1 also, the plaintiff
categorically pleaded that Rs.1,00,000/- was paid on the date of agreement of
sale on 26.05.2003. He did not plead any payment before the date of the
agreement on 26.05.2003. But contrary to the said pleadings, the plaintiff had
introduced a receipt of Rs.50,000/- under Ex.A6 belatedly after trial. The
defendant denied receipt of any amount under Ex.A6. As there is no plea in the
plaint or the suit notice under Ex.A2 that any amount was paid on 21.05.2003,
no such evidence without plea could be looked into.
40. PW.1 in his cross-examination dated 13.02.2006 stated that he paid
Rs.50,000/- on the date of agreement of sale and again stated that on 21.05.2003
he paid Rs.50,000/- in cash to the defendant. A cash receipt was also issued to
him by the defendant, but the same was not readily available with him. He
stated that he was not aware that for payment of Rs.20,000/- or above, the
payment should be made through cheque.
41. He further stated that on 26.05.2003, he paid Rs.50,000/- in cash and
another Rs.50,000/- through cheque. The amount of Rs.50,000/- cash was in
Rs.500/- denominations. He had taken Rs.50,000/- from his friend B.Satish.
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42. The said friend of PW.1 by name B.Satish was examined as PW.2. But,
he did not speak about the lending of Rs.50,000/- cash to PW.1 by him.
43. PW.2 in his cross-examination stated that on 21.05.2003, Rs.50,000/- was
paid. Then, the plaintiff left for Chennai on the same day. On 26.05.2003,
another sum of Rs.50,000/- was paid in cash. On 26.05.2003, the plaintiff left
for Chennai and from there he transferred Rs.50,000/- to the account of the
husband of the defendant. Subsequently, the plaintiff transferred Rs.4,60,000/-
to the account of the defendant.
44. If the above evidence of PWs.1 and 2 is considered, the plaintiff PW.1
had paid Rs.50,000/- on 21.05.2003, Rs.1,00,000/- on 26.05.2003 and
Rs.4,60,000/- subsequently. As such, the total amount paid would be
Rs.6,10,000/-. The amount paid by the plaintiff as per the version of PWs.1 and
2 should be Rs.6,10,000/- but not Rs.5,60,000/-. But the plaintiff was seeking
refund of only Rs.1,00,000/- in the plaint prayer which would show that the
plaintiff still sticks to Rs.5,60,000/-, which was set up by him from the
beginning. The above contradictions about the payment would clearly support
the case of the defendant that no amount was paid by the plaintiff except those
reflected in Ex.B8 statement of account. Once the payments alleged by the
plaintiff in his pleadings do not match with his evidence, the defendant's case
that no amount was paid under Ex.A1 on the date of agreement as recited
therein is probobalized.
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45. The Hon'ble Apex Court in Parvinder Singh v. Renu Gautam and
Others 21, held that:
"An enquiry into reality of transaction is not
excluded merely by availability of writing
reciting the transaction. Tyagaraja Vs.
Vedathanni [AIR 1936 PC 70] is an authority
for the proposition that oral evidence in
departure from the terms of a written deed is
admissible to show that what is mentioned in the
deed was not the real transaction between the
parties but it was something different."
46. If any payment was made by the plaintiff prior to the date of agreement
on 26.05.2003, he would not have omitted to mention the same in Ex.A1. There
was no whisper of the pre-agreement payment in Ex.A2 legal notice issued by
the plaintiff or in the plaint or in his chief-affidavit. If such payment was made,
it would not have been omitted by the plaintiff. It would disclose the conduct of
the plaintiff in taking undue advantage of the recital in Ex.A1. His giving an
invalid cheque and rushing with Ex.A2 legal notice, which was given much
prior before the expiry of 45 days, but served after expiry of 45 days would
create any amount of suspicion about his conduct.
47. Ex.A6 receipt was not filed even during the examination of PWs.1 and 2.
It was filed much later. DW.1 denied the signature on Ex.A6 as that of her in
her cross-examination dated 27.06.2006.
2004 (4) SCC 794
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48. The plaintiff filed an application for sending Ex.A6 to the hand writing
expert for comparison, but the same was rejected by the trial court as there was
no pleading on the side of the plaintiff about the execution of Ex.A6 receipt by
the defendant on 21.05.2003 for Rs.50,000/-. The trial court dismissed the said
application observing that no amount of evidence could be looked into upon a
plea, which was never put forward. The trial court rightly observed that even
then, the advocate for the plaintiff did not choose to get the plaint amended, as
such, had not placed any reliance upon Ex.A6. The said finding became final,
as the same was not challenged by the respondent - plaintiff. As such, no
reliance could be placed upon Ex.A6. Thus, the plaintiff failed to prove that he
paid Rs.1,00,000/- more than Rs.4,60,000/- refunded by the defendant on
06.08.2003. The defendant remitted the entire amount of Rs.4,60,000/- received
by her, as evident from Exs.B7 and B8, which were not in dispute. As such, the
plaintiff is not entitled for the alternative relief of return of Rs.1,00,000/- with
interest.
P O I N T No.6:
To what result?
49. As the conduct of the plaintiff is blame-worthy from the beginning and as
he failed to pay the balance amount within 45 days as stipulated under Ex.A1,
and also within the extended period expired on 20.07.2003 and failed to issue
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any reply to the notices issued by the defendant marked under Exs.A3 to A5 and
accepted the refund of the amount and failed to file the suit immediately after
refund of the amount and not sought for any relief to declare the termination of
the agreement of sale as bad in law, he is not entitled for the equitable relief of
specific performance. The trial court committed an error in decreeing the suit
for specific performance of agreement of sale. As such, the same is liable to be
set aside.
50. In the result, the Appeal Suit is allowed setting aside the judgment and
decree of the trial court in O.S.No.175 of 2003 dated 21.02.2007. No order as
to costs.
As a sequel, miscellaneous applications, pending in this appeal if any,
shall stand closed.
____________________
Dr. G.RADHA RANI, J
Date: 12th December, 2023
Nsk.
