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36. The submission has a fallacy for two basic reasons.
Firstly, as held above, cause of action in two suits being different, a suit for specific performance could not have been instituted on the basis of cause of action of the first suit. Secondly, merely because pleadings of both suits were similar to some extent did not give any right to the defendants to raise the plea of bar contained in Order II Rule 2 of CPC. It is the cause of action which is material to determine the applicability of bar under Order II Rule 2 and not merely the pleadings. For these reasons, it was not necessary for plaintiff to obtain any leave from the court as provided in Order II Rule 2 of CPC for filing the second suit."
10. In the presents suits on hand, though the cause of action seem to be similar, by going through the entire pleadings of both suits, one can easily infer that the first suit filed for bare injunction is to restrain the defendants from alienating the property by making out a prima facie case, the balance of convenience and irreparable loss likely to be caused to the plaintiffs, whereas the second suit for specific performance has been filed pleading about non-performance of part of agreement by the defendants and also readiness and willingness of the plaintiffs to perform their part. Therefore, the cause of action in both the suits are distinct and the second suit for specific performance is not barred under Order 2 Rule 2 CPC. This issue is answered accordingly.
11. Issue No.2 in Tr.C.S.No.577 of 2011 :
The issue about ownership of the suit properties does not arise at all, as there is no dispute with respect to the ownership. Having admitted the ownership, the plaintiffs entered into the sale agreement with the defendants. Admittedly, D1 is the owner of 'A' schedule properties and D2 to D6 are the owners of 'B' schedule properties. D2 and D8 are the legal heirs of D1. As per Ex.D.10, before entering into the sale agreement, the plaintiffs also perused the original documents and received the xerox copies of the documents. Therefore, this Court holds that the defendants are the owners of the suit schedule properties.
12. Issue Nos.1 and 2 in C.S.No.994 of 2001 :
There is no dispute that agreement for sale of the suit schedule properties was entered into between the plaintiffs and defendants on 10.05.1997 and the same is marked as Ex.P.17. The factum remains that the sale consideration was fixed at Rs.49 lakhs and a sum of Rs.9 lakhs was paid as advance and further payments of Rs.3 lakhs and Rs.1 lakh were paid on 10.09.1997 and 19.10.1997 which are also not in dispute. As per the recitals of the agreement, the sale deed shall be completed within a period of 18 months from the date of agreement. The vendor agreed to hand over vacant possession of the land occupied in Door Nos.56, 57, 58 and 59. The vendors undertook to hand over the title deeds of the schedule mentioned properties for inspection and scrutiny. The purchasers agreed to vacate the tenant namely Bharat Medicals carrying on business in Door No.60. The vendors undertook to produce Encumbrance Certificate from 01.01.1963 to 10.10.1997. It is contended on the side of the plaintiffs that the defendants neither handed over the title deeds of the schedule mentioned properties nor the Encumbrance Certificate and they have also not vacated the tenants as agreed upon in the agreement.
13. The learned counsel appearing for the defendants per contra contend that the plaintiffs scrutinized the title deeds and returned and the sale sale deed could not be executed as the plaintiffs are not ready and willing to perform their part of contract by paying the balance sale consideration. It is further contended on the side of the defendants that mainly for the purpose of two marriages of the daughters of the defendants, properties were agreed to be sold and therefore, time is essence of the contract. It is further contended by the defendants that the plaintiffs are not entitled to the equity relief of specific performance when they fail to pay the balance consideration within the stipulated time due to paucity of fund.
14. In the reply notice, Ex.D.24 issued by the defendants, it has been clearly stated that 18 months time was fixed since amounts were required for present family circumstances like the marriage of the daughters of two of the defendants. The plaintiffs issued rejoinder notice to the above reply and the same has been marked as Ex.D.25. In this rejoinder, the plaintiffs in paragraph 4 stated that subsequent payments of Rs.3 lakhs on 10.09.1997 and Rs.1 lakh on 19.10.1997 were paid for the marriage of daughter of one of the defendants. Thus, the defendants impliedly admit that for marriages of the daughters of defendants, part of the sale consideration was paid.
15. The learned counsel for the defendants cited the Judgment of the Hon'ble Supreme Court in His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar reported in (1996) 4 SCC 526 and contended that time is essence of contract when the sale consideration was required for the marriage of daughters of the defendants. The Hon'ble Supreme Court in this Judgment has held as follows :
"1. This is an illustrious case of dilatory tactics by the petitioner who entered into the contract to purchase the land of 500 sq. yds. in the heart of the city of Delhi by agreement dated 27-2-1975. The hard fact is that the defendant was in dire need of money to celebrate his daughter's marriage on 16.05.1975. The agreement was that the draft sale deed should be finalised within seven days and sale deed registered. Time is, therefore, the essence of the contract in this case..."
16. In this case on hand, sale agreement was entered into on 10.05.1997. Time limit of 18 months was fixed. Therefore, before 09.11.1998 balance sale consideration should have been paid and sale deed executed. The marriage invitations of daughters of two defendants are marked as Ex.D.21 and Ex.D.22. Bhuvaneswari and Mythili were given in marriage on 19.08.1998 and 22.11.1998, as per the above documents. Considering the factual aspects of this case, this Court holds that sale agreement was entered into mainly for the purpose of getting marriage of the daughters of the defendants. Therefore, time is essence of the contract.
