The defendant who suffered a decree for Specific Performance is the appellant. According to the plaintiff, the 1st defendant entered into an agreement for sale of the suit property measuring about 1 acre in Kuniyamurther Village, Coimbatore District for a total consideration of Rs.13,00,000/- (Rupees Thirteen Lakhs only) and an agreement to that effect was entered into between the parties on 31.12.2005. On the date of the agreement, the plaintiff had paid a sum of Rs.5,00,000/- (Rupees Five lakhs only) as an advance. A period of 3 months was fixed for completion of the sale transaction subject to the condition that the 1st defendant shall repay the loan amount due to the 2nd defendant and obtain the original title deed at the time of the execution of the sale deed, since the 1st defendant failed to discharge the mortgage and obtain the original title deeds, the plaintiff who was ready and willing to perform his part of the contract could not pay the balance of sale consideration. On 10.01.2006, the plaintiff had paid an Additional Advance amount of Rs.50,000/-(Rupees Fifty thousand only). The plaintiff would claim that he was also to put in a possession of the property. Finding that the defendant was not coming forward to execute the sale deed, despite several oral demands, the plaintiff caused a legal notice to be issued on 18.11.2008 to the 1st defendant seeking execution of sale deed. There was no reply. Another legal notice was issued on 18.12.2008, calling upon the 1st defendant to disclose the name of the bank in order to enable the plaintiff to discharge the loan. The suit was filed on 29.12.2008 seeking Specific Performance.
2.The 1st defendant resisted the suit contending that the time was essence of the contract. According to the 1st defendant he could not discharge the mortgage loan because of the failure on the part of the plaintiff to pay the balance sale consideration within the period specified under the agreement. The defendant would further contend that the plaintiff was not ready and willing to perform his part of the contract and therefore he has lost the right to claim Specific Performance. On the above contentions, the learned trial Judge namely, the Principal District Judge, Coimbatore framed the following issues:
1)Whether the plaintiff is entitled to the Specific Performance as prayed for by him?
2)Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in the suit?
3)Whether the plaintiff is entitled to the relief of delivery of possession as prayed for in the suit?
4)Whether the suit filed by the plaintiff is maintainable?
5)Whether the 2nd defendant is entitled to exemplary costs?
3.On the side of the plaintiff PWs-1 to 3 were examined and Exs.A-1 to A-10 were marked. On the side of the defendants D.W-1 and D.W-2 were examined and Exs.B-1 to B-4 were marked. Upon a consideration of the oral and documentary evidence and the law relating to Specific Performance, the learned District Judge by the judgment and decree dated 30.07.2010, decreed the suit for Specific Performance. The learned District Judge relied upon the judgment of the Hon'ble Supreme Court in Chand Rani .v. Kamal Rani [1993 (1) SCC 519] where in it was held that time is not the essence of the contract. The learned Principal District Judge also found that the plaintiff has been ready and willing to perform his part of the contract.
4.Aggrieved by the said judgment and decree, the first defendant has filed the above appeal.
5.I have heard Mrs.Chitra Sampath, learned Senior Counsel appearing for Mr.T.S.Baskaran, learned counsel for the appellant, and Mr.R.Gandhi, learned Senior Counsel appearing for Mrs.Kanimozhi Mathi learned counsel for the 1st respondent, and Mr.S.V.Chandrasekaran, learned counsel appearing for the 2nd respondent.
6.Mrs.Chitra Sampath, learned Senior Counsel appearing for the appellant would contend that the inaction on the part of the plaintiff for nearly 2 years and 8 months that is from 31.03.2006 [the date fixed for Specific Performance] to 18.11.2008 [the date of which notice seeking execution of sale deed was issued by the plaintiff] would itself show that the plaintiff was not ready and willing to perform his part of the contract as contemplated under
Section 16(C) of the Specific Relief Act. Relying upon the decisions of the Hon'ble Supreme Court in (1) K.S.VAIDYANADAM & Others .v. VAIRAVAN, [1997] 3 SCC 1, (2) SARADAMANI KANDAPPAN .vs. S.RAJALAKSHMI & Others, 2011 (4) CTC 640 & (3) PADMAKUMAR & Others .v. DASAYYAN & Others 2015 (6) CTC 545. The learned counsel would vehemently contend that the plaintiff is not entitled to a decree for Specific Performance because of the delay caused by him in demanding performance. The learned Senior Counsel would submit that the agreement is dated 31.12.2005. The period of three months was fixed under the agreement would expire on 31.03.2006. The plaintiff had made the very first demand for execution of sale deed only on 18.11.2008 that is nearly two years and eight months after the date fixed for Performance. Though the plaintiff would claim that he has been making oral demands, the same has not been proved by cogent evidence.