17. It is well settled that readiness and willingness must be there continuously from the date of agreement up to the date of hearing. For this, the learned counsel appearing for the defendants cited our Hon'ble Supreme Court Judgment, Gomathinayagam Pillai and others v. Palani Swami Nadar, reported in AIR 1967-II-S.C.W.R. page 147. The relevant portion of the decision reads thus :
"The respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the Judicial Committee of the Privy Council in Ardeshir Mama v. Flora Sasson: "In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. (Emphasis supplied)"
18. Readiness is the capacity including the financial position to pay and willingness relates to the conduct of the person. In this case, the defendants contend that the plaintiffs are not having sufficient fund to pay the balance consideration. Though the plaintiffs filed the income tax returns of various years, have not filed income tax returns or any other documents to show the income of the plaintiffs of the relevant years, namely 1997 and 1998. The first plaintiff examined as P.W.1 himself admits during cross-examination that he has not filed any document to show that from the year 1997 to 2001, he was having liquid funds in his hand. He also says that D6 is the statement of accounts of Vysya Bank Ltd., of their business Velmurugan Dresses and the closing balance is shown only as Rs.7,262/-. Ex.D.37 and Ex.D.38 are cheques with returned memo of the Banks. The cheques issued for a paltry amount by D2 were returned with endorsement of insufficient fund.
19. Ex.D.9 and Ex.D.10 are the orders passed by Rent Controller under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act. This clearly discloses that the first plaintiff had been in default in paying rent from 01.07.1996 to 30.09.1999. Thus the first plaintiff was not even in a position to pay the rent to the landlord. Thus from the above factors, it is crystal clear that the plaintiffs were not capable of paying the balance consideration and therefore, this Court holds that the plaintiffs were never ready and willing to pay the balance consideration.
20. As far as stipulation in the agreement as to the production of documents and Encumbrance Certificate, in the reply notice itself, the defendants have stated that the original title deeds were scrutinised by the plaintiffs at the time of execution of sale agreement itself and the defendants also furnished the Encumbrance Certificate. Ex.D.10 is the receipt given by the plaintiffs with respect to the document. In this, it has been specifically mentioned that original documents were returned and the plaintiffs received the xerox copies of the documents from the first defendant on 10.05.1997.
21. The learned Senior counsel appearing for the plaintiffs strangely argued that the recitals (since original documents returned) was subsequently inserted. The above argument is contrary to the evidence given by P.W.1. It is also contended that due to subsistence of mortgage, the documents could not have been produced. The property was mortgaged in a society. Both the plaintiffs as well as the defendants during their evidence admit that they took assistance of their lawyers while executing the sale agreement. Therefore, without scrutinizing the original deeds, Ex.D.10, the receipt for original documents would not have been given on the date when the sale agreement was executed. P.W.1 during his cross-examination on 04.08.2008 has deposed that he gave the receipt on 10.05.1997 to the defendants. He does not whisper about any subsequent insertion in the said receipt. The plaintiffs have not denied about the receipt of the encumbrance certificate given by the defendants in their rejoinder.
22. With respect to handing over the vacant possession by vacating the tenants, D.W.2 says in his evidence that there were four tenants including the second plaintiff Devilal at Door No.57, 58, 59 and 61 and excepting the second plaintiff, other three tenants vacated the premises at Door No.57, 58 and 59. The other portions of the said properties are occupied by the plaintiffs as tenants. As far as Bharathi Medicals situated in Door No.60, the plaintiffs agreed to vacate the tenant, as per Clause 5 of the agreement. Therefore, the contention that the defendants fail to perform their part of the contract is unacceptable. For the aforesaid reasons, this Court holds that the plaintiffs were not capable and they were not ready and willing to complete the sale transaction.
23. Issue No.4 in C.S.No.994 of 2001 :
There is no dispute that the plaintiffs have paid advance of Rs.9 lakhs at the time of execution of the sale agreement and further payments of Rs.3 lakhs on 10.09.1997 and Rs.1 lakhs on 19.10.1997, totalling Rs.13 lakhs. As per the agreement, in case of breach committed by the purchaser, the vendor agreed to return the advance deducting the liquidated damages of Rs.1 lakh. Therefore, the plaintiffs are entitled to the advance amount of Rs.13 lakhs paid to the defendants less the liquidated damages of Rs.1 lakh as agreed in the agreement. Therefore, the plaintiffs are entitled to the alternative relief of Rs.12 lakhs, as the plaintiffs alone committed the breach of contract and filed the suit and 9% interest is awarded. This issue is answered accordingly.
24. Issue No.1 in Tr.C.S.No.577 of 2011 :
In view of the decisions for the above issues, the plaintiffs are not entitled to the relief of permanent injunction.
25. Issue No.5 in C.S.No.994 of 2001 and Issue No.3 in Tr.C.S.No.577 of 2011 :
The plaintiffs are entitled to recovery of Rs.12 lakhs from the defendants with 9% interest from the date of plaint till the date of realisation.
In fine, C.S.No.994 of 2001 is partly allowed and the plaintiffs are entitled to get a sum of Rs.12 lakhs from the defendants with 9% interest from the date of plaint till the date of realisation. Tr.C.S.No.577 of 2011 is dismissed. No costs.
28.03.2017 Index : Yes / No tsvn P.KALAIYARASAN, J tsvn Pre-Delivery Common Judgment in C.S.No.994 of 2001 and Tr.C.S.No.577 of 2011 28-03-2017 http://www.judis.nic.in