7.The learned counsel would further contend that the plaintiff has also approached the Court with unclean hands. He has made two false pleas. One regarding payment of Rs.50,000/- (Rupees fifty thousand only) as an additional advance on 10.01.2006, and the other relating to possession of the suit properties. Though he would claim that he was put in a possession of the suit properties. He would admit that it was only symbolic possession of the suit property. Based on the above contentions the following points are famed for determination in the appeal:
1)Whether the plaintiff has been ready and willing to perform his part of the contract through out that is from the date of the agreement till the date of filing of the suit?
2)Whether the plaintiff is guilty of approaching the Court with unclean hands that would dis-entitle him obtaining the discretionary relief of the Specific Performance?
POINT NO.1:
8.Mr.R.Gandhi, learned Senior Counsel appearing for M/s.Kanimozhi Mathi learned counsel for the 1st respondent would any answer to the contention of the learned counsel for the appellant, that the appellant was not ready and willing to perform his part of the contract submit as follows: The contract is a reciprocal one it provides for performance of certain obligation by the parties which are reciprocal in nature. According to the learned senior counsel till the first defendant discharges the mortgage and produces the original title deeds, the plaintiff's obligation is to pay the balance of sale consideration would not arise. He would rely upon the contents of the agreement, and contend that discharge of the mortgage is a pre-condition for execution of the sale deed. It would be useful to refer to the relevant Clause in the agreement which reads as follows:
ek;kpy; 1?k; ghh;l;oahh; ,dp ,d;W Kjy; (3) khj fhyf; bfLtpw;Fs; ,d;iwa njjpapy; brYj;jpa ml;thd;;!; bjhif U:/5.00.000-? eP';fyhf kPjk; cs;s bjhifia ek;kpy; 2?k; ghh;l;of;F brYj;jp j';fs; brhe;j brytpy; j';fs; bgahpnyh my;;yJ jh';fs nfhUk; egh;fs; bgahpnyh 2?k; ghh;l;oahhplk; fpiuak; bgw;Wf; bfhs;s ntz;oaJ/ ek;kpy; 2?tJ ghh;l;oahh; nkw;go brhj;jpid mlkhdk; itj;J bgw;wpUf;Fk; t';fpf;flid fpiuaj; njjpf;Fs; brYj;jp nkw;go brhj;jpw;Fhpa mry; Mtz';fis fpiuaj; njjpad;W 1?k; ghh;l;oahh; trk; xg;gilf;f rk;kjpf;fpwhh;/ A reading of the above Clauses in the agreement would show that the discharge of the mortgage loan is not made a condition precedent for execution of sale deed or for payment of the balance of the sale consideration and execution of the sale deed. It is necessary see as to how the parties understood the contract. PW-1 in his oral evidence would deposed as follows:
ehd; fpiuaj;ij Koj;Jf;bfhs;s jahuhf ,Ug;gjhf mwptpg;g[ mDg;gtpy;iy/ ehd; KG gzj;ija[k bfhLj;j gpd;dh; jhd; 1?k; gpujpthjp t';fp flid jPh;f;f ntz;Lk; vd;W brhd;dhy; rhpjhd;/ 31/3/06?e; njjp tiu ehd; KGj;bjhifa[k; brYj;Jtjw;F ve;j eltof;ifa[k; vLf;ftpy;iy/ The effect of the above admission in cross examination is that the parties have agreed that the mortgage is to be discharged only after payment of the entire sale consideration by the plaintiff. It is also admitted by him that he did not take any steps to pay entire sale consideration on or before 31.03.2006. Mr.R.Gandhi, learned Senior Counsel appearing for M/s.Kanimozhi Mathi learned counsel for the 1st respondent would rely upon paragraph 36 of the judgment in SARADAMANI KANDAPPAN's case (supra) and contend that there is a reciprocal promise and unless it is shown that the defendant has performed his part of the promise the obligation on the part of the plaintiff will not arise. I am unable to agree. On the contents of the agreement set out above, I do not find that the discharge of the loan is made a pre-condition for payment of the balance of sale consideration. PW-1 would also admit that the defendants agreed to discharge the loan only after he paid the entire sale consideration. Therefore, the contentions of the learned Senior Counsel appearing for the 1st respondent that the contract contains a reciprocal Clause and the obligation to pay the balance of sale consideration would arise only on the discharge of the mortgage loan cannot be accepted. Infact, that was not the case of the plaintiff himself. Even in the judgment relied upon by the Senior Counsel it has been pointed out that the contract contains two different streams of provisions for performance and one that relates to payment of balance of sale consideration is not dependent upon the performance of the obligation by the vendors. The order of the performance of reciprocal promises will not depend on the order, in which the terms are reduced in writing, the order of performance should have been expressed in the agreement. Unless there is such express provision in the agreement the appellant's contention that there are reciprocal promises and they have to be performed in the order set out in the agreement cannot be accepted. In the light of the what has been laid down by the Hon'ble Supreme Court it cannot be said that the two Clauses of the suit agreement extracted above are reciprocal promises and that performance of one would depend upon the performance of the other. Admittedly, the plaintiff had not made any written demand prior to the issuance of the legal notice dated 18.11.2008, there is no evidence to support the claim of the plaintiff, that several oral demands were made. Therefore, in the light of the law laid down by the Hon'ble Supreme Court in three decisions namely; (1) K.S.VAIDYANADAM & Others .v. VAIRAVAN, [1997] 3 SCC 1, (2) SARADAMANI KANDAPPAN .v. S.RAJALAKSHMI & Others, 2011 (4) CTC 640 & (3) PADMAKUMAR & Others .v. DASAYYAN & Others 2015 (6) CTC 545. I am constrained to hold that the plaintiff had infact lost his right to seek Specific Performance, because of his inaction for over a period of two years and eight months. Ofcourse, the learned trial Judge had followed that Chand Rani's case and concluded that time is not the essence of the contract. But the development of law between 2011 and 2016 is infact a dilution of the principle that time is not the essence of the contract relating to sale of immovable properties. For these reasons, I am unable to concur with the conclusions of the learned District Judge who held that the plaintiff is entitled to Specific Performance. Point number 1 is answered against the respondent plaintiff.
POINT NO.2:-
9.Mrs.Chitra Sampath, learned Senior Counsel appearing for the appellant, would vehemently contend that the respondent/plaintiff has approached the Court with a false case. According to her he claims payment of further advance of Rs.50,000/- (Rupees fifty thousand only) on 10.01.2006. No documentary evidence has been filed in support of the payment of the said Rs.50,000/-(Rupees fifty thousand only). P.W-3 one Jothi has been examined to prove the said payment of Rs.50,000/-(Rupees fifty thousand only). In his chief examination, affidavit it is stated that Rs.50,000/- (Rupees fifty thousand only) was paid by the plaintiff to the 1st defendant on 10.01.2006 at Nehru Stadium, when he went for walking. The relevant portion of his evidence is as follows:
thjp rhkpag;gd;. 1?k; gpujpthjp kndhfhplk; U:/5.00.000-?j;ij bfhLj;jhh;/ mjid kndhfh; bgw;Wf;bfhz;lhh;/ mf;hpbkz;l; njjpf;F gpd;dpl;L 10 ehl;fs; fHpj;J 10/01/06?k; njjp ehd; neU !;nloaj;jpy; fhiy neuk; thf;fp'; brd;W bfhz;oUe;njd;/ mJ rkak; kndhfUk; rhkpag;gDk; epd;W ngrpf; bfhz;oUe;jhh;fs;/ ehd; mth;fis ghh;j;J ngrpndd;/ mJ rkak; rhkpag;gd; thjp 1?k; gpujpthjp kndhfhplk; :U/50.000-?j;ij bfhLj;jhh;/ kndhfh; mij bgw;Wf;bfhz;lhh;/ His evidence, in my opinion is wholly unnatural. In cross examination, he would depose that he was walking outside Nehru Stadium and no receipt was issued for payment of Rs.50,000/-(Rupees fifty thousand only). The plaintiff has come forward with the case of the payment of additional advance of Rs.50,000/- (Rupees fifty thousand only) knowing fully that he cannot establish the same and no explanation is forthcoming from the plaintiff for not having either obtained an endorsement in the agreement itself or for not obtaining a separate receipt for a sum of Rs.50,000/- (Rupees fifty thousand only). The plaintiff would also contend that he was put in a possession of the property, pursuant to the agreement. The agreement does not contain any recital as to possession. Further after amendment of the Registration Act inserting Section 17A in the Registration Act by the Tamil Nadu Amendment Act 48 of 2001 which came into the force on 20.04.2001, a document which the evidences handing over possession in part performance of the agreement can only be by way of Registered Instrument Act. Admittedly, Ex.A-2 agreement is not a registered document and it does not also recite possession having been handed over to the plaintiff. Therefore, the claim of the plaintiff that he was put in a possession is also found to be false. Even in the plaint, the plaintiff would claim that the defendant did not take possession from his vendor. The sale in favour of the defendant in the year 1992. Therefore the claim of the plaintiff that he was put in possession is also found to be false. I therefore find that the plaintiff has come with false pleas which would by itself disentitle him from claiming the relief of Specific Performance. Point No.2 is also answered against the respondent/plaintiff. For all these reasons I find that the plaintiff is not entitled to Specific Performance.
10.Though the receipt of the advance amount is admitted by the defendant, the plaintiff has not sought for the alternative relief of refund of the advance. Therefore, in view of the prohibition contained in
Section 22 of the Specific Relief Act, I am unable to grant the alternative relief of refund of advance also.
11.In fine, the appeal is allowed, the judgment and decree of the trial Court is set aside and O.S.No.935 of 2008 will stand dismissed. In the circumstances of the case, I direct the parties to bear their own costs. Consequently the connected miscellaneous petition is closed.
24.01.2017 KP Index: No Internet:No To The Principal District Judge, Coimbatore.
R.SUBRAMANIAN.,J.
KP A.S.No.318 of 2011 24.01.2017 http://www.judis.nic.in